Accessible Law, Author at Cybercrimes Act

Section 10 | Cyber extortion

Any person who unlawfully and intentionally commits or threatens to commit any offence contemplated in section 3(1), 5(1), 6(1) or 7(1)(a) or (d), for the purpose of—
1. obtaining any advantage from another person; or
2. compelling another person to perform or to abstain from performing any act,
  is guilty of the offence of cyber extortion.

Section 11 | Aggravated offences

(a) Any person who commits an offence referred to in—
1. section 3(1), 5(1) or 6(1), in respect of; or
2. section 7(1), in so far as the passwords, access codes or similar data and devices relate to,
  a restricted computer system, and who knows or ought reasonably to have known or suspected that it is a restricted computer system, is guilty of an aggravated offence.
3. (b) For purposes of paragraph (a) ‘‘a restricted computer system’’ means any data, computer program, computer data storage medium or computer system
  1. (i) under the control of, or exclusively used by—
    1. a financial institution; or
    2. an organ of state as set out in section 239 of the Constitution, including a court; and
  2. (ii) which is protected by security measures against unauthorised access or use.
Any person who commits an offence referred to in section 5(1), 6(1) or 10, and who knows or ought reasonably to have known or suspected that the offence in question will—
1. endanger the life or cause serious bodily injury to, or the death of, any person, or any number or group of persons;
2. cause serious risk to the health or safety of the public or any segment of the public;
3. create a serious public emergency situation,
  is guilty of an aggravated offence.
The Director of Public Prosecutions having jurisdiction must authorise in writing a prosecution in terms of subsection (1) or (2).

Section 12 | Theft of incorporeal property

The common law offence of theft must be interpreted so as not to exclude the theft of incorporeal property.

Section 13 | Definitions

In Part II, unless the context indicates otherwise—
1. ‘‘damage to property‘‘ means damage to any corporeal or incorporeal property;
2. ‘‘disclose’’ in respect of a data message referred to in sections 14, 15 and 16, means to—
  1. send the data message to a person who is the intended recipient of the electronic communication or any other person;
  2. store the data message on an electronic communications network, where the data message can be viewed, copied or downloaded; or
  3. send or otherwise make available to a person, a link to the data message that has been stored on an electronic communication network, where the data message can be viewed, copied or downloaded;

‘‘group of persons’’ means characteristics that identify an individual as a member of a group, which characteristics include without limitation, race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth or nationality;
‘‘related person’’ means any member of the family or household of a person or any other person in a close relationship with that person; and
‘‘violence‘‘ means bodily harm.

Section 14 | Data message which incites damage to property or violence

Any person who discloses, by means of an electronic communications service, a
data message to a person, group of persons or the general public with the intention to incite—

the causing of any damage to property belonging to; or
violence against a person or a group of persons,
is guilty of an offence.

Section 15 | Data message which threatens persons with damage to property or violence

A person commits an offence if they, by means of an electronic communications service, unlawfully and intentionally discloses a data message, which—
1. threatens a person with—
  1. damage to property belonging to that person or a related person; or
  2. violence against that person or a related person; or
2. threatens a group of persons or any person forming part of, or associated with, that group of persons with—
  1. damage to property belonging to that group of persons or any person forming part of, or associated with, that group of persons; or
  2. violence against the group of persons or any person forming part of, or associated with, that group of persons,
    and a reasonable person in possession of the same information, with due regard to all the circumstances, would perceive the data message, either by itself or in conjunction with any other data message or information, as a threat of damage to property or violence to a person or category of persons contemplated in paragraph (a) or (b), respectively.

