Author: Accessible Law

Section 50 | Informing foreign State of outcome of request for mutual assistance and expedited disclosure of traffic data

  1. The National Director of Public Prosecutions must inform—
    1. the designated judge; and
    2. the applicable authority in a foreign State,
      of the outcome of the request for assistance and cooperation.
  2. Any traffic data made available in terms of an order referred to in section 48(6)(c), must be—
    1. provided to the designated Point of Contact, in the prescribed manner, for submission to the applicable authority in a foreign State; and
    2. accompanied by—
      1. a copy of the order referred to in section 48(6); and
      2. an affidavit in the prescribed form by the person or authorised representative of an electronic communications service provider or financial institution, verifying the authenticity, integrity and reliability of the information that is furnished.
  3. The traffic data together with the copy of the order and affidavit referred to in subsection (2), must be provided to the applicable authority in a foreign State which requested the assistance in terms of section 48(1).
  4. A person, electronic communications service provider or financial institution who—
    1. fails to comply with subsection (2) or any regulations contemplated in section 59(1)(a)(xxii); or
    2. makes a false statement in an affidavit referred to in subsection (2)(b)(ii),
      is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

Section 51 | Issuing of direction requesting assistance from foreign State

  1. If it appears to a magistrate from information on oath or by way of affirmation that there are reasonable grounds for believing that—
    1. an offence contemplated in Part I or Part II of Chapter 2; or
    2. any other offence in terms of the laws of the Republic, which may be committed by means of, or facilitated through the use of, an article,
      has been committed or that it is necessary to determine whether the offence has been so committed and that it is necessary—
      1. pending the issuing of a letter of request in terms of section 2(2) of the International Co-operation in Criminal Matters Act, 1996, to—
        1. preserve data or other articles;
        2. seize data or other articles on an expedited basis;
        3. obtain real-time communication-related information or archived communication-related information; or
        4. intercept indirect communications; or
      2. to obtain traffic data,
        within the area of jurisdiction of a foreign State, the magistrate may issue a direction in the prescribed form in which assistance from that foreign State is sought as is stated in the direction.
  2. A direction contemplated in subsection (1) must specify that—
    1. there are reasonable grounds for believing that an offence contemplated in subsection (1)(a) or (b) has been committed in the Republic or that it is necessary to determine whether such an offence has been committed;
    2. an investigation in respect thereof is being conducted; and
    3. for purposes of the investigation it is necessary, in the interests of justice, that—
      1. data or other articles specified in the direction, be preserved;
      2. data or any other article specified in the direction is to be seized on an expedited basis and be preserved;
      3. traffic data specified in the direction, be disclosed on an expedited basis;
      4. real-time communication-related information or archived communication-related information specified in the direction, be obtained and be preserved; or
      5. indirect communications, specified in the direction, be intercepted and be preserved,
        within the area of jurisdiction of a foreign State.
  3. The direction must be sent to the National Director of Public Prosecutions for transmission to—
    1. the appropriate authority in the foreign State; or
    2. a designated point of contact in the foreign State,
      which is requested to provide assistance and cooperation.

