Category: ECSP

Section 1 | Definitions and interpretation

(1) In this Act, unless the context indicates otherwise—

‘‘article’’ means any —

(a) data,
(b) computer program,
(c) computer data storage medium,
(d) or computer system,

which—

(i) is concerned with, connected with or is, on reasonable grounds, believed to be concerned with or connected with the commission or suspected commission;

(ii) may afford evidence of the commission or suspected commission; or

(iii) is intended to be used or is, on reasonable grounds, believed to be intended to be used in the commission, of—

(aa) an offence in terms of Part I or Part II of Chapter 2: or

(bb) any other offence in terms of the law of the Republic; or

(cc) an offence in a foreign State that is substantially similar to an offence contemplated in Part I or Part II of Chapter 2 or another offence recognised in the Republic;

‘‘computer’’ means any electronic programmable device used, whether by itself or as part of a computer system or any other device or equipment, or any part thereof, to perform predetermined arithmetic, logical, routing, processing or storage operations in accordance with set instructions and includes any data, computer program or computer data storage medium that are related to, connected with or used with such a device;

‘‘computer data storage medium’’ means any device from which data or a computer program is capable of being reproduced or on which data or a computer program is capable of being stored, by a computer system, irrespective of whether the device is physically attached to or connected with a computer system;

‘‘computer program’’ means data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function;

‘‘computer system’’ means—

(a) one computer; or

(b) two or more inter-connected or related computers, which allow these inter-connected or related computers to—

(i) exchange data or any other function with each other; or

(ii) exchange data or any other function with another computer or a computer system;

‘‘Constitution’’ means the Constitution of the Republic of South Africa, 1996;

‘‘Criminal Procedure Act, 1977’’ means the Criminal Procedure Act, 1977 (Act No. 51 of 1977);

‘‘Customs and Excise Act, 1964’’ means the Customs and Excise Act, 1964 (Act No. 91 of 1964);

‘‘Customs Control Act, 2014’’ means the Customs Control Act, 2014 (Act No. 31 of 2014);

‘‘data’’ means electronic representations of information in any form;

‘‘data message’’ means data generated, sent, received or stored by electronic means, where any output of the data is in an intelligible form;

‘‘designated judge’’ means a designated judge as defined in section 1 of the Regulation of Interception of Communications and Provision of Communication related Information Act, 2002;

‘‘designated Point of Contact’’ means the office established or designated in terms of section 52;

‘‘Electronic Communications Act, 2005’’ means the Electronic Communications Act, 2005 (Act No. 36 of 2005);

‘‘electronic communications network’’ means an electronic communications network as defined in section 1 of the Electronic Communications Act, 2005, and includes a computer system;

‘‘electronic communications service’’ means any service which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services as defined in section 1 of the Electronic Communications Act, 2005;

‘‘electronic communications service provider’’ means—

(a) any person who provides an electronic communications service to the public, sections of the public, the State, or the subscribers to such service, under and in accordance with an electronic communications service licence issued to that person in terms of the Electronic Communications Act, 2005, or who is deemed to be licenced or exempted from being licenced as such in terms of that Act; and

(b) a person who has lawful authority to control the operation or use of a private electronic communications network used primarily for providing electronic communications services for the owner’s own use and which is exempted from being licensed in terms of the Electronic Communications Act, 2005;

‘‘financial institution’’ means a ‘financial institution’ as defined in section 1 of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017);

‘‘foreign State’’ means any State other than the Republic;

‘Intelligence Services Oversight Act, 1994’’ means the Intelligence Services Oversight Act, 1994 (Act No. 40 of 1994);

‘‘International Co-operation in Criminal Matters Act, 1996’’ means the International Co-operation in Criminal Matters Act, 1996 (Act No. 75 of 1996);

‘‘Justices of the Peace and Commissioners of Oaths Act, 1963’’ means the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963);

‘‘magistrate’’ includes a regional court magistrate;

‘‘Magistrates’ Courts Act, 1944’’ means the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944);

‘‘National Commissioner’’ means the National Commissioner of the South African Police Service, appointed by the President under section 207(1) of the Constitution;

‘‘National Director of Public Prosecutions’’ means the person contemplated in section 179(1)(a) of the Constitution of the Republic of South Africa, 1996 and appointed in terms of section 10 of the National Prosecuting Authority Act, 1998;

‘‘National Environmental Management Act, 1998’’ means the National Environmental Management Act, 1998 (Act No. 107 of 1998);

‘‘National Head of the Directorate’’ means a person appointed in terms of section 17CA(1) of the South African Police Service Act, 1995 (Act No. 68 of 1995);

‘‘National Prosecuting Authority Act, 1998’’ means the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

‘‘National Strategic Intelligence Act, 1994’’ means the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994);

‘‘output of a computer program’’ means any—

(a) data or output of the data;

(b) computer program; or

(c) instructions,

generated by a computer program;

‘‘output of data’’ means by having data displayed or in any other manner;

‘‘person’’ means a natural or a juristic person;

‘‘police official’’ means a member of the South African Police Service as defined in section 1 of the South African Police Service Act, 1995;

