Category: Cybercrimes Act

Section 20 | Order to protect complainant pending finalisation of criminal proceedings

  1. A complainant (hereinafter referred to as the applicant) who lays a charge with the South African Police Service that an offence contemplated in section 14, 15 or 16 has allegedly been committed against them, may on an ex parte basis in the prescribed form and manner, apply to a magistrate’s court for an order pending the finalisation of the criminal proceedings to—
    1. prohibit any person to disclose or further disclose the data message which relates to the charge; or
    2. order an electronic communications service provider whose electronic communications service is used to host or disclose the data message which relates to the charge, to remove or disable access to the data message.
  2. The court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (1) and may, for that purpose, consider any additional evidence it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of proceedings.
  3. If the court is satisfied that there—
    1. is prima facie evidence that an offence referred to in section 14, 15 or 16, has allegedly been committed against the applicant; and
    2. are reasonable grounds to believe that a person referred to in subsection (1)(a) disclosed the data message in question; or
    3. are reasonable grounds to believe that the electronic communications service of the electronic communications service provider referred to in subsection (1)(b), is used to host or was or is used to disclose the data message in question,
      the court may, subject to such conditions as the court may deem fit, issue the order referred to in subsection (1), in the prescribed form.
  4. The order, referred to in subsection (3), must be served on the person referred to in subsection (1)(a) or electronic communications service provider or person referred to in subsection (1)(b) in the prescribed form and manner: Provided, that if the court is satisfied that the order cannot be served in the prescribed form and manner, the court may make an order allowing service to be effected in the manner specified in that order.
  5. An order referred to in subsection (3) is of force and effect from the time it is issued by the court and the existence thereof has been brought to the attention of the person referred to in subsection 1(a) or electronic communications service provider referred to in subsection 1(b).
  6. A person referred to in subsection (1)(a), other than the person who is accused of having committed the offence in question, or electronic communications service provider referred to in subsection (1)(b) may, within 14 days after the order has been served on them in terms of subsection (4), or within such further period as the court may allow, upon notice to the magistrate’s court concerned, in the prescribed form and manner, apply to the court for the setting aside or amendment of the order referred to in subsection (3).
    1. The court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (6) and may, for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings.
    2. The court may, if good cause is shown for the variation or setting aside of the protection order, issue an order to this effect.
  8. The court may, for purposes of subsections (2) and (7), in the prescribed form and manner cause to be subpoenaed any person as a witness at those proceedings or to provide any book, document or object, if the evidence of that person or book, document or object appears to the court essential to the just decision of the case.
  9. Any person referred to in subsection (1)(a) or an electronic communications service provider, referred to in subsection (1)(b), that fails to comply with an order referred to in subsection (3) is guilty of an offence.
  10. Any person who is subpoenaed in terms of subsection (8) to attend proceedings and who fails to—
    1. attend or to remain in attendance;
    2. appear at the place and on the date and at the time to which the proceedings in question may be adjourned;
    3. remain in attendance at those proceedings as so adjourned; or
    4. produce any book, document or object specified in the subpoena,
      is guilty of an offence.
  11. The provisions in respect of appeal and review as provided for in the Magistrates’ Courts Act, 1944, and the Superior Courts Act, 2013, apply to proceedings in terms of this section.
  12. For purpose of this section and sections 21 and 22 ‘‘to host a data message’’ means to store the data message on an electronic communications network that is used to provide an electronic communications service, where it can be viewed, copied or downloaded.

Section 21 | Electronic communications service provider to furnish particulars to court

