IMB 74

PROPOSED MERGING OF CHAPTERS 3 AND 4 AS CONTAINED IN THE WORKING DOCUMENT (DRAFT 2) DATED 19/02/2002.

CHAPTER 3

APPLICATIONS [AND REQUESTS] FOR, AND ISSUING OF, DIRECTIONS

Application for, and issuing of, interception direction

11. (1) An applicant may apply to a judge for the [issue] issuing of an interception direction [if he or she is satisfied that there are reasonable grounds to believe that—

(a) a serious offence has been or is being or will {probably / possibly} be committed and cannot be investigated in another appropriate manner;

(b) the gathering of information concerning an actual threat to the public health or safety, national security or compelling national {economic} interests of the Republic is necessary;

(c) the gathering of information concerning a potential threat to the public health or safety or national security of the Republic is necessary and cannot be obtained in another appropriate manner;

(d) the making of a request for the provision, or the provision to the competent authorities of a country or territory outside the Republic, of any assistance in connection with, or in the form of, the interception of communications relating to organised crime or any offence relating to terrorism, is in—

(i) accordance with an international mutual assistance agreement; or

(ii) the interests of the Republic's international relations or obligations,

and that the offence cannot be investigated, or the information cannot be obtained, in another appropriate manner; or

(e) the gathering of information concerning property which is or could probably be an instrumentality of a serious offence or is or could probably be the proceeds of unlawful activities is necessary and cannot be obtained in another appropriate manner.

(2) An application for a reason mentioned in—

(a) subsection (1)(a) or (d), must be made by an applicant referred to in paragraph (a) or (d) of the definition of "applicant";

(b) subsection (1) (b), (c) or (d), must be made by an applicant referred to in paragraph (b) or (c) of the definition of "applicant"; and

(c) subsection (1)(e), must be made by the National Director].

[(3)] (2) Subject to section 16, an application referred to in subsection (1) must be in writing and must—

(a) indicate the identity of the—

(i) applicant [and, if known, the identity of the law enforcement officer who will execute the interception direction];

(ii) person or customer, if known, whose communication is required to be intercepted; and

(iii) postal service provider or telecommunication service provider to whom the direction must be addressed, if applicable;

(b) [indicate the specific matter] specify the ground referred to in subsection [(1)](5)(a) in [respect] terms of which the application is made;

(c) contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application, including a description of the—

(i) nature and location of the facilities from which, or the place at which, the communication is to be intercepted, if known; and

(ii) type of communication which is required to be intercepted, and the basis for believing that evidence relating to the [matter in respect] ground in terms of which the application is made will be obtained through the interception;

[(d) indicate whether other investigative procedures have been applied and have failed to produce the required evidence or must indicate the reason why other investigative procedures reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence;]

[(e)](d) indicate the period for which the interception direction is required to be issued;

[(f)](e) indicate whether any previous application has been made for the [issue] issuing of an interception direction in respect of the same person or customer, facility or place specified in the application and, if such previous application exists, must indicate the current status of that application; and

[(g)](f) comply with any supplementary directives relating to applications for interception directions issued under section 52.

(3) An application [for a reason mentioned] on a ground referred to in—

(a) subsection [(1)] (5)(a) or (d), must be made by an applicant referred to in paragraph (a) or (d) of the definition of "applicant";

(b) subsection [(1)] (5)(b), (c) or (d), must be made by an applicant referred to in paragraph (b) or (c) of the definition of "applicant"; and

(c) subsection [(1)] (5)(e), must be made by the National Director.

[Issue of interception direction

17. (1)](4) Notwithstanding section 2[(1)] or anything to the contrary in any other law contained, a judge may, upon an application made to him or her in terms of [section 9(1)] subsection (1), issue an interception direction.

