Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act 70 of 2002)Chapter 8 : General prohibitions and exemptions46. Exemptions |
(1)
| (a) | The Minister may, upon application and in consultation with the relevant Ministers, exempt any— |
| (i) | Internet service provider from complying with section 30(4) in respect of the facilities and devices referred to in section 30(2)(FAQ)(ii); 20 |
| (ii) | telecommunication service provider or any other person from one or all of the prohibited acts referred to in section 45(1); or |
| (iii) | law enforcement agency from the prohibited acts of possessing and purchasing referred to in section 45(1), for such period and on such conditions as the Minister determines. |
| (b) | A condition referred to in paragraph (a) may include that an Internet service provider to whom an exemption has been granted under paragraph (FAQ)(i) must pay as an annual contribution to the Fund such amount as the Minister determines in each case. |
| (2) | The Minister may only grant an exemption under subsection (1)(FAQ) if he or she is satisfied that— |
| (a) | in the case of an exemption under subsection (1)(FAQ)(i), the Internet service provider concerned carries on such a small business that he or she cannot comply with section 30(4); or |
| (b) | in the case of an exemption under subsection (1)(FAQ)(ii), the purpose for which the listed equipment will be manufactured, assembled, possessed, sold, purchased or advertised is reasonably necessary; and |
| (c) | such exemption is in the public interest; or |
| (d) | special circumstances exist which justify such exemption. |
(3)
| (a) | An exemption under subsection (1)(FAQ) must be granted by issuing to the— |
| (i) | Internet service provider; |
| (ii) | telecommunication service provider or other person; or |
| (iii) | law enforcement agency, concerned, a certificate of exemption in which his or her or its name and the scope, period and conditions of the exemption are specified. |
| (b) | A certificate of exemption issued under paragraph (FAQ)— |
| (i) | must be published in the Gazette', and |
| (ii) | becomes valid upon the date of such publication. |
(4)
| (a) | The Minister must, before he or she publishes a certificate of exemption in terms of subsection (3)(b)(i), table such certificate in the National Assembly for approval. |
| (b) | The National Assembly may reject a certificate tabled in terms of paragraph (a) within two months after it has been tabled, if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session, within 14 days after the commencement of its next ensuing ordinary session. |
| (c) | If the National Assembly rejects such a certificate, the Minister may table an amended certificate in the National Assembly. |
| (d) | If the Minister tables an amended certificate and the National Assembly— |
| (i) | approves the amended certificate, the Minister must publish that certificate in terms of subsection (3)(b)(i) within one month of the National Assembly's approval; or |
| (ii) | rejects the amended certificate within two months after it has been tabled, if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session, within 14 days after the commencement of its next ensuing ordinary session, paragraph (c) and this paragraph apply. |
| (e) | If the National Assembly does not reject a certificate as contemplated in paragraph (b) or (d)(ii)— |
| (i) | such certificate will be deemed to have been approved by the National Assembly; and |
| (ii) | the Minister must publish that certificate in terms of subsection (3)(b)(i) within one month thereafter. |
| (5) | A certificate of exemption contemplated in subsection (3) may at any time in like manner be amended or withdrawn by the Minister. |
| (6) | An exemption under subsection (1)(FAQ) lapses upon— |
| (a) | termination of the period for which it was granted; or |
| (b) | withdrawal of the relevant certificate under subsection (5). |
| (7) | If an exemption has been granted to an Internet service provider under subsection (1)(FAQ)— |
| (a) | that Internet service provider will be subject to all the other applicable provisions of this Act; and |
| (b) | the law enforcement agency which made the application for the issuing of the direction which is addressed to such Internet service provider, must make available the necessary facilities and devices to execute that direction. |