Tag: cybercrimes

Section 48 | Foreign requests for assistance and cooperation

  1. A request by an authority, court or tribunal exercising jurisdiction in a foreign State for the—
    1. preservation of data or other article;
    2. seizure of data or other article;
    3. expedited disclosure of traffic data;
    4. obtaining of real-time communication-related information or archived communication-related information; or
    5. interception of indirect communications,
      must, subject to subsection (9), be submitted to the designated Point of Contact.
  2. The designated Point of Contact must submit the request to the National Director of Public Prosecutions for consideration.
    1. Upon receipt of a request referred to in subsection (2), the National Director of Public Prosecutions must satisfy himself or herself that—
      1. proceedings have been instituted in a court or tribunal exercising jurisdiction in the requesting foreign State; or
      2. there are reasonable grounds for believing that an offence has been committed in the requesting foreign State or that it is necessary to determine whether an offence has been so committed and that an investigation in respect thereof is being conducted in the requesting foreign State; and
      3. the offence in question is—
        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; and
      4. the foreign State intends to submit a request in terms of section 7 of the International Co-operation in Criminal Matters Act, 1996, for obtaining the data, information, a communication or an article in the Republic for use in such proceedings or investigation in the foreign State.
    2. For purposes of paragraph (a), the National Director of Public Prosecutions may rely on a certificate purported to be issued by a competent authority in the foreign State concerned, stating the facts contemplated in subsection (3)(a).
    1. The National Director of Public Prosecutions must submit the request for assistance, together with their recommendations, to the Cabinet member responsible for the administration of justice, for the Cabinet member’s approval.
    2. Upon being notified of the Cabinet member’s approval the National Director of Public Prosecutions must forward the request contemplated in subsection (1) to the designated judge for consideration.
  5. Where the request relates to the expedited disclosure of traffic data, subsections (3)(a)(iv) and (4) do not apply, and the National Director of Public Prosecutions must submit the request for assistance, together with their recommendations, to the designated judge.
  6. Subject to subsections (7) and (8), the designated judge may on receipt of a request referred to in subsection (4) or (5), issue any order they deem appropriate to ensure that the requested—
    1. data or other article is preserved in accordance with section 42;
    2. data or other article is seized on an expedited basis in accordance with section 29 and preserved;
    3. traffic data is disclosed on an expedited basis in terms of a disclosure of data direction in accordance with section 44;
    4. real-time communication-related information or archived communication related information, is obtained and preserved; or
    5. indirect communications are intercepted and preserved,
      as is specified in the request.
  7. The designated judge may only issue an order contemplated in subsection (6), if—
    1. on the facts alleged in the request, there are reasonable grounds to believe that—
      1. an offence substantially similar to the offences contemplated in Part I or Part II of Chapter 2 has been, is being, or will probably be committed; or
      2. any other offence substantially similar to an offence recognised in the Republic, has been, is being, or will probably be committed by means of, or facilitated through the use of, an article; and
      3. for purposes of the investigation it is necessary, in the interests of justice, to give an order contemplated in subsection (6);
    2. the request clearly identifies—
      1. the person, electronic communications service provider or financial institution—
        1. who or which will receive, is in possession of, or is in control of, the data or other article that must be preserved; or
        2. from whose facilities the data, real-time communication-related information, archived communication-related information, indirect communications or traffic data must be obtained or intercepted;
      2. the data or other article which must be preserved;
      3. the data or other article which must be seized on an expedited basis and be preserved;
      4. the traffic data which must be disclosed on an expedited basis;
      5. the real-time communication-related information or archived communication-related information, which is to be obtained; or
      6. the indirect communications, which are to be intercepted;
    3. the request is, where applicable, in accordance with—
      1. any treaty, convention or other agreement to which that foreign State and the Republic are parties or which can be used as a basis for mutual assistance; or
      2. any agreement with any foreign State entered into in terms of section 57; and
    4. the order contemplated in subsection (6) is in accordance with any applicable law of the Republic.
  8. The designated judge may, where a request relates to the expedited disclosure of traffic data—
    1. specify conditions or restrictions relating to the disclosure of traffic data as they deem appropriate; or
    2. refuse to issue an order referred to in subsection (6)(c), if the disclosure of the traffic data may prejudice the sovereignty, security, public safety or other essential interests of the Republic.
    1. In the case of urgency, a request by any authority, court or tribunal exercising jurisdiction in a foreign State referred to in subsection (1), may be submitted directly to the designated judge.
    2. Upon receipt of a request in terms of paragraph (a), the designated judge may issue any order referred to in subsection (6).
    1. A specifically designated police official must serve or execute an order contemplated in subsection (6).
    2. The specifically designated police official referred to in paragraph (a), must inform—
      1. the designated judge; and
      2. the National Director of Public Prosecutions,
        in writing, of the fact that an order has been served or executed.
  11. The National Director of Public Prosecutions must, in writing, inform the
  12. applicable authority in a foreign State of the fact that an order was issued and executed or not issued.