[(2)](5) An interception direction may only be issued if the judge concerned is satisfied, on the facts alleged in an application concerned that—

(a) there are reasonable grounds to believe that—

(i) a serious offence has been or is being or will {probably / possibly} be committed and cannot be investigated in another appropriate manner; [or]

(ii) the gathering of information concerning an actual threat to the public health or safety, national security or compelling national {economic} interests of the Republic is necessary; [or]

(iii) the gathering of information concerning a potential threat to the public health or safety or national security of the Republic is necessary and cannot be obtained in another appropriate manner; [or]

(iv) the making of a request for the provision, or the provision to the competent authorities of a country or territory outside the Republic, of any assistance in connection with, or in the form of, the interception of communications relating to organised crime or any offence relating to terrorism, is in—

(aa) accordance with an international mutual assistance agreement; or

(bb) the interests of the Republic's international relations or obligations,

and that the offence cannot be investigated, or the information cannot be obtained, in another appropriate manner; or

(v) the gathering of information concerning property which is or could probably be an instrumentality of a serious offence or is or could probably be the proceeds of unlawful activities is necessary and cannot be obtained in another appropriate manner; and

(b) there are reasonable grounds to believe that the—

(i) interception of particular communications concerning the relevant [matter] ground referred to in paragraph (a) will be obtained by means of such an interception direction; and

(ii) facilities from which, or the place where, the communications to be intercepted are being used, or are about to be used, in connection with the relevant [matter] ground referred to in paragraph (a) are commonly used by the person or customer in respect of whom the application for the [issue] issuing of an interception direction is made[; and

(c) other investigative procedures have been applied and have failed to produce the required evidence or reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence and that the offence therefore cannot be investigated, or the information therefore cannot be obtained, in another appropriate manner].

[(3)](6) An interception direction [must be in writing and]

[(a) must indicate the identity of the—

(i) applicant and, if known, the identity of the law enforcement officer {or other person} who is authorised to execute the interception direction;

(ii) person or customer, if known, whose communication is authorised to be intercepted; and

(iii) postal service provider or telecommunication service provider to whom the interception direction is addressed, if applicable;

(b) must, if known, specify the nature and location of the communication facilities, or the place, in respect of which the interception direction has been issued;

(c) must describe the type of communication which is authorised to be intercepted {and the reason mentioned in subsection (2)(a) to which it relates};

(d) may specify conditions or restrictions relating to interceptions authorised therein; and

(e)](a) must be in writing;

(b) must contain the information referred to in subsection (2)(a), (b) and (c);

(c) may specify conditions or restrictions relating to the interception of communications authorised therein; and

(d) may be issued for a period not exceeding three months at a time, and the period for which it has been issued must be specified therein.

[(4)](7) (a) An application [referred to in subsection (1)] must be considered and an interception direction issued without any notice to the person or customer to whom the application applies and without hearing such person or customer.

(b) A judge considering an application [referred to in subsection (1)] may require the applicant to furnish[, in support of his or her application,] such further evidence[, and in the manner, as the judge] as he or she deems necessary.

Application for, and issuing of, archived call-related direction

12. (1) If, in a specific case, only archived call-related information without the actual interception of an indirect communication is required, an applicant may apply to a judge of a High Court {, a regional court magistrate or a magistrate} for the [issue] issuing of an archived call-related direction.

[(2) Section 9(1) and (2) apply with the necessary changes in respect of an application referred to in subsection (1).

(3)](2) An application referred to in subsection (1) must be in writing and must—

(a) indicate the identity of the—

(i) applicant;

(ii) customer, if known, in respect of whom the archived call-related information is required; and

(iii) telecommunication service provider to whom the archived call-related direction must be addressed;

(b) [indicate the specific matter] specify the ground referred to in section [9(1)] 11(5)(a) in [respect] terms of which the application is made;

(c) contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application, including a description of the type of archived call-related information that is required, and the basis for believing that evidence relating to the [matter] ground in [respect] terms of which the application is made will be obtained through the provision of the archived call-related information;

(d) indicate whether the archived call-related information must be—

(i) routed to a designated interception centre specified in the application; or

(ii) provided to the Police Service, the Defence Force, the Agency, the Service, the Directorate or the National Director, whichever is applicable[, and, if known, the identity of the law enforcement officer to whom the archived call-related information must be provided];

[(e) indicate whether other investigative procedures have been applied and have failed to produce the required evidence or must indicate the reason why other investigative procedures reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence;]

[(f)](e) indicate the period for which, and the manner in which, the archived call-related information is required to be provided;

[(g)](f) indicate whether any previous application has been made for the [issue] issuing of an archived call-related direction in respect of the same customer or archived call-related information specified in the application and, if such previous application exists, must indicate the current status of that application; and

[(h)](g) comply with any supplementary directives relating to applications for archived call-related directions issued under section 52.

