Intellectual Property Rights from Publicly Financed Research and
R 385
Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act 70 of 2002)Chapter 3 : Applications for, and issuing of, directions and entry warrants23. Oral application for, and issuing of, direction, entry warrant, oral direction or oral entry warrant |
| (1) | An application referred to in section 16(1), 17(1), 18(1), 21(1) or 22(1) may be made orally by an applicant who is entitled to make such an application if he or she is of the opinion that it is not reasonably practicable, having regard to the urgency of the case or the existence of exceptional circumstances, to make a written application. |
| (2) | An oral application referred to in subsection (1) must— |
| (a) | contain the information referred to in section 16(2), 17(2), 21(2) or 22(2), whichever is applicable; |
| (b) | indicate the particulars of the urgency of the case or the other exceptional circumstances which, in the opinion of the applicant, justify the making of an oral application; and |
| (c) | comply with any supplementary directives relating to oral applications issued under section 58. |
| (3) | Notwithstanding sections 2 and 12 or anything to the contrary in any other law contained, a designated judge may, upon an oral application made to him or her in terms of subsection (1), issue the direction or entry warrant applied for. |
| (4) | A direction or an entry warrant may only be issued under subsection (3)— |
| (a) | if the designated judge concerned is satisfied, on the facts alleged in the oral application concerned, that— |
| (i) | there are reasonable grounds to believe that the direction or entry warrant applied for could be issued; |
| (ii) | a direction is immediately necessary on a ground referred to in section 16(5)(a), 17(4) or 21(4)(a), whichever is applicable, or an entry warrant is immediately necessary on a ground referred to in section 22(4); and it is not reasonably practicable, having regard to the urgency of the case or the existence of exceptional circumstances, to make a written application for the issuing of the direction or entry warrant applied for; and |
| (b) | on condition that the applicant concerned must submit a written application to the designated judge concerned within 48 hours after the issuing of the direction or entry warrant under subsection (3). |
| (5) | A direction or entry warrant issued under subsection (3) must be in writing. |
| (6) | Section 16(5)(b) and (c), (6) and (7), 17(5) and (6), 21(4)(b), (5) and (6) or 22(5), (6), (7) and (8), whichever is applicable, applies, with the necessary changes, in respect of the issuing of a direction or an entry warrant under subsection (3). |
| (7) | Notwithstanding subsection (5), a designated judge may, upon an oral application made to him or her in terms of subsection (1), orally issue the direction or entry warrant applied for. |
| (8) | An oral direction or oral entry warrant may only be issued under subsection (7)— |
| (a) | if the designated judge concerned is satisfied, on the facts alleged in the oral application concerned, that— |
| (i) | it is not reasonably practicable, having regard to the urgency of the case or the existence of exceptional circumstances to issue the direction or entry warrant applied for in writing; or |
| (ii) | any other exceptional circumstances exist which justify the issuing of an oral direction or oral entry warrant; and |
| (b) | on condition that the applicant concerned must submit a written application to the designated judge concerned within 48 hours after the issuing of the oral direction or oral entry warrant under subsection (7). |
| (9) | Section 16(5)(b) and (c), (6)(b), (c) and (d) and (7), 11(5)(b), (c) and (d) and (6), 21(4)(b), (5)(b), (c), (d) and (e) and (6) or 22(5)(b) and (c), (6), (7) and (8), applies, with the necessary changes, in respect of the issuing of an oral direction or oral entry warrant under subsection (7). |
| (10) | A designated judge who issues an oral direction or oral entry warrant under subsection (7) must— |
| (a) | immediately after the issuing thereof, inform the applicant and, if applicable, the postal service provider or telecommunication service provider to whom it is addressed, orally of such an oral direction or oral entry warrant, including the— |
| (i) | contents thereof; and |
| (ii) | period for which it has been issued; and |
| (b) | confirm that oral direction or oral entry warrant in writing within 12 hours after the issuing thereof. |
| (11) | A designated judge who issued— |
| (a) | a direction or an entry warrant under subsection (3); or |
| (b) | an oral direction or oral entry warrant under subsection (7), or, if he or she is not available, any other designated judge who would have been entitled to issue such direction, entry warrant, oral direction or oral entry warrant must, upon receipt of a written application submitted to him or her in terms of subsection (4)(b) or (8)(b), reconsider that application whereupon he or she may confirm, amend or cancel that direction, entry warrant, oral direction or oral entry warrant. |
| (12) | If a direction, entry warrant, oral direction or oral entry warrant is— |
| (a) | confirmed or amended in terms of subsection (11), the designated judge concerned must forthwith in writing inform— |
| (i) | the applicant concerned; and |
| (ii) | if applicable, the postal service provider, telecommunication service provider or decryption key holder concerned, of such confirmation or amendment; or |
| (b) | cancelled in terms of subsection (11), section 25(3), (4) and (5) applies with the necessary changes. |