Section 52 | Establishment and functions of designated point of contact

  1. The National Commissioner must—
    1. establish or designate an office within existing structures of the South African Police Service to be known as the designated Point of Contact for the Republic; and
    2. equip, operate and maintain the designated Point of Contact.
  2. The National Commissioner exercises final responsibility over the administration and functioning of the designated Point of Contact.
    1. The designated Point of Contact must ensure the provision of immediate assistance for the purpose of proceedings or investigations regarding the commission or intended commission of—
      1. an offence under Part I or Part II of Chapter 2;
      2. any other offence in terms of the laws of the Republic, which may be committed by means of, or facilitated through the use of, an article; or
      3. an offence—
        1. similar to those contemplated in Part I or Part II of Chapter 2; or
        2. substantially similar to an offence recognised in the Republic, which may be committed by means of, or facilitated through the use of, an article, in a foreign State.
    2. The assistance contemplated in subsection (3)(a), includes—
      1. the provision of technical advice and assistance;
      2. the facilitation or provision of assistance regarding anything which is authorised under Chapters 4 and 5;
      3. the provision of legal assistance;
      4. the identification and location of an article;
      5. the identification and location of a suspect; and
      6. cooperation with appropriate authorities of a foreign State.
  4. The Cabinet member responsible for policing may make regulations to further—
    1. regulate any aspect provided for in subsection (3);
    2. impose additional duties on the designated Point of Contact; and
    3. regulate any aspect which is necessary or expedient for the proper implementation of this section.
  5. The National Director of Public Prosecutions must make available members of the National Prosecuting Authority—
    1. who have particular knowledge and skills in respect of any aspect dealt with in this Act; and
    2. to whom a security clearance has been issued by the State Security Agency in terms of section 2A of the National Strategic Intelligence Act, 1994, to the satisfaction of the National Director of Public Prosecutions,
      to provide legal assistance to the designated Point of Contact as may be necessary or expedient for the effective operation of the designated Point of Contact.
    1. The Cabinet member responsible for policing must, at the end of each financial year, submit a report to the Chairperson of the Joint Standing Committee on Intelligence established by section 2 of the Intelligence Services Oversight Act, 1994, on the functions and activities of the designated Point of Contact.
    2. The report contemplated in paragraph (a) must include—
      1. the number of matters in which assistance was provided in terms of subsection (3)(a); and
      2. the number of matters in which assistance was received from a foreign State.

Section 53 | Proof of certain facts by affidavit

  1. Whenever any fact established by any examination or process requiring any skill in—
    1. the interpretation of data;
    2. the design or functioning of data, a computer program, a computer data storage medium or a computer system;
    3. computer science;
    4. electronic communications networks and technology;
    5. software engineering; or
    6. computer programming,
      is or may become relevant to an issue at criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, 1998, a document purporting to be an affidavit or a solemn or attested declaration made by a person who, in that document, states that they—
        1. fall within a category of persons within the Republic; or
        2. are in the service of a body in the Republic or a foreign State,
          designated by the Cabinet member responsible for the administration of justice, by notice in the Gazette;
      2. possess relevant qualifications, expertise and experience which makes them competent to make the affidavit; and
      3. have established such fact by means of an examination or process that is documented in the document,
        is, upon its mere production at such proceedings, prima facie proof of such fact.
  2. Any person who makes an affidavit or a solemn or attested declaration under subsection (1) and who in such affidavit or solemn or attested declaration wilfully states anything which is false, is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years or to both a fine and such imprisonment.
  3. The court before which an affidavit or solemn or attested declaration is produced as prima facie proof of the relevant contents thereof may, in its discretion, cause the person who made the affidavit or solemn or attested declaration to be subpoenaed to give oral evidence in the proceedings in question or may cause written interrogatories to be submitted to such person for reply and such interrogatories and any reply thereto purporting to be a reply from such person are likewise admissible in evidence at such proceedings.
  4. No provision of this section affects any other law under which any certificate or other document is admissible in evidence and the provisions of this section are deemed to be additional to and not in substitution of any such law.
    1. For the purposes of subsection (1), a document purporting to be an affidavit or a solemn or attested declaration made by a person who in that affidavit alleges that they are in the service of a body in the Republic or a foreign State designated by the Cabinet member responsible for the administration of justice, by notice in the Gazette, has no effect unless it is—
      1. obtained in terms of an order of a competent court or on the authority of a government institution of the foreign State concerned, as the case may be; and
      2. authenticated—
        1. in the manner prescribed in the rules of court for the authentication of documents executed outside the Republic; or
        2. by a person and in the manner contemplated in section 7 or 8 of the Justices of the Peace and Commissioners of Oaths Act, 1963.
    2. The admissibility and evidentiary value of an affidavit contemplated in paragraph (a) are not affected by the fact that the form of the oath, confirmation or attestation thereof differs from the form of the oath, confirmation or attestation prescribed in the Republic.
    3. A court before which an affidavit or a solemn or attested declaration contemplated in paragraph (a) is placed may, in order to clarify any obscurities in the said affidavit, order that a supplementary affidavit or a solemn or attested declaration be submitted or that oral evidence be heard: Provided that oral evidence may only be heard if the court is of the opinion that it is in the interests of the administration of justice and that a party to the proceedings would be prejudiced materially if oral evidence is not heard.

