Category: Cybercrimes Act

Section 40 | Interception of indirect communication, obtaining of real-time communication related information and archived communication-related information

  1. The interception of an indirect communication as defined in section 1 of the
    Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, must take place in terms of a direction issued in terms of section 16(4) or 18(3) of that Act and must, subject to subsection (4), be dealt with
    further in the manner provided for in that Act.
  2. The obtaining of real-time communication-related information as defined in section 1 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, on an ongoing basis, as it becomes available, must take place in terms of a direction issued in terms of section 17(3) or 18(3) of that Act, and must, subject to subsection (4), be dealt with further in the manner provided for in that Act.
  3. An electronic communications service provider who is—
    1. in terms of section 30(1)(b) of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, required to provide an electronic communications service which has the capability to store communication-related information; and
    2. not required to store communication-related information in terms of a directive issued in terms of section 30(2) of that Act,
      must, in addition to any other obligation imposed by any law, comply with—
      1. a real-time communication-related direction contemplated in subsection (2), in terms of which the electronic communications service provider is directed to provide real-time communication-related information in respect of a customer, on an ongoing basis, as it becomes available;
      2. an expedited preservation of data direction contemplated in section 41, in terms of which the electronic communications service provider is directed to preserve real-time communication-related information in respect of a customer;
      3. a preservation of evidence direction contemplated in section 42, in terms of which the electronic communications service provider is directed to preserve real-time communication-related information in respect of a customer;
      4. a disclosure of data direction contemplated in section 44, in terms of which the electronic communications service provider is directed to provide real-time communication-related information in respect of a customer that was preserved or otherwise stored by the electronic communications service provider; or
      5. any order of the designated judge in terms of section 48(6), in terms of which the electronic communications service provider is ordered to—
        1. obtain and preserve any real-time communication-related information; or
        2. obtain and furnish traffic data.
          [Commencement date: To be proclaimed]
  4. Any indirect communication which is to be intercepted or any real-time communication-related information or traffic data which is to be obtained, at the request of an authority, court or tribunal exercising jurisdiction in a foreign State must further be dealt with in the manner provided for in an order referred to in section 48(6), which is issued by the designated judge.

[Commencement date: To be proclaimed]

Section 41 | Expedited preservation of data direction

  1. A specifically designated police official may—
    1. if they believe on reasonable grounds that any person, an electronic communications service provider referred to in section 40(3), or a financial institution is—
      1. in possession of;
      2. to receive; or
      3. in control of,
        data as contemplated in paragraph (a) of the definition of ‘‘article’’; and
    2. with due regard to the rights, responsibilities and legitimate interests of other persons in proportion to the severity of the offence in question,
      issue an expedited preservation of data direction to such a person, electronic communications service provider or financial institution.
  2. Subsection (1) also applies to—
    1. archived communication-related information which an electronic communications service provider is no longer required to store due to the fact that the period contemplated in section 30(2)(a)(iii) of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, is due to come to an end; or
    2. any other data which—
      1. must be stored for a certain period in terms of any other law and that period is due to come to an end; or
      2. is stored by an electronic communications service provider which is not real-time communication-related information or archived communication-related information as contemplated in section 1, read with section 30(2) and any directive issued in terms of that section, of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002.
  3. An expedited preservation of data direction must be in the prescribed form and must be served on the person, electronic communications service provider or financial institution affected thereby, in the prescribed manner by a police official.
  4. An expedited preservation of data direction must direct the person, electronic communications service provider or financial institution affected thereby, from the time of service of the direction, and for a period of 21 days—
    1. to preserve the current status of;
    2. not to deal in any manner with; or
    3. to deal in a certain manner with,
      the data referred to in the direction in order to preserve the availability and integrity of the data.
  5. No data may be disclosed to a police official on the strength of an expedited preservation of data direction, unless it is authorised in terms of section 44.
  6. The 21 day period referred to in subsection (4), may only be extended by way of a preservation of evidence direction contemplated in section 42, once, for an additional period which may not exceed 90 days.
  7. A person, electronic communications service provider or financial institution to whom an expedited preservation of data direction, referred to in subsection (1), is addressed may, in writing in the prescribed form and manner, apply to a magistrate in whose area of jurisdiction the person, electronic communications service provider or financial institution is situated, for an amendment or the cancellation of the direction concerned on the ground that they cannot timeously or in a reasonable fashion, comply with the direction.
  8. The magistrate to whom an application is made in terms of subsection (7) must, as soon as possible after receipt thereof—
    1. consider the application and may for this purpose, order oral or written evidence to be adduced regarding any fact alleged in the application;
    2. give a decision in respect of the application; and
    3. inform the applicant and specifically designated police official referred to in subsection (1) of the outcome of the application.
  9. A person, electronic communications service provider or financial institution referred to in subsection (1) who—
    1. fails to comply with an expedited preservation of data direction or contravenes the provisions of subsection (5); or
    2. makes a false statement in an application referred to in subsection (7),
      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.

