Tag: cybercrimes

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:—

 

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.
4. 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).

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).

1. An electronic communications service provider, financial institution or person,
   other than the person who is suspected of having committed the offence which is being investigated, who is in control of any container, premises, vehicle, facility, ship, aircraft, data, computer program, computer data storage medium or computer system that is subject to a search authorised in terms of section 29(1) must, if required, provide—
   1. technical assistance; and
   2. such other assistance as may be reasonably necessary,
      to a police official or investigator in order to search for, access or seize an article.
2. An electronic communications service provider, financial institution or person who fails to comply with the provisions of subsection (1) 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.

1. Any person who unlawfully and intentionally obstructs or hinders a police
   official or an investigator in the exercise of their powers or the performance of their
   duties or functions in terms of this Chapter or who refuses or fails to comply with a
   search warrant issued in terms of section 29(1), 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 afine and such imprisonment.
2. 1. A police official who may lawfully execute any power conferred upon them in terms of section 29(2), may use such force as may be—
      1. reasonably necessary; and
      2. proportional to all the circumstances,
         relating to the execution of such powers.
   2. No police official may enter upon or search any premises, vehicle, facility, ship or aircraft unless they have audibly demanded admission to the premises, vehicle, facility, ship or aircraft and have notified the purpose of their entry.
   3. The provisions of paragraph (b) do not apply where the police official is, on reasonable grounds, of the opinion that an article which is the subject of the search may be destroyed, disposed of or tampered with if the provisions of paragraph (b) are complied with.