[Issue of archived call-related direction

18. (1)] (3) Notwithstanding section 3 or anything to the contrary in any other law contained, a judge of a High Court{, a regional court magistrate or a magistrate} may, upon an application made to him or her in terms of [section 10(1)] subsection (1), issue an archived call-related direction.

[(2)](4) [(a)] An archived call-related direction may only be issued if the judge{, regional court magistrate or magistrate} concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that the gathering of archived call-related information is necessary [for a reason mentioned] on a ground referred to in section [17(2)(a)] 11(5)(a).

(5) An archived call-related direction—

(a) must be in writing;

(b) must contain the information referred to in subsection (2)(a), (b), (c), (d) and (e); and

(c) may specify conditions or restrictions relating to the provision of archived call-related information authorised therein.

[(b)] (6) Section [17(4)] 11(3) and (7) applies, with the necessary changes, in respect of an application for, and the issuing of, an archived call-related direction.

[(3) An archived call-related direction must be in writing and—

(a) must indicate the identity of the—

(i) applicant;

(ii) customer, if known, in respect of whom the provision of archived call-related information is authorised; and

(iii) telecommunication service provider to whom the archived call-related direction is addressed;

(b) must describe the type of archived call-related information which is authorised to be provided {and the reason mentioned in section 17(2)(a) to which it relates};

(c) must indicate whether the archived call-related information must be—

(i) routed to an interception centre and, if so, must specify the designated interception centre; or

(ii) provided to the Police Service, the Defence Force, the Agency, the Service, the Directorate or the National Director, whichever is applicable, and, if known, the identity of the law enforcement officer to whom the archived call-related information must be provided;

(d) must specify the period for which, and the form in which, the provision of the archived call-related information is authorised; and

(e) may specify conditions or restrictions relating to the provision of archived call-related information authorised therein.]

Application for, and issuing of, supplementary direction or real-time call-related direction

13. (1) [(a)] If

(a) an interception direction has been issued, the applicant who made the application in respect of the interception direction concerned or, if he or she is not available, any other applicant who would have been entitled to make that application; or

(b) no interception direction has been issued, an applicant, if in a specific case only real-time call-related information on an ongoing basis without the actual interception of an indirect communication is required,

may apply to a judge, in the case of—

(i) paragraph (a), for the [issue] issuing of a supplementary direction; or

(ii) paragraph (b), for the issuing of a real-time call-related direction.

[(b)](2) An application referred to in [paragraph (a)] subsection (1) must be in writing and must—

[(i)](a) contain, with the necessary changes, the information referred to in section [10(3)]12(2)(a), (c), (d) and (e) [(f) and (g)];

[(ii)](b) in the case of subsection (1)(a)—

(i) contain an affidavit setting forth the results obtained from the interception direction concerned from the date of its issuance up to the date on which that [request] application is made, or a reasonable explanation of the failure to obtain such results;

[(iii)](ii) contain proof that an interception direction has been issued; and

(iii) be made at any stage after the issuing of the interception direction concerned, but before the expiry of the period or extended period for which it has been issued;

(c) in the case of paragraph (b), also contain, with the necessary changes, the information referred to in section 12(2)(b); and

[(iv)](d) comply with any supplementary directives relating to applications for supplementary directions or real-time call-related directions issued under section 52.

(4) Section 11(3) applies, with the necessary changes, in respect of an application for the issuing of a real-time call-related direction.

[(2) (a) If no interception direction has been issued, an applicant may, if in a specific case only real-time call-related information on an ongoing basis without the actual interception of an indirect communication is required, apply to a judge for the issue of a real-time call-related direction.

(b) Section 9(1) and (2) apply with the necessary changes in respect of an application referred to in paragraph (a).

(c) An application referred to in paragraph (a) must be in writing and must—

(i) contain, with the necessary changes, the information referred to in section 10(3)(a), (b), (c), (d), (e), (f) and (g); and

(ii) comply with any supplementary directives relating to applications for real-time call-related directions issued under section 51.

Supplementary direction or real-time call-related direction

19. (1)](5) [(a)] Notwithstanding section 3 or anything to the contrary in any other law contained, a judge may, upon an application made to him or her in terms of [section 11(1)] subsection (1), issue a supplementary direction or a real-time call-related direction, as the case may be.