Section 16 | Disclosure of data message of intimate image

Any person (‘‘A’’) who unlawfully and intentionally discloses, by means of an electronic communications service, a data message of an intimate image of a person (‘‘B’’), without the consent of B, is guilty of an offence.
For purposes of subsection (1)—
1. ‘‘B’’ means—
  1. the person who can be identified as being displayed in the data message;
  2. any person who is described as being displayed in the data message, irrespective of the fact that he or she cannot be identified as being displayed in the data message; or
  3. any person who can be identified from other information as being displayed in the data message; and
2. ‘‘intimate image’’ means a depiction of a person—
  1. real or simulated and made by any means in which—
    1. B is nude, or his or her genital organs or anal region of B is displayed, or if B is a female person, transgender person or intersex person, their breasts, are displayed; or
    2. the covered genital or anal region of B, or if B is a female person, transgender person or intersex person, their covered breasts, are displayed; and
  2. in respect of which B so displayed retains a reasonable expectation of privacy at the time that the data message was made in a manner that—
    1. violates or offends the sexual integrity or dignity of B; or
    2. amounts to sexual exploitation.

Section 17 | Attempting, conspiring, aiding, abetting, inducing, inciting, instigating, instructing, commanding or procuring to commit offence

Any person who unlawfully and intentionally—

attempts;
conspires with any other person; or
aids, abets, induces, incites, instigates, instructs, commands or procures another person,
to commit an offence in terms of Part I or Part II of this Chapter, is guilty of an offence and is liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.

Section 18 | Competent verdicts

If the evidence in criminal proceedings does not prove the commission of the offence charged but proves a contravention of section 17—
1. in respect of the offence charged; or
2. in respect of any other offence of which an accused may be convicted on the offence charged,
  the accused may be found guilty of the offence so proved.
If the evidence on a charge of a contravention of section 3(1), does not prove the offence or a contravention of section 17 in respect of that offence, but proves a contravention of—
1. section 2(1) or (2);
2. section 3(2) or (3); or
3. section 4(1), in so far as it relates to the use or possession of a software or hardware tool for purposes of contravening section 3(1),
  the accused may be found guilty of the offence so proved.
If the evidence on a charge of a contravention of section 5(1), does not prove the offence or a contravention of section 17 in respect of that offence, but proves—
1. a contravention of section 2(1) or (2);
2. a contravention of section 4(1) in so far as it relates to the use or possession of a software or hardware tool for purposes of contravening section 5(1); or
3. the offence of malicious injury to property,
  the accused may be found guilty of the offence so proved.
If the evidence on a charge of a contravention of section 6(1), does not prove the offence or a contravention of section 17 in respect of that offence, but proves—
1. a contravention of section 2(1) or (2);
2. a contravention of section 4(1) in so far as it relates to the use or possession of a software or hardware tool, for purposes of contravening section 6(1); or
3. the offence of malicious injury to property,
  the accused may be found guilty of the offence so proved.
1. If the evidence on a charge of a contravention of section 7(1)(a) or (d) does not prove the offence or a contravention of section 17 in respect of that offence, but proves a contravention of—
  1. section 2(1) or (2);
  2. section 7(1)(b) or (c) or (2); or
  3. section 4(1), in so far as it relates to the use or possession of a software or hardware tool to acquire or use a password, access code or similar data or device,
    the accused may be found guilty of the offence so proved
2. If the evidence on a charge of a contravention of section 7(1)(b) or (c) does not prove the offence or a contravention of section 17 in respect of that offence, but proves a contravention of section 7(2), the accused may be found guilty of an offence so proved.
If the evidence on a charge of a contravention of section 8, does not prove the offence or a contravention of section 17 in respect of the offence, but proves—
1. a contravention of section 2(1) or (2);
2. a contravention of section 4(1), in so far as it relates to the use or possession of a software or hardware tool for the purposes of—
  1. interfering with data or a computer program as contemplated in section 5(1); or
  2. interfering with a computer data storage medium or a computer system as contemplated in section 6(1);
3. a contravention of section 7(1) or (2), in so far as the password, access code or similar data or device was acquired, possessed, provided to another person or used for purposes of contravening the provisions of section 8;
4. a contravention of section 9(1) or (2);
5. the common law offence of fraud or attempt to commit that offence;
6. the common law offence of forgery or uttering or attempt to commit that offence; or
7. the common law offence of theft or attempt to commit that offence, the accused may be found guilty of the offence so proved.
1. If the evidence on a charge of a contravention of section 9(1), does not prove the offence or a contravention of section 17 in respect of the offence, but proves—
  1. the common law offence of forgery;
  2. a contravention of section 9(2); or
  3. the common law offence of uttering,
    the accused may be found guilty of the offence so proved.
2. If the evidence on a charge of a contravention of section 9(2), does not prove the offence, but proves the common law offence of uttering, the accused may be found guilty of the offence so proved.
If an accused is charged with a contravention of section 11(1), and the evidence on the charge does not prove a contravention of section 11(1) or a contravention of section 17 in respect of that offence, but a proves a contravention of—
1. section 2(1) or (2);
2. section 3(1) or any competent verdict provided for in subsection (2);
3. section 5(1) or any competent verdict provided for in subsection (3);
4. section 6(1) or any competent verdict provided for in subsection (4); or
5. section 7(1) or any competent verdict provided for in subsection (5),
  the accused may be found guilty of the offence so proved.
If an accused is charged with a contravention of section 11(2) or a contravention of section 17 in respect of that offence, and the evidence on the charge does not prove a contravention of section 11(2), but a proves a contravention of—
1. section 2(1) or (2);
2. section 5(1) or any competent verdict provided for in subsection (3); or
3. section 6(1) or any competent verdict provided for in subsection (4),
  the accused may be found guilty of the offence so proved.
If the evidence on a charge for any offence referred to in the preceding subsections does not prove the commission of the offence so charged or any competent verdict in respect of the offence but proves the commission of an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.
If an accused is charged with a contravention of section 14, 15 or 16, and the evidence on the charge does not prove the offence in question or a contravention of section 17 in respect of the offence, but proves the commission of an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.