[Commencement date: To be proclaimed]

Section 42 | Preservation of evidence direction

  1. A magistrate or judge of the High Court, may—
    1. upon written application by a police official;
    2. if it appears to the magistrate or judge upon consideration of the information provided under oath or by way of affirmation, as set out in the application, that
      there are reasonable grounds to believe that any person, electronic communications service provider or financial institution—
      1. may receive;
      2. is in possession of; or
      3. is in control of,
        an article; and
    3. with due regard to the rights, responsibilities and legitimate interests of other
      persons in proportion to the severity of the offence in question,
      issue a preservation of evidence direction.
  2. A preservation of evidence direction must be in the prescribed form and must be
    served on the person, electronic communications service provider or financial institution affected thereby, in the prescribed manner by a police official.
  3. The preservation of evidence direction must direct the person, electronic
    communications service provider or financial institution, from the time of service of the direction, and for the time period specified in the direction, which may not exceed 90 days—
    1. to preserve the current status of;
    2. not to deal in any manner with; or
    3. to deal in a certain manner with,
      an article in order to preserve the availability or integrity of the article.
  4. Any person, electronic communications service provider or financial institution
    who fails to comply with a preservation of evidence direction is guilty of an offence and 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.
  5. A person, electronic communications service provider or financial institution to
    whom a preservation of evidence direction referred to in subsection (1) is addressed
    may, in writing in the prescribed form and manner, apply to a magistrate or judge of the High Court in whose area of jurisdiction the person, electronic communications service provider or financial institution is situated for an amendment or the cancellation of the direction concerned on the ground that they cannot timeously or in a reasonable fashion, comply with the direction.
  6. The magistrate or judge of the High Court to whom an application is made in terms
    of subsection (5) must, as soon as possible after receipt thereof—
    1. consider the application and may, for this purpose, order oral or written evidence to be adduced regarding any fact alleged in the application;
    2. give a decision in respect of the application; and
    3. inform the applicant and police official of the outcome of the application.

[Commencement date: To be proclaimed]

Section 43 | Oral application for preservation of evidence direction

  1. A police official may orally make an application referred to in section 42(1), if
    they are of the opinion that 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 receipt of an oral application
    made to them in terms of subsection (1), issue the preservation of evidence direction
    applied for.
  4. A preservation of evidence direction 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 preservation of evidence
        direction applied for could be issued;
      2. a preservation of evidence direction is necessary immediately in order to
        ensure the availability or integrity, of the article; 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 the preservation of evidence direction applied for;
        and
    2. 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 preservation of evidence direction under
      subsection (3).
  5. A preservation of evidence direction issued under subsection (3) must be in
    writing and must be transmitted electronically to the police official or be provided to a specifically designated police official.
  6. A magistrate or judge of the High Court who issued a direction under subsection (3) or, if they are not available, 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 preservation of evidence direction.

