Category: Cybercrimes Act

Section 30 | Oral application for search warrant or amendment of warrant

  1. An application referred to in section 29(1)(a), or an application for the amendment of a warrant issued in terms of section 29(1)(a), may be made orally by a specifically designated police official, if it is not reasonably practicable, having regard to the urgency of the case or the existence of exceptional circumstances, to make a written
    application.
  2. An oral application referred to in subsection (1) must—
    1. indicate the particulars of the urgency of the case or the other exceptional circumstances which, in the opinion of the police official, justify the making of an oral application; and
    2. comply with any supplementary directives relating to oral applications which may be issued by the Chief Justice in terms of section 8(3) of the Superior Courts Act, 2013.
  3. A magistrate or judge of the High Court may, upon an oral application made to them in terms of subsection (1) and subject to subsection (4), issue a warrant or amend a warrant as contemplated in section 29(1)(a).
  4. A warrant or any amendment to a warrant may only be issued under subsection (3)—
    1. if the magistrate or judge of the High Court concerned is satisfied, on the facts alleged in the oral application concerned, that—
      1. there are reasonable grounds to believe that a warrant or any amendment to a warrant applied for could be issued;
      2. a warrant or an amendment to a warrant is necessary immediately in order to search for, access or seize an article—
        1. within their 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 in or has been used or was involved in the commission of an offence; and
        3. it is not reasonably practicable, having regard to the urgency of the case or the existence of exceptional circumstances, to make a written application for the issuing of a warrant or to amend a warrant; and
      3. on condition that the police official concerned must submit a written application to the magistrate or judge of the High Court concerned within 48 hours after the issuing of the warrant or amended warrant under subsection (3).
  5. A warrant or any amendment to a warrant issued under subsection (3) must—
    1. be in writing;
    2. be transmitted electronically to the police official or be provided to the specifically designated police official; and
    3. contain a summary of the facts which were considered and the grounds upon which the warrant was issued.
  6. A magistrate or judge of the High Court who has issued a warrant or amended a warrant under subsection (3) or, if unavailable, any other magistrate or judge of the High Court must, upon receipt of a written application in terms of subsection (4)(b), reconsider that application whereupon they may confirm, amend or cancel that warrant.
  7. A magistrate or judge of the High Court contemplated in subsection (6), who amends or cancels the warrant must make an order they deem fit on how any article which is affected by their decision is to be dealt with.

Section 31 | Search for, access to, or seizure of article without search warrant with consent of person who has lawful authority to consent

  1. Any police official may, without a search warrant, execute the powers referred to in section 29(2), subject to any other law, if the person who has the lawful authority to consent to the search for, access to, or seizure of the article in question, consents, in writing, to such search, access or seizure.
  2. A police official acting in terms of subsection (1), may, subject to the lawful consent, in writing, of the person who has the lawful authority to consent, in writing authorise an investigator to assist them with the search for, access to, or seizure of the article in question.

Section 32 | Search for, access to, or seizure of article involved in the commission of an offence without search warrant

  1. A police official may without a search warrant referred to in section 29(1)(a) search any person, container, premises, vehicle, facility, ship or aircraft for the purposes of performing the powers referred to in paragraphs (a) and (b) of the definition of ‘‘seize’’ in respect of a computer data storage medium or any part of a computer system referred to in paragraph (c) or (d) of the definition of ‘‘article’’, if the police official on reasonable grounds believes—
    1. that a search warrant will be issued to them under section 29(1)(a) if they apply for such warrant; and
    2. that the delay in obtaining such warrant would defeat the object of the search and seizure.
  2. A police official may only access or perform the powers referred to in paragraphs (c) or (d) of the definition of ‘‘seize’’, in respect of the computer data storage medium or a computer system referred to in subsection (1), in accordance with a search warrant issued in terms of section 29(1)(a): Provided that a police official may, if they on reasonable grounds believe—
    1. that a search warrant will be issued to them under section 29(1)(a) if they apply for such warrant; and
    2. it is not reasonably practicable, having regard to the urgency of the case or the existence of exceptional circumstances, to make a written or oral application for a search warrant,
      access and perform the powers referred to in paragraph (c) or (d) of the definition of ‘‘seize’’ without a search warrant.
  3. An investigator authorised in writing by a police official may assist the police official to seize an article as contemplated subsections (1) and (2) and to access the article as contemplated in subsection (2).