  1. If an application for a protection order is made in terms of section 20(1) and the court is satisfied in terms of section 20(3) that a protection order must be issued and the particulars of the person referred to in section 20(1)(a), who discloses the data message, or the electronic communications service provider referred to in section 20(1)(b), whose service is used to host or was or is used to disclose the data message, is not known, the court may—
    1. adjourn the proceedings to any time and date on the terms and conditions which the court deems appropriate; and
    2. issue a direction in the prescribed form, directing an electronic communications service provider, that is believed to be able to furnish such particulars, to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with—
      1. the electronic communications identity number from where the data message originated;
      2. the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned;
        1. the electronic communications identity number from where the data message originated;
        2. the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned;
        3. any information which indicates that the data message was or was not sent from the electronic communications identity number of the person to the electronic communications identity number of the applicant;
        4. any information that is available to an electronic communications service provider that may be of assistance to the court to identify the person referred to in section 20(1)(a) or the electronic communications service provider referred to in section 20(1)(b), which provides a service to that person;
        5. any information that is available to an electronic communications service provider which—
          1. confirms whether or not its electronic communications service is used to host or was or is used to disclose the data message in question; or
          2. may be of assistance to the court to identify the electronic communications service provider whose service is used to host or was or is used to disclose the data message in questions; or
        6. an assessment whether or not the electronic communications service provider is in a position to—
          1. remove the data message or a link to such data message; or
          2. disable access to the data message or a link to such data message.
  2. If the court issues a direction in terms of subsection (1)(b) the court must direct that the direction be served on the electronic communications service provider in the prescribed manner: Provided, that if the court is satisfied that the direction cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form or manner specified in that order.
    1. The information referred to in subsection (1)(b) must be provided to the court within five ordinary court days from the time that the direction is served on an electronic communications service provider.
    2. An electronic communications service provider on which a direction is served, may in the prescribed manner by means of an affidavit in the prescribed form apply to the court for—
      1. an extension of the period of five ordinary court days referred to in paragraph (a) for a further period of five ordinary court days on the grounds that the information cannot be provided timeously; or
      2. the requested information is not available in the records of the electronic communications service provider; or
      3. its service is not used to host or was or is not used to disclose the data message in question.
  4. After receipt of an application in terms of subsection (3)(b), the court—
    1. must consider the application;
    2. may, in the prescribed manner, request such additional evidence by way of affidavit from the electronic communications service provider as it deems fit;
    3. must give a decision in respect thereof; and
    4. must inform the electronic communications service provider in the prescribed form and manner of the outcome of the application.
    1. The court may, on receipt of an affidavit from an electronic communications service provider which contains the information referred to in subsection (1)(b), consider the issuing of a protection order in terms of section 20(3) against the person or electronic communications service provider on the date to which the proceedings have been adjourned.
    2. Any information furnished to the court in terms of subsection (1)(b) forms part of the evidence that a court may consider in terms of section 20(3).
  6. The Cabinet member responsible for the administration of justice may, by notice in the Gazette, prescribe reasonable tariffs of compensation payable to electronic communications service providers for providing the information referred to in subsection (1)(b).
  7. Any electronic communications service provider or employee of an electronic communications service provider who—
    1. fails to furnish the required information within five ordinary court days from the time that the direction is served on such electronic communications service provider to a court in terms of subsection (3)(a) or such extended period allowed by the court in terms of subsection (3)(b); or
    2. makes a false statement in an affidavit referred to in subsection (1)(b) or (3)(b) in a material respect,
      is guilty of an offence.
  8. For purposes of this section ‘‘electronic communications identity number’’ means a technical identification label which represents the origin or destination of electronic communications traffic.

Section 22 | Orders on finalisation of criminal proceedings

  1. Whenever a person is—
    1. convicted of an offence in terms of section 14, 15 or 16; or
    2. acquitted of an offence in terms of section 14, 15 or 16,
      but evidence proves that the person engaged in, or attempted to engage in, harassment as contemplated in the Protection from Harassment Act, 2011, the trial court may, after holding an enquiry, issue a protection order contemplated in section 9(4) of the Protection from Harassment Act, 2011, against the person, whereafter the provisions of that Act must apply with the necessary changes required by the context.
  2. The trial court which convicts a person of an offence contemplated in section 14, 15 or 16, must order—
    1. that person to refrain from further making available, disclosing or distributing the data message contemplated in section 14, 15 or 16, which relates to the charge on which that person is convicted
    2. that person or any other person to destroy the data message in question, any copy of the data message or any output of the data message and to submit an affidavit in the prescribed form to the prosecutor identified in the order that the data message has been so destroyed; or
    3. an electronic communications service provider to remove or disable access to the data message in question.
  3. The order referred to in subsection (2)(b), in so far as it relates to a person other than the person who has been convicted of the offence, and subsection (2)(c), must be in the prescribed form and must be served on the person or electronic communications service provider in the prescribed manner: Provided, that if the trial court is satisfied that the order cannot be served in the prescribed form and manner, the court may make an order allowing service to be effected in the form or manner specified in that order.
  4. Any person contemplated in subsection (2)(a) or (b) or electronic communications service provider contemplated in subsection (2)(c), that fails to comply with an order referred to in subsection (2) is guilty of an offence.
  5. An electronic communications service provider that is ordered to remove or disable access to the data message may, within 14 days after the order has been served on it in terms of subsection (3), upon notice to the trial court concerned, in the prescribed form and manner, apply to the court for the setting aside or amendment of the order referred to in subsection (2)(c).
    1. The trial court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (5) and may for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings.
    2. The trial court may, if good cause has been shown for the variation or setting aside of the order, issue an order to this effect.
  7. The court may, for purposes of subsection (6)(a), in the prescribed form and manner cause to be subpoenaed any person as a witness at those proceedings or to provide any book, document or object, if the evidence of that person or book, document or object appears to the court essential to the just decision of the case.
  8. Any person who is subpoenaed in terms of subsection (7) to attend proceedings and who fails to—
    1. attend or to remain in attendance;
    2. appear at the place and on the date and at the time to which the proceedings in question may be adjourned;
    3. remain in attendance at those proceedings as so adjourned; or
    4. produce any book, document or object specified in the subpoena,
      is guilty of an offence.
  9. For purposes of this section ‘‘trial court’’ means—
    1. a magi strate’s court established under section 2(1)(f)(i) of the Magistrates’ Courts Act, 1944;
    2. a court for a regional division established under section 2(1)(g)(i) of the Magistrates’ Courts Act, 1944; or
    3. a High Court referred to in section 6(1) of the Superior Courts Act, 2013.
  10. Whenever a person is convicted of an offence in terms of section 14, 15 or 16, the trial court must issue an order that the person must reimburse all expenses reasonably incurred by—
    1. a complainant as a result of any direction issued in terms of section 21(1)(b); or
    2. an electronic communications service provider to remove or disable access to the data message in question,
      whereupon the provisions of section 300 of the Criminal Procedure Act, 1977, shall apply with the necessary changes required by the context, to such order.