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.

Section 52 | Establishment and functions of designated point of contact

  1. The National Commissioner must—
    1. establish or designate an office within existing structures of the South African Police Service to be known as the designated Point of Contact for the Republic; and
    2. equip, operate and maintain the designated Point of Contact.
  2. The National Commissioner exercises final responsibility over the administration and functioning of the designated Point of Contact.
    1. The designated Point of Contact must ensure the provision of immediate assistance for the purpose of proceedings or investigations regarding the commission or intended commission of—
      1. an offence under Part I or Part II of Chapter 2;
      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 a foreign State.
    2. The assistance contemplated in subsection (3)(a), includes—
      1. the provision of technical advice and assistance;
      2. the facilitation or provision of assistance regarding anything which is authorised under Chapters 4 and 5;
      3. the provision of legal assistance;
      4. the identification and location of an article;
      5. the identification and location of a suspect; and
      6. cooperation with appropriate authorities of a foreign State.
  4. The Cabinet member responsible for policing may make regulations to further—
    1. regulate any aspect provided for in subsection (3);
    2. impose additional duties on the designated Point of Contact; and
    3. regulate any aspect which is necessary or expedient for the proper implementation of this section.
  5. The National Director of Public Prosecutions must make available members of the National Prosecuting Authority—
    1. who have particular knowledge and skills in respect of any aspect dealt with in this Act; and
    2. to whom a security clearance has been issued by the State Security Agency in terms of section 2A of the National Strategic Intelligence Act, 1994, to the satisfaction of the National Director of Public Prosecutions,
      to provide legal assistance to the designated Point of Contact as may be necessary or expedient for the effective operation of the designated Point of Contact.
    1. The Cabinet member responsible for policing must, at the end of each financial year, submit a report to the Chairperson of the Joint Standing Committee on Intelligence established by section 2 of the Intelligence Services Oversight Act, 1994, on the functions and activities of the designated Point of Contact.
    2. The report contemplated in paragraph (a) must include—
      1. the number of matters in which assistance was provided in terms of subsection (3)(a); and
      2. the number of matters in which assistance was received from a foreign State.

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 55 | Capacity detect, prevent and investigate cybercrimes

  1. The Cabinet member responsible for policing must—
    1. establish and maintain sufficient human and operational capacity to detect, prevent and investigate cybercrimes;
    2. ensure that members of the South African Police Service receive basic training in aspects relating to the detection, prevention and investigation of cybercrimes; and
    3. in co-operation with any institution of higher learning, in the Republic or elsewhere, develop and implement accredited training programmes for members of the South African Police Service primarily involved with the detection, prevention and investigation of cybercrimes.
  2. The Cabinet member responsible for policing may make regulations to further regulate any aspect referred to in subsection (1).
  3. The Cabinet member responsible for policing must, at the end of each financial year, submit a report to Parliament regarding—
    1. progress made with the implementation of this section;
    2. the number of—
      1. offences provided for in Part I or Part II of Chapter 2, which were reported to the South African Police Service;
      2. cases which were, in terms of subparagraph (i), reported to the South African Police Service which resulted in criminal prosecutions; and
      3. cases where no criminal prosecutions were instituted after a period of 18 months after a case was, in terms of subparagraph (i), reported to the South African Police Service; and
    3. the number of members of the South African Police Service who received training as contemplated in subsection (1)(b) and (c).

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.

Section 57 National Executive may enter into agreements

  1. The National Executive may enter into any agreement with any foreign State regarding—

a) the provision of mutual assistance and cooperation relating to the investigation and prosecution of—

i) an offence under Part I or Part II of Chapter 2;

ii) 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

iii) an offence—

aa) similar to those contemplated in Part I or Part II of Chapter 2;

bb) 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;

b) the implementation of cybercrime response activities;

c) training, research, information and technology-sharing and the exchange of information on the detection, prevention, mitigation and investigation of cybercrimes;

d) the establishment or designation of points of contact to facilitate the provision of mutual assistance and cooperation as contemplated in paragraph (a);

e) the implementation of emergency cross-border response mechanisms to mitigate the effect of cybercrimes; and

f) the reciprocal implementation of measures to curb cybercrime.

(2) A member of the National Executive must, as soon as practicable after Parliament has agreed to the ratification of, accession to, amendment of, or revocation of, an agreement referred to in subsection (1), give notice thereof in the Gazette.