[(b)](6) A supplementary direction or a real-time call-related direction may only be issued if the judge concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that the gathering of real-time call-related information is necessary [for a reason mentioned] on a ground referred to in section [17(2)(a)] 11(5)(a).

(7) A supplementary direction or a real-time call-related direction—

(a) must be in writing;

(b) must contain the information referred to in subsection (2)(a) and (c);

(c) may specify conditions or restrictions relating to the provision of real-time call-related information authorised therein; and

(d) may be issued for a period not exceeding three months at a time, and the period for which it has been issued must be specified therein: Provided that a supplementary direction expires when the period or extended period for which the interception direction concerned has been issued, lapses.

[(c)](8) [Sections 17(3)(e) and (4) and 18(3)(a), (b), (c) and (e) apply] Section 11(7) applies, with the necessary changes, in respect of the issuing of a supplementary direction and a real-time call-related direction[: Provided that a supplementary direction expires when the period or extended period for which the interception direction concerned has been issued, lapses].

[(2) (a) A judge may, upon an application made to him or her in terms of section 11(2), issue a real-time call-related direction.

(b) A real-time call-related direction may only be issued if the judge concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that the gathering of real-time call-related information is necessary for a reason mentioned in section 17(2)(a).

(c) Sections 17(3)(e) and (4) and 18(3)(a), (b), (c) and (e) apply with the necessary changes in respect of the issuing of a real-time call-related direction.]

[Single application for] Application for, and issuing of, interception direction and archived call-related direction or real-time call-related direction, or both

14. (1) If, in a specific case, the interception of an indirect communication and the provision of call-related information, whether archived or real-time or both, are required, an applicant may, subject to sections 11, 12 and 13, in a single application, apply to a judge for the simultaneous [issue] issuing of—

(a) an interception direction; and

(b) an archived call-related direction or a real-time call-related direction; or

(c) an archived call-related direction and a real-time call-related direction.

[(2) Sections 9, 10 and 11(2) apply with the necessary changes in respect of an application referred to in subsection (1).

Simultaneous issue of interception direction and archived call-related direction or real-time call-related direction, or both

21. (1)](2) A judge may, upon an application made to him or her in terms of [section 13(1)] subsection (1) and subject to sections 11, 12 and 13, simultaneously issue—

(a) an interception direction; and

(b) an archived call-related direction or a real-time call-related direction; or

(c) an archived call-related direction and a real-time call-related direction.

[(2) Section 17, 18 and 19(2) apply with the necessary changes in respect of the issue of the relevant directions under subsection (1).]

Application for, and amendment or extension of existing direction

15. (1) The applicant who made the application in respect of an existing direction or, if he or she is not available, any other applicant who would have been entitled to make that application, may, at any [time] stage after the issuing of the existing direction concerned, but before the expiry of the period for which [that direction] it has been issued, apply to a judge for an amendment thereof or the extension of the period for which [the direction concerned] it has been issued.

(2) An application referred to in subsection (1) must be in writing and must—

(a) contain full particulars of the reasons and circumstances alleged by the applicant in support of his or her application;

(b) in the case of an application for the—

(i) amendment of an existing direction, indicate the amendment which is required; or

(ii) extension of the period for which an existing direction has been issued, indicate the period for which the extension is required;

(c) contain an affidavit setting forth the results obtained from the direction concerned from the date of its issuance up to the date on which that application is made, or a reasonable explanation of the failure to obtain such results; and

(d) comply with any supplementary directives relating to applications for the amendment or extension of directions issued under section 52.

[Amendment or extension of existing direction

20. (1)](3) A judge may, upon an application made to him or her in terms of [section 12(1)] subsection (1)

(a) amend an existing direction; or

(b) extend the period for which an existing direction has been issued.

[(2)](4) [The] An existing direction may only be amended or the period for which [an existing direction] it has been issued may only be extended[—

(a)] if the judge concerned is satisfied, on the facts alleged in the application concerned, that the [direction concerned continues to be necessary for a reason mentioned in section 17(2)(a); and

(b)] amendment or extension is necessary for purposes of achieving the objectives of the direction concerned: Provided that the period for which an existing direction has been issued may only be extended for a further period not exceeding three months at a time.

