Category: Data crimes

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.

Section 51 | Issuing of direction requesting assistance from foreign State

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

Section 52 | Establishment and functions of designated point of contact

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

Section 55 | Capacity detect, prevent and investigate cybercrimes

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

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

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