Tag: cybercrimes

Section 36 | Powers conferred upon police official or investigator to be conducted in decent and orderly manner with due regard to rights of other persons

  1. The powers conferred upon a police official or an investigator in terms of section 29(2), 31, 32 or 33, must be conducted—
    1. with strict regard to decency and order; and
    2. with due regard to the rights, responsibilities and legitimate interests of other
      persons in proportion to the severity of the offence.
  2. If a female needs to be searched physically in terms of section 29(2)(a), (c) or (d),
    32 or 33, such search must be carried out by a police official who is also a female:
    Provided that if no female police official is available, the search must be carried out by any female designated for that purpose by a police official.

Section 37 | Wrongful search, access or seizure and restriction on use of instrument, device, password or decryption key or information to gain access

  1. A police official or an investigator who unlawfully and intentionally—
    1. acts contrary to the authority of—
      1. a search warrant issued under section 29(1); or
      2. consent granted in terms of section 31(1); or
    2. without being authorised thereto under this Chapter or the provision of any other law which affords similar powers to a police official or an investigator—
      1. searches for, accesses or seizes data, a computer program, a computer data storage medium or any part of a computer system; or
      2. obtains or uses any instrument, device, password, decryption key or other information that is necessary to access data, a computer program, a computer data storage medium or any part of a computer system,
        is guilty of an offence.
    1. A police official or an investigator who obtains or uses any instrument, device, equipment, password, decryption key, data or other information contemplated in section 29(2)(h)
      1. must use the instrument, device, equipment, password, decryption key, data or information only in respect of and to the extent specified in the warrant to gain access to or use data, a computer program, a computer data storage medium or any part of a computer system in the manner and for the purposes specified in the search warrant concerned; and
      2. must destroy all passwords, decryption keys, data or other information if—
        1. it is not required by a person who may lawfully possess the passwords, decryption keys, data or other information;
        2. it will not be required for purposes of any criminal proceedings or civil proceedings contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, 1998, or for purposes of evidence or for purposes of an order of court; or
        3. no criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, 1998, are to be instituted in connection with such information.
    2. A police official or an investigator who unlawfully and intentionally—
      1. uses an instrument, device, equipment, password, decryption key, data or information outside the authorisation of a warrant as contemplated in paragraph (a)(i); or
      2. fails to destroy all passwords, decryption keys, data or other information as contemplated in paragraph (a)(ii),
        is guilty of an offence.
    3. A police official or an investigator who contravenes or fails to comply with subsection (1) or (2), is liable on conviction to a fine or imprisonment for a period not exceeding 2 years or to both a fine and such imprisonment.
    4. Where a police official or an investigator is convicted of an offence referred to in subsection (1) or (2), the court convicting such a person may, upon application of any person who has suffered damage or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 of the Criminal Procedure Act, 1977, shall apply with the necessary changes required by the context to such award.

Section 38 | False information under oath or by way of affirmation

  1. Any person who unlawfully or intentionally gives false information under oath or by way of affirmation knowing it to be false or not knowing it to be true, with the result that—
    1. a search warrant is issued;
    2. a search contemplated in section 31 took place on the basis of such information;
    3. a person, container, premises, vehicle, facility, ship or aircraft is searched or a computer data storage medium or any part of a computer system is seized or accessed in terms of section 32;
    4. an expedited preservation of data direction contemplated in section 41 is issued;
      [Commencement date: To be proclaimed]
    5. a preservation of evidence direction contemplated in section 42 is issued; or
      [Commencement date: To be proclaimed]
    6. a disclosure of data direction contemplated in section 44 is issued,
      [Commencement date: To be proclaimed]
      is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both such fine and imprisonment.
  2. Where a person is convicted of an offence referred to in subsection (1), the court convicting such a person may, upon application of any person who has suffered damage or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 of the Criminal Procedure Act, 1977, shall apply with the necessary changes required by the context to such award.