Section 19 | Sentencing

Any person who contravenes the provisions of section 2(1)or (2), 3(3) or 7(2) is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.
Any person who contravenes the provisions of section 3(1) or (2), 4(1), 5(1), 6(1) or 7(1) is liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both a fine and such imprisonment.
Any person who contravenes the provisions of section 11(1) is liable on conviction to a fine or to imprisonment for a period not exceeding 15 years or to both a fine and such imprisonment.
A court which convicts a person of an offence in terms of section 8, 9(1) or (2), 10 or 11(2) may, where a penalty is not prescribed in respect of that offence by any other law, impose a sentence, as provided for in section 276 of the Criminal Procedure Act, 1977, which that court considers appropriate and which is within that court’s penal jurisdiction.
A court which imposes any sentence in terms of this section, or where a person is convicted of the offence of theft that was committed or facilitated by electronic means, must, without excluding other relevant factors, consider as aggravating factors—
1. the fact that the offence was committed by electronic means;
2. the extent of the prejudice and loss suffered by the complainant or any other person as a result of the commission of such an offence;
3. the extent to which the person gained financially, or received any favour, benefit, reward, compensation or any other advantage from the commission of the offence; or
4. the fact that the offence was committed in concert with one or more persons.
1. If a person is convicted of any offence provided for in section 2(1) or (2), 3(1), 5(1), 6(1), 7(1), 8, 9(1) or (2), 10 or 11(1) or (2), a court imposing any sentence in terms of those sections must, unless substantial and compelling circumstances justify the imposition of another sentence, impose a period of direct imprisonment, with or without a fine, if the offence was committed —
  1. by the person; or
  2. with the collusion or assistance of another person,
    who as part of their duties, functions or lawful authority were in charge of, in control of, or had access to data, a computer program, a computer data storage medium or a computer system belonging to another person in respect of which the offence in question was committed.
  3. A sentence imposed in terms of paragraph (a) may not be suspended as contemplated in section 297(4) of the Criminal Procedure Act, 1977.
Any person who contravenes the provisions of section 14, 15 or 16 is liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both a fine and such imprisonment.