(5) Any amendment of an existing direction or extension of the period for which it has been issued, must be in writing.

[(3)](6) Sections [17(4) and 25] 11(7) and 17 apply, with the necessary changes, in respect of the amendment of an existing direction or the extension of the period for which an existing direction has been issued.

Oral application for, and issuing of, oral interception direction

16. (1) An applicant may make an oral application to a judge for the [issue] issuing of an interception direction if he or she is [satisfied that there are reasonable grounds to believe that—

(a) the immediate interception of a communication is necessary as a result of the—

(i) urgency of the case; or

(ii) existence of any other exceptional circumstances; and

(b)] of the opinion that it is not reasonably practicable, having regard to the urgency of the case or [such] the existence of exceptional circumstances, to make a written application for an interception direction as required by section [9(3)] 11(2).

[(2) Section 9(1) and (2) applies, with the necessary changes, in respect of an oral application referred to in subsection (1).]

[(3)](2) An oral application referred to in subsection (1) must—

(a) contain the information referred to in section [9(3)] 11(2);

(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 52.

[Oral interception direction

22. (1)] (3) A judge may, upon an oral application made to him or her in terms of [section 14(1)] subsection (1), issue an oral interception direction.

[(2)] (4) An oral interception direction may only be issued in terms of subsection (3)

(a) if the judge concerned is satisfied, on the facts alleged in the oral application concerned, that—

(i) there are reasonable grounds to believe that an interception direction could be issued;

(ii) an interception direction is immediately necessary [for a reason mentioned] on a ground referred to in section [17(2)(a)] 11(5)(a); and

(iii) the urgency of the case is such that if the procedure relating to an application for, and the issuing of, an interception direction, as prescribed in section[s] 11 [and 17], is to be followed, it could cause an unnecessary delay in the issuing of such an interception direction; or

(iv) any other exceptional circumstances exist which justify the issuing of an oral interception direction; and

(b) on condition that the applicant concerned must submit a written application to the judge concerned within {24 / 48} hours after the issuing of the oral interception direction .

[(3)](5) Section [17(2), (3) and (4)] 11(3), (5), (6) and (7) applies, with the necessary changes, in respect of an oral application and the issuing of an oral interception direction.

[(4)](6) A judge who issues an oral interception direction in terms of subsection (3)—

(a) or any person authorised thereto in writing by him or her, must [personally and in writing] , as soon as possible thereafter, inform the applicant and, if applicable, the postal service provider or telecommunication service provider to whom it is addressed, [of the issuing] in writing of such an oral interception direction {, including—

(i) the contents thereof; and

(ii) the period for which it has been issued}; and

(b) [(5) The judge who issues an oral interception direction] must, subject to section [26]20, confirm that oral interception direction in writing within 24 hours after the receipt of the written application referred to in subsection [(2)(b)] (4)(b).

Application for, and issuing of, decryption direction

17. (1) [The] If an interception direction has been issued, the applicant who made the application for an interception direction or, if he or she is not available, any other applicant who would have been entitled to make that application, may, at any stage after the issuing of the interception direction concerned, but before the expiry of the period or extended period for which it has been issued, apply to a judge for the [issue] issuing of a decryption direction [if the applicant is satisfied that there are reasonable grounds to believe that—

(a) any indirect communication to which the interception direction concerned applies, or any part of such an indirect communication, consists of encrypted information;

(b) a decryption key holder is in possession of the encrypted information and the decryption key thereto;

(c) the purpose for which the interception direction concerned was issued would be defeated, in whole or in part, if the decryption direction was not issued; and

(d) it is not reasonably practicable for the law enforcement officer {or other person} who executes the interception direction concerned or assists with the execution thereof, to obtain possession of the encrypted information in an intelligible form without the issuing of a decryption direction].