Section 39 | Prohibition on disclosure of information

  1. No person, investigator, police official, electronic communications service provider, financial institution or an employee of an electronic communications service provider or financial institution may, subject to subsection (2), disclose any information which they have obtained in the exercise of their powers or the performance of their duties in terms of Chapters 4 or 5 of this Act, except—
    1. to any other person who of necessity requires it for the performance of their functions in terms of this Act;
    2. if they are a person who of necessity supplies such information in the performance of their duties or functions in terms of this Act;
    3. if it is information which is required in terms of any law or as evidence in any court of law;
    4. if it constitutes information-sharing between electronic communications service providers, financial institutions, the South African Police Service, competent authorities or any other person or entity which is aimed at preventing, detecting, investigating or mitigating cybercrime: Provided that such information-sharing may not prejudice any criminal investigation or criminal proceedings; or
    5. to any competent authority in a foreign State which requires it for the prevention, detection, or mitigation of cybercrime, or the institution of criminal proceedings or an investigation with a view to institute criminal proceedings.
  2. The prohibition on disclosure of information contemplated in subsection (1) does not apply where the disclosure—
    1. is authorised in terms of this Act or any other Act of Parliament; or
    2. reveals a criminal activity.
  3. A person, investigator, police official, electronic communications service provider, financial institution or an employee of an electronic communications service provider or financial institution who unlawfully and intentionally contravenes 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 three years or to both a fine and such imprisonment.

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 41 | Expedited preservation of data direction

  1. A specifically designated police official may—
    1. if they believe on reasonable grounds that any person, an electronic communications service provider referred to in section 40(3), or a financial institution is—
      1. in possession of;
      2. to receive; or
      3. in control of,
        data as contemplated in paragraph (a) of the definition of ‘‘article’’; and
    2. with due regard to the rights, responsibilities and legitimate interests of other persons in proportion to the severity of the offence in question,
      issue an expedited preservation of data direction to such a person, electronic communications service provider or financial institution.
  2. Subsection (1) also applies to—
    1. archived communication-related information which an electronic communications service provider is no longer required to store due to the fact that the period contemplated in section 30(2)(a)(iii) of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, is due to come to an end; or
    2. any other data which—
      1. must be stored for a certain period in terms of any other law and that period is due to come to an end; or
      2. is stored by an electronic communications service provider which is not real-time communication-related information or archived communication-related information as contemplated in section 1, read with section 30(2) and any directive issued in terms of that section, of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002.
  3. An expedited preservation of data direction must be in the prescribed form and must be served on the person, electronic communications service provider or financial institution affected thereby, in the prescribed manner by a police official.
  4. An expedited preservation of data direction must direct the person, electronic communications service provider or financial institution affected thereby, from the time of service of the direction, and for a period of 21 days—
    1. to preserve the current status of;
    2. not to deal in any manner with; or
    3. to deal in a certain manner with,
      the data referred to in the direction in order to preserve the availability and integrity of the data.
  5. No data may be disclosed to a police official on the strength of an expedited preservation of data direction, unless it is authorised in terms of section 44.
  6. The 21 day period referred to in subsection (4), may only be extended by way of a preservation of evidence direction contemplated in section 42, once, for an additional period which may not exceed 90 days.
  7. A person, electronic communications service provider or financial institution to whom an expedited preservation of data direction, referred to in subsection (1), is addressed may, in writing in the prescribed form and manner, apply to a magistrate in whose area of jurisdiction the person, electronic communications service provider or financial institution is situated, for an amendment or the cancellation of the direction concerned on the ground that they cannot timeously or in a reasonable fashion, comply with the direction.
  8. The magistrate to whom an application is made in terms of subsection (7) 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. inform the applicant and specifically designated police official referred to in subsection (1) of the outcome of the application.
  9. A person, electronic communications service provider or financial institution referred to in subsection (1) who—
    1. fails to comply with an expedited preservation of data direction or contravenes the provisions of subsection (5); or
    2. makes a false statement in an application referred to in subsection (7),
      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.