‘‘Prevention of Organised Crime Act, 1998’’ means the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998);

‘‘Protection from Harassment Act, 2011’’ means the Protection from Harassment Act, 2011 (Act No. 17 of 2011);

‘‘Protection of Personal Information Act, 2013’’ means the Protection of Personal Information Act, 2013 (Act No. 4 of 2013);

‘‘publicly available data’’ means data which is accessible in the public domain without restriction;

‘‘Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002’’ means the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (Act No. 70 of 2002);

‘‘responsible party’’ means a responsible party as defined in section 1 of the Protection of Personal Information Act, 2013;

‘‘South African Police Service Act, 1995’’ means the South African Police Service Act, 1995 (Act No. 68 of 1995);

‘‘South African Reserve Bank’’ means the South African Reserve Bank, referred to in section 223 of the Constitution, read with the South African Reserve Bank Act, 1989;

‘‘South African Reserve Bank Act, 1989’’ means the South African Reserve Bank Act, 1989 (Act No. 90 of 1989);

‘‘specifically designated police official’’ means a police official of the rank of captain or above referred to in section 33 of the South African Police Service Act, 1995, who has been designated in writing by the National Commissioner and the National Head of the Directorate, respectively, to—

(a) make oral applications for a search warrant or an amendment of a warrant contemplated in section 30;

(b) issue expedited preservation of data directions contemplated in section 41; or

(c) serve or execute an order of the designated judge as contemplated in section 48(10);

‘‘Superior Courts Act, 2013’’ means the Superior Courts Act, 2013 (Act No. 10 of
2013);

‘‘Tax Administration Act, 2011’’ means the Tax Administration Act, 2011 (Act No. 28 of 2011); and

‘‘traffic data’’ means data relating to a communication indicating the communication’s origin, destination, route, format, time, date, size, duration or type, of the underlying service.

(2) For the purposes of section 2, 3(2) or (3), or 7(1) or (2) of this Act, any failure by a responsible party to comply with—

(a) the conditions for lawful processing of personal information referred to in Chapter 3;

(b) section 72; or

(c) the provisions of a code of conduct issued in terms of section 60,

of the Protection of Personal Information Act, 2013, must be dealt with in terms of Chapter 10 of that Act.

Section 15 | Data message which threatens persons with damage to property or violence

  1. A person commits an offence if they, by means of an electronic communications service, unlawfully and intentionally discloses a data message, which—
    1. threatens a person with—
      1. damage to property belonging to that person or a related person; or
      2. violence against that person or a related person; or
    2. threatens a group of persons or any person forming part of, or associated with, that group of persons with—
      1. damage to property belonging to that group of persons or any person forming part of, or associated with, that group of persons; or
      2. violence against the group of persons or any person forming part of, or associated with, that group of persons,
        and a reasonable person in possession of the same information, with due regard to all the circumstances, would perceive the data message, either by itself or in conjunction with any other data message or information, as a threat of damage to property or violence to a person or category of persons contemplated in paragraph (a) or (b), respectively.

Section 16 | Disclosure of data message of intimate image

  1. Any person (‘‘A’’) who unlawfully and intentionally discloses, by means of an electronic communications service, a data message of an intimate image of a person (‘‘B’’), without the consent of B, is guilty of an offence.
  2. For purposes of subsection (1)—
    1. ‘‘B’’ means—
      1. the person who can be identified as being displayed in the data message;
      2. any person who is described as being displayed in the data message, irrespective of the fact that he or she cannot be identified as being displayed in the data message; or
      3. any person who can be identified from other information as being displayed in the data message; and
    2. ‘‘intimate image’’ means a depiction of a person—
      1. real or simulated and made by any means in which—
        1. B is nude, or his or her genital organs or anal region of B is displayed, or if B is a female person, transgender person or intersex person, their breasts, are displayed; or
        2. the covered genital or anal region of B, or if B is a female person, transgender person or intersex person, their covered breasts, are displayed; and
      2. in respect of which B so displayed retains a reasonable expectation of privacy at the time that the data message was made in a manner that—
        1. violates or offends the sexual integrity or dignity of B; or
        2. amounts to sexual exploitation.

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 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 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 50 | Informing foreign State of outcome of request for mutual assistance and expedited disclosure of traffic data

  1. The National Director of Public Prosecutions must inform—
    1. the designated judge; and
    2. the applicable authority in a foreign State,
      of the outcome of the request for assistance and cooperation.
  2. Any traffic data made available in terms of an order referred to in section 48(6)(c), must be—
    1. provided to the designated Point of Contact, in the prescribed manner, for submission to the applicable authority in a foreign State; and
    2. accompanied by—
      1. a copy of the order referred to in section 48(6); and
      2. 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 information that is furnished.
  3. The traffic data together with the copy of the order and affidavit referred to in subsection (2), must be provided to the applicable authority in a foreign State which requested the assistance in terms of section 48(1).
  4. A person, electronic communications service provider or financial institution who—
    1. fails to comply with subsection (2) or any regulations contemplated in section 59(1)(a)(xxii); or
    2. makes a false statement in an affidavit referred to in subsection (2)(b)(ii),
      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.