[Commencement date: To be proclaimed]

Section 44 | Disclosure of data direction and search for, access to and seizure of articles subject to preservation

    1. A police official may, where it is expedient, other than by way of a search and seizure in terms of a warrant contemplated in section 29(1), to obtain—
      1. data which is subject to preservation in terms of an expedited preservation of
        data direction or a preservation of evidence direction; or
      2. data as contemplated in paragraph (a) of the definition of ‘‘article’’, which is—
        1. held in a computer system or computer storage medium; or
        2. available to a computer system,
          apply to a magistrate or judge of the High Court for the issuing of a disclosure of data direction.
    2. An application referred to in paragraph (a)(i) must—
      1. indicate the identity of the police official who applies for the disclosure of data
        direction;
      2. identify the person, electronic communications service provider or financial
        institution to whom the disclosure of data direction must be addressed;
      3. be accompanied by a copy of the expedited preservation of data direction or
        preservation of evidence direction or any amendment thereof;
      4. contain a description of the data which must be provided and the format in which it must be provided;
      5. specify the grounds for believing that the data is an article as contemplated in
        paragraph (a) of the definition of ‘‘article’’; and
      6. comply with any supplementary directives relating to applications for the
        disclosure of data, which may be issued by the Chief Justice in terms of section
        8(3) of the Superior Courts Act, 2013.
    3. An application referred to in paragraph (a)(ii) must—
      1. indicate the identity of the policy official who applies for the disclosure of data
        direction;
      2. identify the person, electronic communications service provider or financial
        institution to whom the disclosure of data direction must be addressed;
      3. contain a description of the data which must be provided and the format in which it must be provided;
      4. specify the grounds for believing that the data is an article as contemplated in
        paragraph (a) of the definition of ‘‘article’’;
      5. specify the grounds for believing that the data, in question, is held in a computer system or computer data storage medium or is available to a computer system that is under the control of the person, electronic communications service provider or financial institution, referred to in subparagraph (ii), within the area of jurisdiction of the court; and
      6. comply with any supplementary directives relating to applications for the
        disclosure of data, which may be issued by the Chief Justice in terms of section
        8(3) of the Superior Courts Act, 2013.
  2. A magistrate or judge of the High Court may, subject to the provisions of section
    4(2) 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,
    on the written application by a police official referred to in subsection (1), if it appears to the magistrate or judge from information on oath or by way of affirmation, as set out in the application that—
    1. there are reasonable grounds for believing that—
      1. data which is subject to preservation in terms of an expedited
        preservation of data direction or a preservation of evidence direction, is
        an article as contemplated in paragraph (a) of the definition of ‘‘article’’; or
      2. data, which is an article as contemplated in paragraph (a) of the definition
        of ‘‘article’’, is—
        1. held in a computer system or computer data storage medium; or
        2. available to a computer system, within their area of jurisdiction; and
    2. it will be in the interests of justice if a disclosure of data direction is issued, issue the disclosure of data direction applied for.
  3. A disclosure of data direction must be in the prescribed form and must be served on the person, electronic communications service provider or financial institution affected thereby, in the prescribed manner by a police official.
  4. The disclosure of data direction—
    1. must direct the person, electronic communications service provider or financial institution to provide the data identified in the direction to the extent set out in the direction to an identified police official;
    2. must specify the format in which the data identified in paragraph (a) must be provided;
    3. must set out the period within which the data identified in paragraph (a) must be provided; and
    4. may specify conditions or restrictions relating to the provision of data authorised therein.
  5. A person, electronic communications service provider or financial institution on whom a disclosure of data direction referred to in subsection (3) is served may, in writing in the prescribed form and manner, apply to the magistrate or judge for an amendment or the cancellation of the direction concerned on the ground that they cannot timeously or in a reasonable fashion comply with the direction.
  6. The magistrate or judge to whom an application is made in terms of subsection (5) must, as soon as possible after receipt thereof—
    1. consider the application and may, for this purpose, order oral or written evidence to be adduced regarding any fact alleged in the application;
    2. give a decision in respect of the application; and
    3. if the application is successful, inform the police official and the applicant of the outcome of the application.
  7. Any data made available in terms of a disclosure of data direction, must be—
    1. provided to the police official identified in the direction; and
    2. accompanied by 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 data that is furnished.
  8. A person, electronic communications service provider or a financial institution who—
    1. fails to comply with a disclosure of data direction;
    2. makes a false statement in an application referred to in subsection (5); or
    3. fails to comply with subsection (7),
      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.
    4. Any article subject to a preservation of evidence direction that is not ‘‘data’’ must be seized in terms of a warrant referred to in section 29(1).
    5. A police official may, at any time, apply for a search warrant in terms of section 29(1) to search for, access or seize an article (which includes ‘‘data’’) that is or was subject to an expedited preservation of data direction or a preservation of evidence direction.

