Section 53 | Proof of certain facts by affidavit

  1. Whenever any fact established by any examination or process requiring any skill in—
    1. the interpretation of data;
    2. the design or functioning of data, a computer program, a computer data storage medium or a computer system;
    3. computer science;
    4. electronic communications networks and technology;
    5. software engineering; or
    6. computer programming,
      is or may become relevant to an issue at criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, 1998, a document purporting to be an affidavit or a solemn or attested declaration made by a person who, in that document, states that they—
        1. fall within a category of persons within the Republic; or
        2. are in the service of a body in the Republic or a foreign State,
          designated by the Cabinet member responsible for the administration of justice, by notice in the Gazette;
      1. possess relevant qualifications, expertise and experience which makes them competent to make the affidavit; and
      2. have established such fact by means of an examination or process that is documented in the document,
        is, upon its mere production at such proceedings, prima facie proof of such fact.
  2. Any person who makes an affidavit or a solemn or attested declaration under subsection (1) and who in such affidavit or solemn or attested declaration wilfully states anything which is false, 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.
  3. The court before which an affidavit or solemn or attested declaration is produced as prima facie proof of the relevant contents thereof may, in its discretion, cause the person who made the affidavit or solemn or attested declaration to be subpoenaed to give oral evidence in the proceedings in question or may cause written interrogatories to be submitted to such person for reply and such interrogatories and any reply thereto purporting to be a reply from such person are likewise admissible in evidence at such proceedings.
  4. No provision of this section affects any other law under which any certificate or other document is admissible in evidence and the provisions of this section are deemed to be additional to and not in substitution of any such law.
    1. For the purposes of subsection (1), a document purporting to be an affidavit or a solemn or attested declaration made by a person who in that affidavit alleges that they are in the service of a body in the Republic or a foreign State designated by the Cabinet member responsible for the administration of justice, by notice in the Gazette, has no effect unless it is—
      1. obtained in terms of an order of a competent court or on the authority of a government institution of the foreign State concerned, as the case may be; and
      2. authenticated—
        1. in the manner prescribed in the rules of court for the authentication of documents executed outside the Republic; or
        2. by a person and in the manner contemplated in section 7 or 8 of the Justices of the Peace and Commissioners of Oaths Act, 1963.
    2. The admissibility and evidentiary value of an affidavit contemplated in paragraph (a) are not affected by the fact that the form of the oath, confirmation or attestation thereof differs from the form of the oath, confirmation or attestation prescribed in the Republic.
    3. A court before which an affidavit or a solemn or attested declaration contemplated in paragraph (a) is placed may, in order to clarify any obscurities in the said affidavit, order that a supplementary affidavit or a solemn or attested declaration be submitted or that oral evidence be heard: Provided that oral evidence may only be heard if the court is of the opinion that it is in the interests of the administration of justice and that a party to the proceedings would be prejudiced materially if oral evidence is not heard.

Section 54 | Obligations of electronic communications service providers and financial institutions

  1. An electronic communications service provider or financial institution that is aware or becomes aware that its electronic communications service or electronic communications network is involved in the commission of any category or class of offences provided for in Part I of Chapter 2 and which is determined in terms of subsection (2), must—
    1. without undue delay and, where feasible, not later than 72 hours after having become aware of the offence, report the offence in the prescribed form and manner to the South African Police Service; and
    2. preserve any information which may be of assistance to the South African Police Service in investigating the offence.
  2. The Cabinet member responsible for policing, in consultation with the Cabinet member responsible for the administration of justice, must by notice in the Gazette, prescribe—
    1. the category or class of offences which must be reported to the South African Police Service in terms of subsection (1); and
    2. the form and manner in which an electronic communications service provider or financial institution must report offences to the South African Police Service.
  3. An electronic communications service provider or financial institution that fails to comply with subsection (1), is guilty of an offence and is liable on conviction to a fine not exceeding R50 000.
  4. Subject to any other law or obligation, the provisions of subsection (1) must not be interpreted as to impose obligations on an electronic service provider or financial institution to—
    1. monitor the data which the electronic communications service provider or financial institution transmits or stores; or
    2. actively seek facts or circumstances indicating any unlawful activity.
  5. This section does not apply to a financial sector regulator or a function performed by the South African Reserve Bank in terms of section 10 of the South African Reserve Bank Act, 1989.

[Commencement date of section 54: To be proclaimed]

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.