Section 54 | Obligations of electronic communications service providers and financial institutions

  1. An electronic communications service provider or financial institution that is aware or becomes aware that its electronic communications service or electronic communications network is involved in the commission of any category or class of offences provided for in Part I of Chapter 2 and which is determined in terms of subsection (2), must—
    1. without undue delay and, where feasible, not later than 72 hours after having become aware of the offence, report the offence in the prescribed form and manner to the South African Police Service; and
    2. preserve any information which may be of assistance to the South African Police Service in investigating the offence.
  2. The Cabinet member responsible for policing, in consultation with the Cabinet member responsible for the administration of justice, must by notice in the Gazette, prescribe—
    1. the category or class of offences which must be reported to the South African Police Service in terms of subsection (1); and
    2. the form and manner in which an electronic communications service provider or financial institution must report offences to the South African Police Service.
  3. An electronic communications service provider or financial institution that fails to comply with subsection (1), is guilty of an offence and is liable on conviction to a fine not exceeding R50 000.
  4. Subject to any other law or obligation, the provisions of subsection (1) must not be interpreted as to impose obligations on an electronic service provider or financial institution to—
    1. monitor the data which the electronic communications service provider or financial institution transmits or stores; or
    2. actively seek facts or circumstances indicating any unlawful activity.
  5. This section does not apply to a financial sector regulator or a function performed by the South African Reserve Bank in terms of section 10 of the South African Reserve Bank Act, 1989.

[Commencement date of section 54: To be proclaimed]

Section 55 | Capacity detect, prevent and investigate cybercrimes

  1. The Cabinet member responsible for policing must—
    1. establish and maintain sufficient human and operational capacity to detect, prevent and investigate cybercrimes;
    2. ensure that members of the South African Police Service receive basic training in aspects relating to the detection, prevention and investigation of cybercrimes; and
    3. in co-operation with any institution of higher learning, in the Republic or elsewhere, develop and implement accredited training programmes for members of the South African Police Service primarily involved with the detection, prevention and investigation of cybercrimes.
  2. The Cabinet member responsible for policing may make regulations to further regulate any aspect referred to in subsection (1).
  3. The Cabinet member responsible for policing must, at the end of each financial year, submit a report to Parliament regarding—
    1. progress made with the implementation of this section;
    2. the number of—
      1. offences provided for in Part I or Part II of Chapter 2, which were reported to the South African Police Service;
      2. cases which were, in terms of subparagraph (i), reported to the South African Police Service which resulted in criminal prosecutions; and
      3. cases where no criminal prosecutions were instituted after a period of 18 months after a case was, in terms of subparagraph (i), reported to the South African Police Service; and
    3. the number of members of the South African Police Service who received training as contemplated in subsection (1)(b) and (c).

Section 56 | National Director of Public Prosecutions must keep Statistics of Prosecutions

  1. The National Director of Public Prosecutions must keep statistics of the number of prosecutions instituted for offences in terms of Part I or Part II of Chapter 2, the outcome of such prosecutions and any other information relating to such prosecutions, which is determined by the Cabinet member responsible for the
    administration of justice.
  2. The statistics or information contemplated in subsection (1) must be included in the report of the National Director of Public Prosecutions referred to in section 22(4)(g) of the National Prosecuting Authority Act, 1998.