[Commencement date: To be proclaimed]

Section 45 | Obtaining and using publicly available data or receiving data from person who is in possession of data

  1. A police official may, without being specifically authorised thereto in terms of this Chapter, for the purposes of investigating any offence or suspected offence in terms of Part I or Part II of Chapter 2 or any other offence or suspected offence in terms of the laws of the Republic, which may be committed by means of, or facilitated through the use of, an article—
    1. receive, obtain or use publicly available data regardless of where the data is located geographically; or
    2. receive and use non-publicly available data, regardless of where the data is located geographically, if a person who is in control of, or possesses the data, voluntarily and on such conditions regarding confidentiality and limitation of use which they deem necessary, discloses the data to a police official.

Section 46 | Application of provisions of Chapter


  1. The provisions of sections 48 to 51 apply in addition to Chapter 2 of the International Co-operation in Criminal Matters Act, 1996, and relate, unless specified otherwise, to the preservation of an article or other evidence in electronic format regarding the commission or suspected commission of—
    1. an offence in terms of 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,
        pending a request in terms of section 2 or 7 of the International Co-operation in Criminal Matters Act, 1996.

Section 47 | Spontaneous information

  1. The National Commissioner or the National Head of the Directorate, may, on such conditions regarding confidentiality and limitation of use as they may determine, furnish any information obtained during any investigation, to a law enforcement agency of a foreign State when the National Commissioner or the National Head of the Directorate is of the opinion that the disclosure of such information may—
    1. assist the foreign State in the initiation or carrying out of investigations; or
    2. lead to further cooperation with a foreign State to carry out an investigation, regarding the commission or suspected commission of—
      1. an offence contemplated in Part I or Part II of Chapter 2, in the Republic;
      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 that foreign State.
  2. The South African Police Service may receive any information from a foreign State, subject to such conditions regarding confidentiality and limitation of use as may be agreed upon, which may—
    1. assist the South African Police Service in the initiation or carrying out of investigations; or
    2. lead to further cooperation with a foreign State to carry out an investigation, regarding the commission or suspected commission of—
      1. an offence contemplated in Part I or Part II of Chapter 2, in the Republic;
      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 that foreign State.

