interception direction is usually issued by a designated judge upon an application if
he is satisfied, inter alia, that “a serious offence has been or is being or will probably
be committed”.
117 Similarly, the designated judge must be satisfied that there are
reasonable grounds to believe such relevant information will be obtained by the
interception and most importantly, that “Other Investigative procedures have been
applied and have failed to produce the required evidence”.
118
4.3.2 Data Retention
The POPI Act, ECT Act and RICA Act all have provisions on data retention with
different scopes. It is pertinent to note that in all these legislation, it is not explicit
that the purpose of retention is for the investigation and prosecution of crime but one
can safely infer that objective.
The ECT Act, in its section 16, provides for retention of information which may
include personal data.
The RICA places an obligation on telecommunication service provides (and
retailers of telecoms facilities) to obtain and keep copies of certain personal information of consumers like information on his or her full names, identity number,
residential and business address or postal address.
119
The POPI Act also allows for the retention of personal data by a responsible party
in circumstances authorized by law.
120 This circumstance may be interpreted to
include national security interests.
4.4 Data Protection and Electronic Surveillance for Security
and Defence Purposes
The POPI Act, arguably, has the most succinct provision on data protection and
electronic surveillance for security and defence purposes. The RICA also has provisions authorizing electronic surveillance/interception of communications for
national security and defence purposes.
4.4.1 The Scope
With regard to national security matters, the POPI Act provides that it does not apply
to the processing of personal information by or on behalf of a public body “which
117 S16 (5)(a) of RICA.
118 S16 (5)(b), (c) of RICA.
119 Secs. 39(1) and 40(1) of RICA.
120 Section 14(1)(d) of the POPI Act.
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L. A. Abdulrauf
he is satisfied, inter alia, that “a serious offence has been or is being or will probably
be committed”.
117 Similarly, the designated judge must be satisfied that there are
reasonable grounds to believe such relevant information will be obtained by the
interception and most importantly, that “Other Investigative procedures have been
applied and have failed to produce the required evidence”.
118
4.3.2 Data Retention
The POPI Act, ECT Act and RICA Act all have provisions on data retention with
different scopes. It is pertinent to note that in all these legislation, it is not explicit
that the purpose of retention is for the investigation and prosecution of crime but one
can safely infer that objective.
The ECT Act, in its section 16, provides for retention of information which may
include personal data.
The RICA places an obligation on telecommunication service provides (and
retailers of telecoms facilities) to obtain and keep copies of certain personal information of consumers like information on his or her full names, identity number,
residential and business address or postal address.
119
The POPI Act also allows for the retention of personal data by a responsible party
in circumstances authorized by law.
120 This circumstance may be interpreted to
include national security interests.
4.4 Data Protection and Electronic Surveillance for Security
and Defence Purposes
The POPI Act, arguably, has the most succinct provision on data protection and
electronic surveillance for security and defence purposes. The RICA also has provisions authorizing electronic surveillance/interception of communications for
national security and defence purposes.
4.4.1 The Scope
With regard to national security matters, the POPI Act provides that it does not apply
to the processing of personal information by or on behalf of a public body “which
117 S16 (5)(a) of RICA.
118 S16 (5)(b), (c) of RICA.
119 Secs. 39(1) and 40(1) of RICA.
120 Section 14(1)(d) of the POPI Act.
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L. A. Abdulrauf