Section 24 | Jurisdiction

  1. A court in the Republic has jurisdiction to try any offence referred to in Part I or Part II of Chapter 2, if—
    1. the accused was arrested in the territory of the Republic, on board a vessel, a ship, an off-shore installation or fixed platform, or an aircraft registered or required to be registered in the Republic;
    2. the person to be charged is—
      1. a citizen of the Republic or ordinary resident in the Republic;
      2. a company, incorporated or registered as such under any law, in the Republic; or
      3. any body of persons, corporate or unincorporated, in the Republic;
    3. the time the offence was committed—
      1. in the territory of the Republic; or
      2. on board a vessel, a ship, an off-shore installation, or a fixed platform, or an aircraft registered or required to be registered in the Republic at the time that the offence was committed;
    4. any act in preparation of the offence or any action necessary to commit the offence or any part of the offence took place—
      1. in the territory of the Republic; or
      2. on board a vessel, a ship, an off-shore installation or fixed platform, or an aircraft registered or required to be registered in the Republic at the time when the act, action or part of the offence took place;
    5. the offence affects any person, a restricted computer system contemplated in section 11(1)(b), a public body or any business, in the Republic;
    6. the offence was committed outside of the Republic against—
      1. any person who is a citizen of the Republic or ordinarily resident in the Republic;
      2. a restricted computer system contemplated in section 11(1)(b);
      3. a company, incorporated or registered as such under any law, in the Republic;
      4. any body of persons, corporate or unincorporated, in the Republic; or
      5. a government facility of the Republic, including an embassy or other diplomatic or consular premises, or any other property of the Republic; or
    7. the evidence reveals any other basis recognised by law in terms of which the court may assert jurisdiction to try the offence.
  2. Any act alleged to constitute an offence referred to in Part I or Part II of Chapter 2 and which is committed outside the Republic by a person other than a person contemplated in subsection (1), must, regardless of whether or not the act constitutes an offence at the place of its commission, be deemed to have been committed in the Republic if—
    1. that person is extradited to the Republic; or
    2. that person—
      1. is found to be in the Republic; and
      2. is for one or other reason not extradited by the Republic or if there is no application to extradite the person.
  3. Where a person is charged with attempting, conspiring, aiding, abetting, inducing, inciting, instigating, instructing, commanding or procuring to commit an offence or as an accessory after the offence, the offence is deemed to have been committed not only at the place where the act was committed, but also at every place where the person so acted.
    1. A prosecution of an offence referred to in Part I or Part II of Chapter 2, which was committed outside the Republic—
      1. may only be instituted against a person with the written permission of the National Director of Public Prosecutions; and
      2. must commence before a court designated by the National Director of Public Prosecutions.
    2. The accused must be served with a copy of the written permission and designation and the original thereof must be handed in at the court in which the proceedings are to commence.
  5. The National Commissioner and the National Head of the Directorate, in consultation with the National Director of Public Prosecutions, must issue directives, with which all police officials must comply in the execution of their functions in terms of this Act, regarding the investigation of offences that were committed outside the Republic.

