The full text of the Cybercrimes Act in South Africa
Section 22 | Orders on finalisation of criminal proceedings
Whenever a person is—
convicted of an offence in terms of section 14, 15 or 16; or
acquitted of an offence in terms of section 14, 15 or 16, but evidence proves that the person engaged in, or attempted to engage in, harassment as contemplated in the Protection from Harassment Act, 2011, the trial court may, after holding an enquiry, issue a protection order contemplated in section 9(4) of the Protection from Harassment Act, 2011, against the person, whereafter the provisions of that Act must apply with the necessary changes required by the context.
The trial court which convicts a person of an offence contemplated in section 14, 15 or 16, must order—
that person to refrain from further making available, disclosing or distributing the data message contemplated in section 14, 15 or 16, which relates to the charge on which that person is convicted
that person or any other person to destroy the data message in question, any copy of the data message or any output of the data message and to submit an affidavit in the prescribed form to the prosecutor identified in the order that the data message has been so destroyed; or
an electronic communications service provider to remove or disable access to the data message in question.
The order referred to in subsection (2)(b), in so far as it relates to a person other than the person who has been convicted of the offence, and subsection (2)(c), must be in the prescribed form and must be served on the person or electronic communications service provider in the prescribed manner: Provided, that if the trial 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 form or manner specified in that order.
Any person contemplated in subsection (2)(a) or (b) or electronic communications service provider contemplated in subsection (2)(c), that fails to comply with an order referred to in subsection (2) is guilty of an offence.
An electronic communications service provider that is ordered to remove or disable access to the data message may, within 14 days after the order has been served on it in terms of subsection (3), upon notice to the trial 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 (2)(c).
The trial court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (5) 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.
The trial court may, if good cause has been shown for the variation or setting aside of the order, issue an order to this effect.
The court may, for purposes of subsection (6)(a), 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.
Any person who is subpoenaed in terms of subsection (7) to attend proceedings and who fails to—
attend or to remain in attendance;
appear at the place and on the date and at the time to which the proceedings in question may be adjourned;
remain in attendance at those proceedings as so adjourned; or
produce any book, document or object specified in the subpoena, is guilty of an offence.
For purposes of this section ‘‘trial court’’ means—
a magi strate’s court established under section 2(1)(f)(i) of the Magistrates’ Courts Act, 1944;
a court for a regional division established under section 2(1)(g)(i) of the Magistrates’ Courts Act, 1944; or
a High Court referred to in section 6(1) of the Superior Courts Act, 2013.
Whenever a person is convicted of an offence in terms of section 14, 15 or 16, the trial court must issue an order that the person must reimburse all expenses reasonably incurred by—
a complainant as a result of any direction issued in terms of section 21(1)(b); or
an electronic communications service provider to remove or disable access to the data message in question, whereupon the provisions of section 300 of the Criminal Procedure Act, 1977, shall apply with the necessary changes required by the context, to such order.