Section 48 | Foreign requests for assistance and cooperation

  1. A request by an authority, court or tribunal exercising jurisdiction in a foreign State for the—
    1. preservation of data or other article;
    2. seizure of data or other article;
    3. expedited disclosure of traffic data;
    4. obtaining of real-time communication-related information or archived communication-related information; or
    5. interception of indirect communications,
      must, subject to subsection (9), be submitted to the designated Point of Contact.
  2. The designated Point of Contact must submit the request to the National Director of Public Prosecutions for consideration.
    1. Upon receipt of a request referred to in subsection (2), the National Director of Public Prosecutions must satisfy himself or herself that—
      1. proceedings have been instituted in a court or tribunal exercising jurisdiction in the requesting foreign State; or
      2. there are reasonable grounds for believing that an offence has been committed in the requesting foreign State or that it is necessary to determine whether an offence has been so committed and that an investigation in respect thereof is being conducted in the requesting foreign State; and
      3. the offence in question is—
        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; and
      4. the foreign State intends to submit a request in terms of section 7 of the International Co-operation in Criminal Matters Act, 1996, for obtaining the data, information, a communication or an article in the Republic for use in such proceedings or investigation in the foreign State.
    2. For purposes of paragraph (a), the National Director of Public Prosecutions may rely on a certificate purported to be issued by a competent authority in the foreign State concerned, stating the facts contemplated in subsection (3)(a).
    1. The National Director of Public Prosecutions must submit the request for assistance, together with their recommendations, to the Cabinet member responsible for the administration of justice, for the Cabinet member’s approval.
    2. Upon being notified of the Cabinet member’s approval the National Director of Public Prosecutions must forward the request contemplated in subsection (1) to the designated judge for consideration.
  5. Where the request relates to the expedited disclosure of traffic data, subsections (3)(a)(iv) and (4) do not apply, and the National Director of Public Prosecutions must submit the request for assistance, together with their recommendations, to the designated judge.
  6. Subject to subsections (7) and (8), the designated judge may on receipt of a request referred to in subsection (4) or (5), issue any order they deem appropriate to ensure that the requested—
    1. data or other article is preserved in accordance with section 42;
    2. data or other article is seized on an expedited basis in accordance with section 29 and preserved;
    3. traffic data is disclosed on an expedited basis in terms of a disclosure of data direction in accordance with section 44;
    4. real-time communication-related information or archived communication related information, is obtained and preserved; or
    5. indirect communications are intercepted and preserved,
      as is specified in the request.
  7. The designated judge may only issue an order contemplated in subsection (6), if—
    1. on the facts alleged in the request, there are reasonable grounds to believe that—
      1. an offence substantially similar to the offences contemplated in Part I or Part II of Chapter 2 has been, is being, or will probably be committed; or
      2. any other offence substantially similar to an offence recognised in the Republic, has been, is being, or will probably be committed by means of, or facilitated through the use of, an article; and
      3. for purposes of the investigation it is necessary, in the interests of justice, to give an order contemplated in subsection (6);
    2. the request clearly identifies—
      1. the person, electronic communications service provider or financial institution—
        1. who or which will receive, is in possession of, or is in control of, the data or other article that must be preserved; or
        2. from whose facilities the data, real-time communication-related information, archived communication-related information, indirect communications or traffic data must be obtained or intercepted;
      2. the data or other article which must be preserved;
      3. the data or other article which must be seized on an expedited basis and be preserved;
      4. the traffic data which must be disclosed on an expedited basis;
      5. the real-time communication-related information or archived communication-related information, which is to be obtained; or
      6. the indirect communications, which are to be intercepted;
    3. the request is, where applicable, in accordance with—
      1. any treaty, convention or other agreement to which that foreign State and the Republic are parties or which can be used as a basis for mutual assistance; or
      2. any agreement with any foreign State entered into in terms of section 57; and
    4. the order contemplated in subsection (6) is in accordance with any applicable law of the Republic.
  8. The designated judge may, where a request relates to the expedited disclosure of traffic data—
    1. specify conditions or restrictions relating to the disclosure of traffic data as they deem appropriate; or
    2. refuse to issue an order referred to in subsection (6)(c), if the disclosure of the traffic data may prejudice the sovereignty, security, public safety or other essential interests of the Republic.
    1. In the case of urgency, a request by any authority, court or tribunal exercising jurisdiction in a foreign State referred to in subsection (1), may be submitted directly to the designated judge.
    2. Upon receipt of a request in terms of paragraph (a), the designated judge may issue any order referred to in subsection (6).
    1. A specifically designated police official must serve or execute an order contemplated in subsection (6).
    2. The specifically designated police official referred to in paragraph (a), must inform—
      1. the designated judge; and
      2. the National Director of Public Prosecutions,
        in writing, of the fact that an order has been served or executed.
  11. The National Director of Public Prosecutions must, in writing, inform the
  12. applicable authority in a foreign State of the fact that an order was issued and executed or not issued.

Section 49 | Complying with order of designated judge

  1. A person, electronic communications service provider or financial institution must comply with an order of the designated judge issued in terms of section 48(6).
  2. A person, electronic communications service provider or financial institution to whom an order referred to in section 48(6) is addressed may, in writing, apply to the designated judge for an amendment or the cancellation of the order concerned on the ground that they cannot timeously or in a reasonable fashion, comply with the order.
  3. The designated judge to whom an application is made in terms of subsection (2) must, as soon as possible after receipt thereof—
    1. consider the application and may, for this purpose, order oral or written evidence to be adduced regarding any fact alleged in the application;
    2. give a decision in respect of the application; and
    3. if the application is successful, inform the National Director of Public Prosecutions of the outcome of the application.
  4. A person, electronic communications service provider or financial institution who—
    1. fails to comply with an order referred to in section 48(6); or
    2. makes a false statement in an application referred to in subsection (2),
      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.