IS THE MINISTER OF POLICE IN SOUTH AFRICA TELLING THE PUBLIC SOMETHING ABOUT NON-COMPLIANCE WITH RICA?

I listened to news on the radio where the Minister of Police, Mr Fikile Mbalula was quoted as saying the disclosure of the mobile number allegedly used for death threats against Dr Makhosi Khoza will lead to the culprit not being found. I was not sure whether to assume that the Minister does not know the relevant laws or he is telling the public that the laws that have brought a lot of money to other governments through fining mobile operators in other jurisdictions we do not strictly apply in South Africa.

For the record, South Africa brought into law Regulation of Interception of Communications and Provision of Communication -Related Information Act 70 of 2002. This is the law that is popularly known as RICA. This law was necessitated by challenges of international terrorism and other public safety concerns. Mobile phones constitute a big risk for safety in many respects that I do not intend to dwell on here.

Section 40(1)(a) of the RICA provides , subject to paragraph (b), an electronic communication service provider who provides a mobile cellular electronic communication service shall not activate a SIM-card on its electronic communication system unless subsection (2) has been complied with.

Subsection (2) provides- From a date of the commencement of this section an electronic communication provider must, subject to subsection (4) , at own cost implement a process to record and store, and must record and store -

(a) the Mobile Subscriber Integrated Service Digital Network number (MSISDN-number) of the SIM-card that is to be activated by an electronic communication service provider at the request of a person contemplated in paragraphs (b) and (c);

(b) in the case of a person who-

(i ) is a South African citizen or is lawfully and permanently resident in the Republic, the full names and surname , identity number and at least one address of such person who requests that a SIM-card referred to in subsection (1) be activated on the electronic communication system of an electronic communication service provider; or

(ii) is not a South African citizen or who is not permanently resident in the Republic, and who requests that a SIM-card referred to in subsection (1) be activated on the electronic communication system of an electronic communication service provider, the full names and surname, identity number and at least one address of such a person and the country where the passport was issued; or

(c) in the case of a juristic person-

(i) the full names, surname, identity number and an address of the authorised representative of the juristic person, and

(ii) the name and address of the juristic person and where applicable , the registration number of the juristic person.

Subsection (3) goes further to provide -

(a) For the purposes of subsection (2), an electronic communication service provider must, in the manner provided for in paragraph (b) , verify -

(i) the full names and , surname, identity number and identity of the person contemplated in subsection (2)(b) and (c) and , where applicable, the country where the passport was issued;

(ii) the name and , where applicable, the registration number of the juristic person;

(iii) in the case of a person contemplated in subsection (2))(b)(i) and (c), the address; and

(iv) the authority of the representative of a juristic person.

(3)(b) further provides an electronic communication service provider must verify -

(i) the information contemplated in paragraph(a)(i) by means of an identification document;

(ii) the information contemplated in paragraph(a)(ii) by means of documentation, including a registration document, founding statement, document issued by the South African Revenue Service or any other similar document;

(iii) the address contemplated in paragraph (a)(iii) by means of documentation, including a bank statement, a municipal rates and tax invoice, telephone or cellular phone account of not older than three months, or any other utility bill or an account of a retailer of not older than three months or an existing lease , rental or credit sale agreement, insurance policy, a current television licence or a new motor vehicle licence document; and

(iv) the authority of the representative of a juristic person by means of a letter of authority or an affidavit.

Without going through the entire section 40 it is clear that legislature was meticulous in crafting the law in this instance. Subsection(9) goes further to require an electronic communication service provider to , on its electronic communication system, record and store-

(a) every MSISDN-number used with every IMEI-number; and

(b) every IMEI-number used with every MSISDN-number,

Which must, on production of a direction, be provided to an applicant within 12 hours.

Section 41 of RICA demands that loss,theft or destruction of cellular phone or SIM-card must be reported within a reasonable time after having reasonably become aware of the loss,theft or destruction of the cellular phone or SIM-card to a police official at any police station.

Having highlighted the relevant critical provisions of RICA it is therefore surprising for the Minister of Police to make such comments about the possible disappearance of evidence.

The purpose of RICA is to make sure that the person whose records were used to activate a SIM-card in an electronic communication system remains accountable on how the SIM-card is used. Whilst I have come across people talking about pre-RICAd SIM-cards available for different networks it remains the responsibility of the network providers to ensure that there is strict compliance with the law for security and safety of the country. It is aslo not uncommon to hear of cellular phone contracts opened under stolen identity. Where the network providers fail they must face the full might of the law from all angles , including the regulator (ICASA) and law enforcement agencies.

It is therefore not acceptable that a SIM-card can just be used , worse for the commission of crime and the very executive authority of the police dash hopes of culprit being brought to book despite technology having provided means to make tracing wrong doers easy.

The requirements for the recordal and storage of every MSISDN-number used with every IMEI- number and vice versa is meant to enable the tracing through using SIM-card and the actual cellular phone. So what could be so difficult in tracing both?

The last point to make is that it is very important that public awareness be made on the importance of RICA and how it affects individuals and the country in fighting crime .

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