Tag: electronic communications

Section 1 | Definitions and interpretation

(1) In this Act, unless the context indicates otherwise—

‘‘article’’ means any —

(a) data,
(b) computer program,
(c) computer data storage medium,
(d) or computer system,

which—

(i) is concerned with, connected with or is, on reasonable grounds, believed to be concerned with or connected with the commission or suspected commission;

(ii) may afford evidence of the commission or suspected commission; or

(iii) is intended to be used or is, on reasonable grounds, believed to be intended to be used in the commission, of—

(aa) an offence in terms of Part I or Part II of Chapter 2: or

(bb) any other offence in terms of the law of the Republic; or

(cc) an offence in a foreign State that is substantially similar to an offence contemplated in Part I or Part II of Chapter 2 or another offence recognised in the Republic;

‘‘computer’’ means any electronic programmable device used, whether by itself or as part of a computer system or any other device or equipment, or any part thereof, to perform predetermined arithmetic, logical, routing, processing or storage operations in accordance with set instructions and includes any data, computer program or computer data storage medium that are related to, connected with or used with such a device;

‘‘computer data storage medium’’ means any device from which data or a computer program is capable of being reproduced or on which data or a computer program is capable of being stored, by a computer system, irrespective of whether the device is physically attached to or connected with a computer system;

‘‘computer program’’ means data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function;

‘‘computer system’’ means—

(a) one computer; or

(b) two or more inter-connected or related computers, which allow these inter-connected or related computers to—

(i) exchange data or any other function with each other; or

(ii) exchange data or any other function with another computer or a computer system;

‘‘Constitution’’ means the Constitution of the Republic of South Africa, 1996;

‘‘Criminal Procedure Act, 1977’’ means the Criminal Procedure Act, 1977 (Act No. 51 of 1977);

‘‘Customs and Excise Act, 1964’’ means the Customs and Excise Act, 1964 (Act No. 91 of 1964);

‘‘Customs Control Act, 2014’’ means the Customs Control Act, 2014 (Act No. 31 of 2014);

‘‘data’’ means electronic representations of information in any form;

‘‘data message’’ means data generated, sent, received or stored by electronic means, where any output of the data is in an intelligible form;

‘‘designated judge’’ means a designated judge as defined in section 1 of the Regulation of Interception of Communications and Provision of Communication related Information Act, 2002;

‘‘designated Point of Contact’’ means the office established or designated in terms of section 52;

‘‘Electronic Communications Act, 2005’’ means the Electronic Communications Act, 2005 (Act No. 36 of 2005);

‘‘electronic communications network’’ means an electronic communications network as defined in section 1 of the Electronic Communications Act, 2005, and includes a computer system;

‘‘electronic communications service’’ means any service which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services as defined in section 1 of the Electronic Communications Act, 2005;

‘‘electronic communications service provider’’ means—

(a) any person who provides an electronic communications service to the public, sections of the public, the State, or the subscribers to such service, under and in accordance with an electronic communications service licence issued to that person in terms of the Electronic Communications Act, 2005, or who is deemed to be licenced or exempted from being licenced as such in terms of that Act; and

(b) a person who has lawful authority to control the operation or use of a private electronic communications network used primarily for providing electronic communications services for the owner’s own use and which is exempted from being licensed in terms of the Electronic Communications Act, 2005;

‘‘financial institution’’ means a ‘financial institution’ as defined in section 1 of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017);

‘‘foreign State’’ means any State other than the Republic;

‘Intelligence Services Oversight Act, 1994’’ means the Intelligence Services Oversight Act, 1994 (Act No. 40 of 1994);

‘‘International Co-operation in Criminal Matters Act, 1996’’ means the International Co-operation in Criminal Matters Act, 1996 (Act No. 75 of 1996);

‘‘Justices of the Peace and Commissioners of Oaths Act, 1963’’ means the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963);

‘‘magistrate’’ includes a regional court magistrate;

‘‘Magistrates’ Courts Act, 1944’’ means the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944);

‘‘National Commissioner’’ means the National Commissioner of the South African Police Service, appointed by the President under section 207(1) of the Constitution;

‘‘National Director of Public Prosecutions’’ means the person contemplated in section 179(1)(a) of the Constitution of the Republic of South Africa, 1996 and appointed in terms of section 10 of the National Prosecuting Authority Act, 1998;

‘‘National Environmental Management Act, 1998’’ means the National Environmental Management Act, 1998 (Act No. 107 of 1998);

‘‘National Head of the Directorate’’ means a person appointed in terms of section 17CA(1) of the South African Police Service Act, 1995 (Act No. 68 of 1995);