Section 33 | Search for, access to, or seizure of article on arrest of person

  1. A police official may without a warrant, as contemplated in section 40 of the Criminal Procedure Act, 1977, arrest any person—
    1. who commits any offence in terms of Part I or Part II of Chapter 2 in their presence;
    2. whom they reasonably suspect of having committed any offence in terms of Part I and Part II of Chapter 2; or
    3. who is concerned with or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that they have been concerned with 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 by the use of an article,
        in a foreign State, and for which they are, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic.
  2. On the arrest of a person contemplated in subsection (1) or in terms of section 40 or 43 of the Criminal Procedure Act, 1977, a police official may search for and perform the powers referred to in paragraphs (a) and (b) of the definition of ‘‘seize’’ in respect of a computer data storage medium or any part of a computer system referred to in paragraph (c) or (d) of the definition of ‘‘article’’, which is found in the possession of or in the custody or under the control of the person.
  3. A police official may only access or perform the powers referred to in paragraph (c) or (d) of the definition of ‘‘seize’’, in respect of a computer data storage medium or a computer system referred to in subsection (2), in accordance with a search warrant issued in terms of section 29(1)(a): Provided that a police official may, if they on reasonable grounds believe—
    1. that a search warrant will be issued to them under section 29(1)(a), if they apply for such warrant; and
    2. it is not reasonably practicable, having regard to the urgency of the case or the existence of exceptional circumstances, to make a written or oral application for a search warrant,
      access and perform the powers referred to in paragraph (c) and (d) of the definition of ‘‘seize’’ without a search warrant.
  4. An investigator authorised in writing by a police official may assist the police official to seize an article as contemplated subsections (2) and (3) and to access the article as contemplated in subsection (3).

Section 34 | Assisting police official or investigator

  1. An electronic communications service provider, financial institution or person,
    other than the person who is suspected of having committed the offence which is being investigated, who is in control of any container, premises, vehicle, facility, ship, aircraft, data, computer program, computer data storage medium or computer system that is subject to a search authorised in terms of section 29(1) must, if required, provide—
    1. technical assistance; and
    2. such other assistance as may be reasonably necessary,
      to a police official or investigator in order to search for, access or seize an article.
  2. An electronic communications service provider, financial institution or person who fails to comply with the provisions of subsection (1) 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 35 | Obstructing or hindering police official or investigator and authority to overcome resistance

  1. Any person who unlawfully and intentionally obstructs or hinders a police
    official or an investigator in the exercise of their powers or the performance of their
    duties or functions in terms of this Chapter or who refuses or fails to comply with a
    search warrant issued in terms of section 29(1), 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 afine and such imprisonment.
    1. A police official who may lawfully execute any power conferred upon them in terms of section 29(2), may use such force as may be—
      1. reasonably necessary; and
      2. proportional to all the circumstances,
        relating to the execution of such powers.
    2. No police official may enter upon or search any premises, vehicle, facility, ship or aircraft unless they have audibly demanded admission to the premises, vehicle, facility, ship or aircraft and have notified the purpose of their entry.
    3. The provisions of paragraph (b) do not apply where the police official is, on reasonable grounds, of the opinion that an article which is the subject of the search may be destroyed, disposed of or tampered with if the provisions of paragraph (b) are complied with.

Section 36 | Powers conferred upon police official or investigator to be conducted in decent and orderly manner with due regard to rights of other persons

  1. The powers conferred upon a police official or an investigator in terms of section 29(2), 31, 32 or 33, must be conducted—
    1. with strict regard to decency and order; and
    2. with due regard to the rights, responsibilities and legitimate interests of other
      persons in proportion to the severity of the offence.
  2. If a female needs to be searched physically in terms of section 29(2)(a), (c) or (d),
    32 or 33, such search must be carried out by a police official who is also a female:
    Provided that if no female police official is available, the search must be carried out by any female designated for that purpose by a police official.

