Tag: malicious communications

Section 33 | Search for, access to, or seizure of article on arrest of person

  1. A police official may without a warrant, as contemplated in section 40 of the Criminal Procedure Act, 1977, arrest any person—
    1. who commits any offence in terms of Part I or Part II of Chapter 2 in their presence;
    2. whom they reasonably suspect of having committed any offence in terms of Part I and Part II of Chapter 2; or
    3. who is concerned with or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that they have been concerned with 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 by the use of an article,
        in a foreign State, and for which they are, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic.
  2. On the arrest of a person contemplated in subsection (1) or in terms of section 40 or 43 of the Criminal Procedure Act, 1977, a police official may search for and perform 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’’, which is found in the possession of or in the custody or under the control of the person.
  3. A police official may only access or perform the powers referred to in paragraph (c) or (d) of the definition of ‘‘seize’’, in respect of a computer data storage medium or a computer system referred to in subsection (2), 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) and (d) of the definition of ‘‘seize’’ without a search warrant.
  4. An investigator authorised in writing by a police official may assist the police official to seize an article as contemplated subsections (2) and (3) and to access the article as contemplated in subsection (3).

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 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 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 46 | Application of provisions of Chapter


  1. The provisions of sections 48 to 51 apply in addition to Chapter 2 of the International Co-operation in Criminal Matters Act, 1996, and relate, unless specified otherwise, to the preservation of an article or other evidence in electronic format regarding the commission or suspected commission of—
    1. an offence in terms of 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,
        pending a request in terms of section 2 or 7 of the International Co-operation in Criminal Matters Act, 1996.

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.

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 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).