(2) An application referred to in subsection (1) must be in writing and must—

(a) indicate the identity of the—

(i) applicant [and, if known, the identity of the law enforcement officer {or other person} to whom the decryption key must be disclosed or the decryption assistance must be provided];

(ii) customer, if known, in respect of whom the decryption of encrypted information is required; and

(iii) decryption key holder to whom the decryption direction must be addressed;

(b) describe the encrypted information which is required to be decrypted;

(c) specify the—

(i) decryption key, if known, which must be disclosed; or

(ii) decryption assistance which must be provided, and the form and manner in which it must be provided;

[(d) indicate whether other decryption procedures have been applied and have failed to decrypt the encrypted information or must indicate the reason why other decryption procedures reasonably appear to be unlikely to succeed if applied;]

[(e)](d) indicate the period for which the decryption direction is required to be issued;

[(f)](e) indicate whether any previous application has been made for the [issue] issuing of a decryption direction in respect of the same customer or encrypted information specified in the application and, if such previous application exists, must indicate the current status of that application;

[(g)](f) contain an affidavit setting forth the results obtained from the interception direction concerned from the date of its issuance up to the date on which that application is made, or a reasonable explanation of the failure to obtain such results;

[(h)](g) contain proof that an interception direction has been issued; and

[(i)](h) comply with any supplementary directives relating to applications for decryption directions issued under section 52.

[Issue of decryption direction

23. (1)] (3) A judge may, upon an application made to him or her in terms of [section 15(1)] subsection (1), issue a decryption direction.

[(2)] (4) A decryption direction may only be issued—

(a) if the judge concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that—

(i) any indirect communication to which the interception direction concerned applies, or any part of such an indirect communication, consists of encrypted information;

(ii) the decryption key holder specified in the application is in possession of the encrypted information and the decryption key thereto;

(iii) the purpose for which the interception direction concerned was issued would be defeated, in whole or in part, if the decryption direction was not issued; and

(iv) it is not reasonably practicable for the [law enforcement officer {or other person}] authorised person who executes the interception direction concerned or assists with the execution thereof, to obtain possession of the encrypted information in an intelligible form without the issuing of a decryption direction; and

(b) after the judge concerned has considered—

(i) the extent and nature of any other encrypted information, in addition to the encrypted information in respect of which the decryption direction is to be issued, to which the decryption key concerned is also a decryption key; and

(ii) any adverse effect that the issuing of the decryption direction might have on the business carried on by the decryption key holder to whom the decryption direction is addressed.

[(3)](5) A decryption direction [must be in writing and]

(a) [must indicate the identity of the—

(i) applicant and, if known, the identity of the law enforcement officer to whom the decryption key must be disclosed or the decryption assistance must be provided;

(ii) customer, if known, in respect of whom the decryption of encrypted information is authorised; and

(iii) decryption key holder to whom the decryption direction is addressed;

(b) must describe the encrypted information which is required to be decrypted;

(c) must specify the—

(i) decryption key which must be disclosed; or

(ii) decryption assistance which must be provided, and the form and manner in which it must be provided;] must be in writing;

(b) must contain the information referred to in subsection (2)(a), (b) and (c); [and]

[(d)](c) may specify conditions or restrictions relating to decryption authorised therein; and

(d) may be issued for a period not exceeding three months at a time, and the period for which it has been issued must be specified therein: Provided that a decryption direction expires when the period or extended period for which the interception direction concerned has been issued, lapses.

[(4)] (6) Section [17(3)(e) and (4)] 11(7) [apply] applies, with the necessary changes, in respect of the issuing of a decryption direction[: Provided that a decryption direction expires when the period or extended period for which the interception direction concerned has been issued, lapses].

 

[Request] Application for, and issuing of, entry warrant

18. (1) An applicant who—

(a) makes an application referred to in section 11(1) may in his or her application[, include a request] also apply for the [issue] issuing of an entry warrant; or

(b) made an application referred to in section 11(1) or, if he or she is not available, any other applicant who would have been entitled to make that application, may, at any [time] stage after the issuing of the interception direction in respect of which such an application was made, but before the expiry of the period or extended period for which it has been issued, [make a request] apply to a judge for the [issue] issuing of an entry warrant[,

if he or she is satisfied that—

(i) the entry of the premises concerned is necessary for any of the purposes referred to in the definition of "entry warrant"; or

(ii) there are reasonable grounds to believe that it would be impracticable to intercept a communication under the interception direction concerned otherwise than by the use of an interception device installed on the premises].

