Public Interest SA is calling for the imposition of steep penalties on South African mobile operators, for allegedly failing to comply with the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (RICA).
According to the civil society organisation, damning evidence was presented at the ongoing high-profile murder trial of former Bafana Bafana and Orlando Pirates goalkeeper Senzo Meyiwa, regarding SIM cards that were not properly registered in compliance RICA.
RICA requires the details of all telecommunication users to be registered, and aims to assist law enforcement agencies in tracking criminals using telecoms services for illegal activities.
ITWeb reached out to the mobile operators, which refuted Public Interest SA’s allegations, saying they are taking measures to ensure non-RICA’d SIM cards do not operate or exist on their networks.
In the ongoing Meyiwa murder case, the court heard that some of the SIM cards allegedly used by the suspects had not been RICA’d.
Public Interest SA notes: “This has once again highlighted the concerning disregard mobile network operators have shown towards the laws governing their licensing conditions.
“This flagrant non-compliance further undermines the rule of law and effectiveness of penalties associated with transgressions of the RICA,” says the organisation.
It says it’s deeply concerned and troubled by the widespread use of “non-RICA’d” or improperly RICA’d SIM cards in the commission of heinous crimes, including fraud targeting unsuspecting retailers and members of the public.
Tebogo Khaas, chairperson of Public Interest SA, emphasises the link between unregistered SIM cards and flourishing illicit economies, organised crime, money-laundering, kidnappings, fraud, car hijackings and murder.
He asserts that an environment where unregistered SIM cards are easily accessible contributes to the rise of these criminal activities.
Public Interest SA calls upon the Independent Communication Authority of SA and relevant agencies to rigorously enforce the laws governing the sale and use of mobile SIM cards as mandated by section 40 of RICA.
It highlights the case of MTN Group, which was fined $5.2 billion by the Federal Government of Nigeria through the Nigerian Communications Commission.
“This incident underscores the importance of adherence to telecommunications laws and the repercussions faced by those who fail to comply.
“Responsible investments and ethical conduct by South African telecommunications companies are of paramount importance in fostering a secure and law-abiding society.”
Vodacom spokesperson Byron Kennedy says: “Vodacom strongly refutes the allegations or inferences made by Public Interest SA that we have, once again, disregarded the laws governing our licence conditions.
“It is clear from Public Interest SA’s media release that it has grossly misinterpreted the RICA law, evidenced by referencing ‘non-RICA’d’ SIM cards, as these simply do not exist.”
According to Kennedy, a SIM card that has not gone through the RICA process cannot be activated on a network, so won’t work at all.
“With regard to ‘pre-RICA’d’ SIM cards, we have made our position clear on this in that Vodacom does not sell or distribute ‘pre-RICA’d’ SIMs. The practice of ‘pre-RICA’d’ SIMs is not new and remains highly problematic for the industry. It’s likely this will continue until the law is changed. For instance, the introduction of limits applied to the number of SIMs that can be activated per person.”
Kennedy adds it’s important to note that the use of RICA – in terms of the prescribed registration process – is largely a blunt instrument in preventing crime and/or bringing criminals to justice.
“What we have found from many years of experience in working with relevant authorities, is that knowing when and where a device was used by criminal elements has a vastly higher success rate in prosecuting criminals than having the information about who the SIM is registered to.
“Where RICA is considered to be most effective globally is when it comes to interception. Naturally, we will only provide authorities with this type of information after we are served with the requisite subpoena.”
He points out that as the law stands, “pre-RICA’d” SIMs are not illegal, as the onus is on the acquiring party to register the SIM/s in their possession.
“Not doing so is illegal and breaking the law. According to the current law, it is not incumbent on the person ‘selling’ the card to verify the documents presented by the acquiring party. It is also not a requirement that the ‘seller’ maintains a copy of the documents presented by the acquiring party. Again, to be clear, Vodacom does not sell or distribute ‘pre-RICA’d’ SIMs.”
He points out that RICA compliance is key priority for Vodacom, evidenced by the introduction of a simplified solution to allow existing Vodacom customers to self-RICA SIMs from the comfort of their own homes.
No registration, no activation
Jacqui O’Sullivan, chief sustainability and corporate affairs manager at MTN South Africa, comments that in SA it is illegal to activate a SIM card without having followed the necessary processes to link a SIM card to a specific individual.
“Any person doing so, would be in breach of the RICA Act. In any event, MTN SA, like other mobile operators, does have RICA agency agreements in place with third-party agents. These third-party agents conduct the bulk of RICA registrations on behalf of MTN SA.”
According to O’Sullivan, these agreements dictate the processes to be followed to ensure full compliance with the relevant RICA laws.
In this regard, she says, the agents are contractually and legally bound to ensure proper RICA registrations are done, which requires linking a specific SIM card to a specific individual.
“It is important to note that the SIM card will not be activated on our network if RICA has not successfully been completed. The condition for a SIM card to be active is that both RICA and a dynamic MSISDN allocation process must be successfully completed.”
She adds that to be in possession of an activated SIM card, which is not registered under the correct individual name of the user, is considered identity fraud.
South African law places a responsibility on the purchaser of the SIM card, in terms of Section 40 of the RICA Act, to have the SIM registered in his or her name and failure to do so makes the purchaser liable to a contravention of the provisions of Section 40.
“In fact, anyone purchasing an activated SIM card has an obligation to inform the mobile operators accordingly; failing which that subscriber is in breach of the law. The law does allow for the change in ownership of a SIM card and MTN’s processes as well as other MNOs do cater for that change of ownership process.”
She says MTN enforces strict and ongoing compliance monitoring measures with its distribution channel partners.
“MTN remains committed to upholding the integrity of the SIM registration process and will continue to pursue ongoing initiatives to streamline and improve the process in the interests of all stakeholders,” notes O’Sullivan.
According to Cell C, the telco holds RICA-required information for every active SIM on its network, as well as that of the RICA agent.
“Cell C is continuously looking at new and innovative ideas to further enhance our compliance to RICA, such as validating information supplied against third-party databases and also investigating possibilities of deploying biometric verification within the RICA onboarding process,” the mobile operator tells ITWeb.
“Cell C continuously reviews its procedures and policies to further enhance our compliance to RICA,” it concludes.
Telkom had not responded to ITWeb’s request for comment by the time of publication.