Section 37 | Wrongful search, access or seizure and restriction on use of instrument, device, password or decryption key or information to gain access

  1. A police official or an investigator who unlawfully and intentionally—
    1. acts contrary to the authority of—
      1. a search warrant issued under section 29(1); or
      2. consent granted in terms of section 31(1); or
    2. without being authorised thereto under this Chapter or the provision of any other law which affords similar powers to a police official or an investigator—
      1. searches for, accesses or seizes data, a computer program, a computer data storage medium or any part of a computer system; or
      2. obtains or uses any instrument, device, password, decryption key or other information that is necessary to access data, a computer program, a computer data storage medium or any part of a computer system,
        is guilty of an offence.
    1. A police official or an investigator who obtains or uses any instrument, device, equipment, password, decryption key, data or other information contemplated in section 29(2)(h)
      1. must use the instrument, device, equipment, password, decryption key, data or information only in respect of and to the extent specified in the warrant to gain access to or use data, a computer program, a computer data storage medium or any part of a computer system in the manner and for the purposes specified in the search warrant concerned; and
      2. must destroy all passwords, decryption keys, data or other information if—
        1. it is not required by a person who may lawfully possess the passwords, decryption keys, data or other information;
        2. it will not be required for purposes of any criminal proceedings or civil proceedings contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, 1998, or for purposes of evidence or for purposes of an order of court; or
        3. no criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, 1998, are to be instituted in connection with such information.
    2. A police official or an investigator who unlawfully and intentionally—
      1. uses an instrument, device, equipment, password, decryption key, data or information outside the authorisation of a warrant as contemplated in paragraph (a)(i); or
      2. fails to destroy all passwords, decryption keys, data or other information as contemplated in paragraph (a)(ii),
        is guilty of an offence.
    3. A police official or an investigator who contravenes or fails to comply with subsection (1) or (2), is liable on conviction to a fine or imprisonment for a period not exceeding 2 years or to both a fine and such imprisonment.
    4. Where a police official or an investigator is convicted of an offence referred to in subsection (1) or (2), the court convicting such a person may, upon application of any person who has suffered damage or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 of the Criminal Procedure Act, 1977, shall apply with the necessary changes required by the context to such award.

Section 38 | False information under oath or by way of affirmation

  1. Any person who unlawfully or intentionally gives false information under oath or by way of affirmation knowing it to be false or not knowing it to be true, with the result that—
    1. a search warrant is issued;
    2. a search contemplated in section 31 took place on the basis of such information;
    3. a person, container, premises, vehicle, facility, ship or aircraft is searched or a computer data storage medium or any part of a computer system is seized or accessed in terms of section 32;
    4. an expedited preservation of data direction contemplated in section 41 is issued;
      [Commencement date: To be proclaimed]
    5. a preservation of evidence direction contemplated in section 42 is issued; or
      [Commencement date: To be proclaimed]
    6. a disclosure of data direction contemplated in section 44 is issued,
      [Commencement date: To be proclaimed]
      is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both such fine and imprisonment.
  2. Where a person is convicted of an offence referred to in subsection (1), the court convicting such a person may, upon application of any person who has suffered damage or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 of the Criminal Procedure Act, 1977, shall apply with the necessary changes required by the context to such award.

Section 39 | Prohibition on disclosure of information

  1. No person, investigator, police official, electronic communications service provider, financial institution or an employee of an electronic communications service provider or financial institution may, subject to subsection (2), disclose any information which they have obtained in the exercise of their powers or the performance of their duties in terms of Chapters 4 or 5 of this Act, except—
    1. to any other person who of necessity requires it for the performance of their functions in terms of this Act;
    2. if they are a person who of necessity supplies such information in the performance of their duties or functions in terms of this Act;
    3. if it is information which is required in terms of any law or as evidence in any court of law;
    4. if it constitutes information-sharing between electronic communications service providers, financial institutions, the South African Police Service, competent authorities or any other person or entity which is aimed at preventing, detecting, investigating or mitigating cybercrime: Provided that such information-sharing may not prejudice any criminal investigation or criminal proceedings; or
    5. to any competent authority in a foreign State which requires it for the prevention, detection, or mitigation of cybercrime, or the institution of criminal proceedings or an investigation with a view to institute criminal proceedings.
  2. The prohibition on disclosure of information contemplated in subsection (1) does not apply where the disclosure—
    1. is authorised in terms of this Act or any other Act of Parliament; or
    2. reveals a criminal activity.
  3. A person, investigator, police official, electronic communications service provider, financial institution or an employee of an electronic communications service provider or financial institution who unlawfully and intentionally contravenes the provisions of subsection (1) is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding three years or to both a fine and such imprisonment.