Section 25 | Definitions

In this Chapter, unless the context indicates otherwise—
‘‘access’’ includes without limitation to make use of—
(a) a computer data storage medium, or a computer system, or their accessories
and components or any part thereof or any ancillary device or component
thereto; and
(b) data or a computer program held in a computer data storage medium or a
computer system,
to the extent necessary to search for and seize an article;
‘‘investigator’’ means any fit and proper person, who is not a member of the South
African Police Service and who is—
(a) identified and authorised in terms of a search warrant as contemplated in
section 29(3); or
(b) requested by a police official in terms of section 31(2), 32(3) or 33(4),
to, subject to the direction and control of a police official, assist the police official with the search for, access or seizure of an article; and
‘‘seize’’ includes to—

(a) remove a computer data storage medium or any part of a computer system;
(b) render inaccessible, data, a computer program, a computer data storage
medium or any part of a computer system in order to preserve evidence;
(c) make and retain a copy of data or a computer program; or
(d) make and retain a printout of the output of data or a computer program.

Section 26 | Standard Operating Procedures

  1. The Cabinet member responsible for policing, in consultation with the National Commissioner, the National Head of the Directorate, the National Director of Public Prosecutions and the Cabinet member responsible for the administration of justice must, after following a process of public consultation, within 12 months of the commencement of this Chapter, issue Standard Operating Procedures which must be observed by—
    1. the South African Police Service; or
    2. any other person or agency who or which is authorised in terms of the provision of any other law to investigate any offence in terms of any law,
      in the investigation of any offence or suspected offence in terms of Part I or Part II of Chapter 2 or any other offence or suspected offence which may be committed by means of, or facilitated through the use of, an article.
  2. The Standard Operating Procedures referred to in subsection (1) and any amendment thereto must be published in the Gazette.

Section 29 | Article to be searched for, accessed or seized under search warrant

  1. Subject to the provisions of sections 31, 32, 33 and 40(1) and (2) of this Act, section 4(3) of the Customs and Excise Act, 1964, sections 69(2)(b) and 71 of the Tax Administration Act, 2011, and section 21(e) and (f) of the Customs Control Act, 2014, an article can only be searched for, accessed or seized by virtue of a search warrant issued—
    1. by a magistrate or judge of the High Court, on written application by a police official, if it appears to the magistrate or judge, from information on oath or by way of affirmation, as set out in the application, that there are reasonable grounds for believing that an article—
      1. is within his or her area of jurisdiction; or
      2. is being used or is involved or has been used or was involved in the commission of an offence—
        1. within his or her area of jurisdiction; or
        2. within the Republic, if it is unsure within which area of jurisdiction the article is being used or is involved or has been used or was involved in the commission of an offence; or
    2. by a magistrate or judge of the High Court presiding at criminal proceedings, if it appears to such magistrate or judge that an article is required in evidence at such proceedings.
  2. A search warrant issued under subsection (1) must require a police official identified in the warrant to search for, access or seize the article in question and, to that end, must authorise the police official to—
    1. search any person identified in the warrant;
    2. enter and search any container, premises, vehicle, facility, ship or aircraft identified in the warrant;
    3. search any person who is believed, on reasonable grounds, to be able to furnish any information of material importance concerning the matter under investigation and who is found near such container, on or at such premises, vehicle, facility, ship or aircraft;
    4. search any person who is believed, on reasonable grounds, to be able to furnish any information of material importance concerning the matter under investigation and who—
      1. is nearby;
      2. uses; or
      3. is in possession or in direct control of,
        any data, computer program, computer data storage medium or computer system identified in the warrant to the extent set out in the warrant;
    5. search for any article identified in the warrant to the extent set out in the warrant;
    6. access an article identified in the warrant to the extent set out in the warrant;
    7. seize an article identified in the warrant to the extent set out in the warrant; or
    8. use or obtain and use any instrument, device, equipment, password, decryption key, data, computer program, computer data storage medium or computer system or other information that is believed, on reasonable grounds, to be necessary to search for, access or seize an article identified in the warrant to the extent set out in the warrant.
  3. A search warrant issued under subsection (1) may require an investigator or other person identified in the warrant to assist the police official identified in the warrant, with the search for, access or seizure of the article in question, to the extent set out in the warrant.
    1. A search warrant may be executed at any time, unless the person issuing the warrant in writing specifies otherwise.
    2. A search warrant may be issued on any day and is of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.
  5. A police official who executes a warrant under this section must hand to any person whose rights in respect of any search, or article accessed or seized under the warrant have been affected, a copy of the warrant and the written application of the police official contemplated in subsection (1)(a).
  6. The provisions of subsections (1) to (5) apply with the changes required by the context to an amendment of a warrant issued in terms of subsection (1).