Category: Data crimes

ACT

To create offences which have a bearing on cybercrime; to criminalise the
disclosure of data messages which are harmful and to provide for interim
protection orders;

to further regulate jurisdiction in respect of cybercrimes; to further regulate the powers to investigate cybercrimes;

to further regulate aspects relating to mutual assistance in respect of the investigation of cybercrimes;

to provide for the establishment of a designated Point of Contact; to further provide for the proof of certain facts by affidavit;

to impose obligations to report cybercrimes;

to provide for capacity building;

to provide that the Executive may enter into agreements with foreign States to promote measures aimed at the detection, prevention, mitigation and investigation of cybercrimes;

to delete and amend provisions of certain laws; and

to provide for matters connected therewith.

PARLIAMENT of the Republic of South Africa therefore enacts, as follows:—

 

Section 11 | Aggravated offences

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

Section 18 | Competent verdicts

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

Section 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 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).

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).