‘‘National Prosecuting Authority Act, 1998’’ means the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

‘‘National Strategic Intelligence Act, 1994’’ means the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994);

‘‘output of a computer program’’ means any—

(a) data or output of the data;

(b) computer program; or

(c) instructions,

generated by a computer program;

‘‘output of data’’ means by having data displayed or in any other manner;

‘‘person’’ means a natural or a juristic person;

‘‘police official’’ means a member of the South African Police Service as defined in section 1 of the South African Police Service Act, 1995;

‘‘Prevention of Organised Crime Act, 1998’’ means the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998);

‘‘Protection from Harassment Act, 2011’’ means the Protection from Harassment Act, 2011 (Act No. 17 of 2011);

‘‘Protection of Personal Information Act, 2013’’ means the Protection of Personal Information Act, 2013 (Act No. 4 of 2013);

‘‘publicly available data’’ means data which is accessible in the public domain without restriction;

‘‘Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002’’ means the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (Act No. 70 of 2002);

‘‘responsible party’’ means a responsible party as defined in section 1 of the Protection of Personal Information Act, 2013;

‘‘South African Police Service Act, 1995’’ means the South African Police Service Act, 1995 (Act No. 68 of 1995);

‘‘South African Reserve Bank’’ means the South African Reserve Bank, referred to in section 223 of the Constitution, read with the South African Reserve Bank Act, 1989;

‘‘South African Reserve Bank Act, 1989’’ means the South African Reserve Bank Act, 1989 (Act No. 90 of 1989);

‘‘specifically designated police official’’ means a police official of the rank of captain or above referred to in section 33 of the South African Police Service Act, 1995, who has been designated in writing by the National Commissioner and the National Head of the Directorate, respectively, to—

(a) make oral applications for a search warrant or an amendment of a warrant contemplated in section 30;

(b) issue expedited preservation of data directions contemplated in section 41; or

(c) serve or execute an order of the designated judge as contemplated in section 48(10);

‘‘Superior Courts Act, 2013’’ means the Superior Courts Act, 2013 (Act No. 10 of
2013);

‘‘Tax Administration Act, 2011’’ means the Tax Administration Act, 2011 (Act No. 28 of 2011); and

‘‘traffic data’’ means data relating to a communication indicating the communication’s origin, destination, route, format, time, date, size, duration or type, of the underlying service.

(2) For the purposes of section 2, 3(2) or (3), or 7(1) or (2) of this Act, any failure by a responsible party to comply with—

(a) the conditions for lawful processing of personal information referred to in Chapter 3;

(b) section 72; or

(c) the provisions of a code of conduct issued in terms of section 60,

of the Protection of Personal Information Act, 2013, must be dealt with in terms of Chapter 10 of that Act.

Section 21 | Electronic communications service provider to furnish particulars to court