(2) [A request] An application referred to in subsection (1) must be in writing and must—

(a) indicate—

[(i) if known, the identity of the law enforcement officer who will execute the entry warrant;

(ii)](i) the premises in respect of which the entry warrant is required to be issued;

[(iii)](ii) the specific purpose, referred to in the definition of "entry warrant", for which the entry warrant is required; and

[(iv)](iii) the period for which the entry warrant is required to be issued;

(b) if the application is made after an interception direction has been issued, also—

(i) indicate the identity of the applicant;

(ii) contain an affidavit setting forth the results obtained from the interception direction concerned from the date of its issuance up to the date on which that [request] application is made, or a reasonable explanation of the failure to obtain such results; and

(iii) contain proof that an interception direction has been issued;

(c) indicate whether any previous [request] application has been made for the [issue] issuing of an entry warrant for the same purpose or in respect of the same premises specified in the [request] application and, if such previous [request] application exists, must indicate the current status of that [request] application; and

(d) comply with any supplementary directives relating to [requests] applications for entry warrants issued under section 52.

[Entry warrant

24. (1)](3) A judge may, upon [a request] an application made to him or her in terms of [section 16(1)] subsection (1), issue an entry warrant.

[(2)](4) An entry warrant may only be issued if the judge concerned is satisfied, on the facts alleged in the [request] application concerned, that—

(a) the entry of the premises concerned is necessary for any of the purposes referred to in the definition of "entry warrant"; or

(b) there are reasonable grounds to believe that it would be impracticable to intercept a communication under the interception direction concerned otherwise than by the use of an interception device installed on the premises.

[(3)](5) An entry warrant [must be in writing and]

(a) [must indicate—

(i) [if known, the identity of the law enforcement officer {or other person} who will execute the entry warrant;]

(ii) the premises in respect of which the entry warrant has been issued; and

(iii) the specific purpose, referred to in the definition of "entry warrant", for which the entry warrant has been issued;] must be in writing;

(b) must contain the information referred to in subsection (2)(a) and (b); and

[(b)](c) may contain conditions or restrictions relating to the entry upon the premises concerned as the judge deems necessary.

[(4)](6) An entry warrant may be issued for a period not exceeding three months at a time, and the period for which it has been issued must be specified therein: Provided that an entry warrant expires when—

[(i)](a) the period or extended period for which the interception direction concerned has been issued, lapses;

[(ii)](b) it is executed; or

[(iii)](c) it is cancelled by the judge who issued it or, if he or she is not available, by any other judge,

whichever occurs first.

[(5)](7) Section [17(4)] 11(7) applies, with the necessary changes, in respect of the issuing of an entry warrant.

Reports to judge on progress

19. The judge who issued a direction may—

(a) at the issuing thereof; or

(b) at any stage after the issuing thereof, but before the expiry of the period or extended period for which it has been issued,

in writing require the applicant who made the application in respect of the direction concerned[, or the law enforcement officer who executes that direction,] to report to him or her in writing, at such intervals as he or she [may determine] determines, on—

(i) the progress that has been made towards achieving the objectives of the direction concerned; and

(ii) any other matter which the judge deems necessary.

Cancellation of direction or oral interception direction

20. (1) A judge may cancel an existing direction if—

(a) the applicant concerned [or the law enforcement officer who executes the direction concerned,] fails to submit a report in terms of section [25] 19, if applicable; or

(b) he or she, upon receipt of a report submitted in terms of section [25] 19, is satisfied that the—

(i) objectives of the direction concerned have been achieved; or

(ii) reason for which the direction concerned was issued, has ceased to exist.

(2) The judge who issued an oral interception direction in terms of section 16(3) must cancel that oral interception direction if—

(a) the applicant concerned fails to comply with section [22] 16(2)(b); or

(b) the judge, upon receipt of a written application contemplated in section [22] 16(2)(b), is satisfied, on the facts alleged in that application, that an oral interception direction should not have been issued.

(3) If a judge cancels a direction or an oral interception direction in terms of subsection (1) or (2), as the case may be, he or she must forthwith inform—

(a) the applicant concerned [or the law enforcement officer who executes the direction or oral interception direction concerned]; and

(b) if applicable, the postal service provider, telecommunication service provider or decryption key holder concerned,

of the cancellation.

(4) If an oral interception direction is cancelled in terms of subsection (2)

(a) the contents of any communication intercepted under that oral interception direction [must be regarded as having been obtained in contravention of this Act] will be inadmissible as evidence in any criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act; or

(b) any postal article that was taken into possession under that oral interception direction must be dealt with in accordance with section 29(3).