[Commencement date: To be proclaimed]

Section 42 | Preservation of evidence direction

  1. A magistrate or judge of the High Court, may—
    1. upon written application by a police official;
    2. if it appears to the magistrate or judge upon consideration of the information provided under oath or by way of affirmation, as set out in the application, that
      there are reasonable grounds to believe that any person, electronic communications service provider or financial institution—
      1. may receive;
      2. is in possession of; or
      3. is in control of,
        an article; and
    3. with due regard to the rights, responsibilities and legitimate interests of other
      persons in proportion to the severity of the offence in question,
      issue a preservation of evidence direction.
  2. A preservation of evidence direction must be in the prescribed form and must be
    served on the person, electronic communications service provider or financial institution affected thereby, in the prescribed manner by a police official.
  3. The preservation of evidence direction must direct the person, electronic
    communications service provider or financial institution, from the time of service of the direction, and for the time period specified in the direction, which may not exceed 90 days—
    1. to preserve the current status of;
    2. not to deal in any manner with; or
    3. to deal in a certain manner with,
      an article in order to preserve the availability or integrity of the article.
  4. Any person, electronic communications service provider or financial institution
    who fails to comply with a preservation of evidence direction is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both a fine and such imprisonment.
  5. A person, electronic communications service provider or financial institution to
    whom a preservation of evidence direction referred to in subsection (1) is addressed
    may, in writing in the prescribed form and manner, apply to a magistrate or judge of the High Court in whose area of jurisdiction the person, electronic communications service provider or financial institution is situated for an amendment or the cancellation of the direction concerned on the ground that they cannot timeously or in a reasonable fashion, comply with the direction.
  6. The magistrate or judge of the High Court to whom an application is made in terms
    of subsection (5) 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. inform the applicant and police official of the outcome of the application.

[Commencement date: To be proclaimed]

Section 43 | Oral application for preservation of evidence direction

  1. A police official may orally make an application referred to in section 42(1), if
    they are of the opinion that 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 receipt of an oral application
    made to them in terms of subsection (1), issue the preservation of evidence direction
    applied for.
  4. A preservation of evidence direction 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 preservation of evidence
        direction applied for could be issued;
      2. a preservation of evidence direction is necessary immediately in order to
        ensure the availability or integrity, of the article; 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 the preservation of evidence direction applied for;
        and
    2. 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 preservation of evidence direction under
      subsection (3).
  5. A preservation of evidence direction issued under subsection (3) must be in
    writing and must be transmitted electronically to the police official or be provided to a specifically designated police official.
  6. A magistrate or judge of the High Court who issued a direction under subsection (3) or, if they are not available, 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 preservation of evidence direction.

[Commencement date: To be proclaimed]

Section 45 | Obtaining and using publicly available data or receiving data from person who is in possession of data

  1. A police official may, without being specifically authorised thereto in terms of this Chapter, for the purposes of investigating any offence or suspected offence in terms of Part I or Part II of Chapter 2 or any other offence or suspected offence in terms of the laws of the Republic, which may be committed by means of, or facilitated through the use of, an article—
    1. receive, obtain or use publicly available data regardless of where the data is located geographically; or
    2. receive and use non-publicly available data, regardless of where the data is located geographically, if a person who is in control of, or possesses the data, voluntarily and on such conditions regarding confidentiality and limitation of use which they deem necessary, discloses the data to a police official.

Section 47 | Spontaneous information

  1. The National Commissioner or the National Head of the Directorate, may, on such conditions regarding confidentiality and limitation of use as they may determine, furnish any information obtained during any investigation, to a law enforcement agency of a foreign State when the National Commissioner or the National Head of the Directorate is of the opinion that the disclosure of such information may—
    1. assist the foreign State in the initiation or carrying out of investigations; or
    2. lead to further cooperation with a foreign State to carry out an investigation, regarding the commission or suspected commission of—
      1. an offence contemplated in Part I or Part II of Chapter 2, in the Republic;
      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 that foreign State.
  2. The South African Police Service may receive any information from a foreign State, subject to such conditions regarding confidentiality and limitation of use as may be agreed upon, which may—
    1. assist the South African Police Service in the initiation or carrying out of investigations; or
    2. lead to further cooperation with a foreign State to carry out an investigation, regarding the commission or suspected commission of—
      1. an offence contemplated in Part I or Part II of Chapter 2, in the Republic;
      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 that foreign State.