  1. If an application for a protection order is made in terms of section 20(1) and the court is satisfied in terms of section 20(3) that a protection order must be issued and the particulars of the person referred to in section 20(1)(a), who discloses the data message, or the electronic communications service provider referred to in section 20(1)(b), whose service is used to host or was or is used to disclose the data message, is not known, the court may—
    1. adjourn the proceedings to any time and date on the terms and conditions which the court deems appropriate; and
    2. issue a direction in the prescribed form, directing an electronic communications service provider, that is believed to be able to furnish such particulars, to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with—
      1. the electronic communications identity number from where the data message originated;
      2. the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned;
        1. the electronic communications identity number from where the data message originated;
        2. the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned;
        3. any information which indicates that the data message was or was not sent from the electronic communications identity number of the person to the electronic communications identity number of the applicant;
        4. any information that is available to an electronic communications service provider that may be of assistance to the court to identify the person referred to in section 20(1)(a) or the electronic communications service provider referred to in section 20(1)(b), which provides a service to that person;
        5. any information that is available to an electronic communications service provider which—
          1. confirms whether or not its electronic communications service is used to host or was or is used to disclose the data message in question; or
          2. may be of assistance to the court to identify the electronic communications service provider whose service is used to host or was or is used to disclose the data message in questions; or
        6. an assessment whether or not the electronic communications service provider is in a position to—
          1. remove the data message or a link to such data message; or
          2. disable access to the data message or a link to such data message.
  2. If the court issues a direction in terms of subsection (1)(b) the court must direct that the direction be served on the electronic communications service provider in the prescribed manner: Provided, that if the court is satisfied that the direction cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form or manner specified in that order.
    1. The information referred to in subsection (1)(b) must be provided to the court within five ordinary court days from the time that the direction is served on an electronic communications service provider.
    2. An electronic communications service provider on which a direction is served, may in the prescribed manner by means of an affidavit in the prescribed form apply to the court for—
      1. an extension of the period of five ordinary court days referred to in paragraph (a) for a further period of five ordinary court days on the grounds that the information cannot be provided timeously; or
      2. the requested information is not available in the records of the electronic communications service provider; or
      3. its service is not used to host or was or is not used to disclose the data message in question.
  4. After receipt of an application in terms of subsection (3)(b), the court—
    1. must consider the application;
    2. may, in the prescribed manner, request such additional evidence by way of affidavit from the electronic communications service provider as it deems fit;
    3. must give a decision in respect thereof; and
    4. must inform the electronic communications service provider in the prescribed form and manner of the outcome of the application.
    1. The court may, on receipt of an affidavit from an electronic communications service provider which contains the information referred to in subsection (1)(b), consider the issuing of a protection order in terms of section 20(3) against the person or electronic communications service provider on the date to which the proceedings have been adjourned.
    2. Any information furnished to the court in terms of subsection (1)(b) forms part of the evidence that a court may consider in terms of section 20(3).
  6. The Cabinet member responsible for the administration of justice may, by notice in the Gazette, prescribe reasonable tariffs of compensation payable to electronic communications service providers for providing the information referred to in subsection (1)(b).
  7. Any electronic communications service provider or employee of an electronic communications service provider who—
    1. fails to furnish the required information within five ordinary court days from the time that the direction is served on such electronic communications service provider to a court in terms of subsection (3)(a) or such extended period allowed by the court in terms of subsection (3)(b); or
    2. makes a false statement in an affidavit referred to in subsection (1)(b) or (3)(b) in a material respect,
      is guilty of an offence.
  8. For purposes of this section ‘‘electronic communications identity number’’ means a technical identification label which represents the origin or destination of electronic communications traffic.

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 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;
      2. possess relevant qualifications, expertise and experience which makes them competent to make the affidavit; and
      3. 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 59 | Regulations

  1. The Cabinet member responsible for the administration of justice—
    1. must make regulations to prescribe the—
      1. form and manner of the application as contemplated in section 20(1);
      2. form of the order as contemplated in section 20(3);
      3. manner of serving the order as contemplated in section 20(4);
      4. form and manner of the application as contemplated in section 20(6);
      5. form and manner in which the court may subpoena a person as contemplated in section 20(8);
      6. form of the direction and affidavit and manner to furnish information to a court as contemplated in section 21(1)(b);
      7. manner of serving a direction as contemplated in section 21(2);
      8. manner and the form of the affidavit to apply for an extension of the time period or cancellation of the direction as contemplated in section 21(3)(b);
      9. manner for requesting additional information as contemplated in section 21(4)(b);
      10. form and manner of informing an electronic communications service provider of the outcome of application as contemplated in section 21(4)(d);
      11. tariffs of compensation payable to an electronic communications service provider as contemplated in section 21(6);
      12. form of the order and manner of service of the order as contemplated in section 22(3);
      13. form and manner of the application as contemplated in section 22(5);
      14. form and manner in which the court may subpoena a person as contemplated in section 22(7);
      15. the form of the expedited preservation of data direction and manner of service as contemplated in section 41(3);
      16. form and manner for the making of an application as contemplated in section 41(7);
      17. form of the preservation of evidence direction and manner of service as contemplated in section 42(2);
      18. form and manner of an application to set aside a preservation of evidence direction as contemplated in section 42(5);
      19. form of the disclosure of data direction and manner of service as contemplated in section 44(3);
      20. form and manner of an application for the amendment or setting aside of a disclosure of data direction as contemplated in section 44(5);
      21. form of the affidavit as contemplated in section 44(7)(b);
      22. manner in which traffic data must be provided to the designated Point of Contact as contemplated in section 50(2);
      23. form of the affidavit as contemplated in section 50(2)(b)(ii); and
      24. form of the direction as contemplated in section 51(1); and
    2. may make regulations which are not inconsistent with this Act or any other law to prescribe any matter which in terms of this Act may be prescribed or which may be necessary or expedient to prescribe in order to achieve or promote the objects of this Act.
    1. The Cabinet member responsible for policing must make regulations in terms of section 54(2), prescribing the—
      1. category or class of offences which must be reported to the South African Police Service in terms of section 54(2)(a); and
      2. form and manner in which an electronic communications service provider or financial institution must report offences to the South African Police Service as contemplated in section 54(2)(b).
    2. The Cabinet member responsible for policing may make regulations to further regulate aspects contemplated in section 52(4) and 55(2).