Section 57 National Executive may enter into agreements

  1. The National Executive may enter into any agreement with any foreign State regarding—

a) the provision of mutual assistance and cooperation relating to the investigation and prosecution of—

i) an offence under Part I or Part II of Chapter 2;

ii) any other offence in terms of the laws of the Republic, which may be committed by means of, or facilitated through the use of, an article; or

iii) an offence—

aa) similar to those contemplated in Part I or Part II of Chapter 2;

bb) substantially similar to an offence recognised in the Republic, which may be committed by means of, or facilitated through the use of, an article,
in that foreign State;

b) the implementation of cybercrime response activities;

c) training, research, information and technology-sharing and the exchange of information on the detection, prevention, mitigation and investigation of cybercrimes;

d) the establishment or designation of points of contact to facilitate the provision of mutual assistance and cooperation as contemplated in paragraph (a);

e) the implementation of emergency cross-border response mechanisms to mitigate the effect of cybercrimes; and

f) the reciprocal implementation of measures to curb cybercrime.

(2) A member of the National Executive must, as soon as practicable after Parliament has agreed to the ratification of, accession to, amendment of, or revocation of, an agreement referred to in subsection (1), give notice thereof in the Gazette.

Section 59 | Regulations

  1. The Cabinet member responsible for the administration of justice—
    1. must make regulations to prescribe the—
      1. form and manner of the application as contemplated in section 20(1);
      2. form of the order as contemplated in section 20(3);
      3. manner of serving the order as contemplated in section 20(4);
      4. form and manner of the application as contemplated in section 20(6);
      5. form and manner in which the court may subpoena a person as contemplated in section 20(8);
      6. form of the direction and affidavit and manner to furnish information to a court as contemplated in section 21(1)(b);
      7. manner of serving a direction as contemplated in section 21(2);
      8. manner and the form of the affidavit to apply for an extension of the time period or cancellation of the direction as contemplated in section 21(3)(b);
      9. manner for requesting additional information as contemplated in section 21(4)(b);
      10. form and manner of informing an electronic communications service provider of the outcome of application as contemplated in section 21(4)(d);
      11. tariffs of compensation payable to an electronic communications service provider as contemplated in section 21(6);
      12. form of the order and manner of service of the order as contemplated in section 22(3);
      13. form and manner of the application as contemplated in section 22(5);
      14. form and manner in which the court may subpoena a person as contemplated in section 22(7);
      15. the form of the expedited preservation of data direction and manner of service as contemplated in section 41(3);
      16. form and manner for the making of an application as contemplated in section 41(7);
      17. form of the preservation of evidence direction and manner of service as contemplated in section 42(2);
      18. form and manner of an application to set aside a preservation of evidence direction as contemplated in section 42(5);
      19. form of the disclosure of data direction and manner of service as contemplated in section 44(3);
      20. form and manner of an application for the amendment or setting aside of a disclosure of data direction as contemplated in section 44(5);
      21. form of the affidavit as contemplated in section 44(7)(b);
      22. manner in which traffic data must be provided to the designated Point of Contact as contemplated in section 50(2);
      23. form of the affidavit as contemplated in section 50(2)(b)(ii); and
      24. form of the direction as contemplated in section 51(1); and
    2. may make regulations which are not inconsistent with this Act or any other law to prescribe any matter which in terms of this Act may be prescribed or which may be necessary or expedient to prescribe in order to achieve or promote the objects of this Act.
    1. The Cabinet member responsible for policing must make regulations in terms of section 54(2), prescribing the—
      1. category or class of offences which must be reported to the South African Police Service in terms of section 54(2)(a); and
      2. form and manner in which an electronic communications service provider or financial institution must report offences to the South African Police Service as contemplated in section 54(2)(b).
    2. The Cabinet member responsible for policing may make regulations to further regulate aspects contemplated in section 52(4) and 55(2).