preservation of evidence direction Archives

Section 43 | Oral application for preservation of evidence direction

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.
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.
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.
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).
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.
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 44 | Disclosure of data direction and search for, access to and seizure of articles subject to preservation

1. A police official may, where it is expedient, other than by way of a search and seizure in terms of a warrant contemplated in section 29(1), to obtain—
  1. data which is subject to preservation in terms of an expedited preservation of
    data direction or a preservation of evidence direction; or
  2. data as contemplated in paragraph (a) of the definition of ‘‘article’’, which is—
    1. held in a computer system or computer storage medium; or
    2. available to a computer system,
      apply to a magistrate or judge of the High Court for the issuing of a disclosure of data direction.
2. An application referred to in paragraph (a)(i) must—
  1. indicate the identity of the police official who applies for the disclosure of data
    direction;
  2. identify the person, electronic communications service provider or financial
    institution to whom the disclosure of data direction must be addressed;
  3. be accompanied by a copy of the expedited preservation of data direction or
    preservation of evidence direction or any amendment thereof;
  4. contain a description of the data which must be provided and the format in which it must be provided;
  5. specify the grounds for believing that the data is an article as contemplated in
    paragraph (a) of the definition of ‘‘article’’; and
  6. comply with any supplementary directives relating to applications for the
    disclosure of data, which may be issued by the Chief Justice in terms of section
    8(3) of the Superior Courts Act, 2013.
3. An application referred to in paragraph (a)(ii) must—
  1. indicate the identity of the policy official who applies for the disclosure of data
    direction;
  2. identify the person, electronic communications service provider or financial
    institution to whom the disclosure of data direction must be addressed;
  3. contain a description of the data which must be provided and the format in which it must be provided;
  4. specify the grounds for believing that the data is an article as contemplated in
    paragraph (a) of the definition of ‘‘article’’;
  5. specify the grounds for believing that the data, in question, is held in a computer system or computer data storage medium or is available to a computer system that is under the control of the person, electronic communications service provider or financial institution, referred to in subparagraph (ii), within the area of jurisdiction of the court; and
  6. comply with any supplementary directives relating to applications for the
    disclosure of data, which may be issued by the Chief Justice in terms of section
    8(3) of the Superior Courts Act, 2013.
A magistrate or judge of the High Court may, subject to the provisions of section
4(2) of the Customs and Excise Act, 1964, sections 69(2)(b) and 71 of the Tax
Administration Act, 2011, and section 21(e) and (f) of the Customs Control Act, 2014,
on the written application by a police official referred to in subsection (1), if it appears to the magistrate or judge from information on oath or by way of affirmation, as set out in the application that—
1. there are reasonable grounds for believing that—
  1. data which is subject to preservation in terms of an expedited
    preservation of data direction or a preservation of evidence direction, is
    an article as contemplated in paragraph (a) of the definition of ‘‘article’’; or
  2. data, which is an article as contemplated in paragraph (a) of the definition
    of ‘‘article’’, is—
    1. held in a computer system or computer data storage medium; or
    2. available to a computer system, within their area of jurisdiction; and
2. it will be in the interests of justice if a disclosure of data direction is issued, issue the disclosure of data direction applied for.
A disclosure 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.
The disclosure of data direction—
1. must direct the person, electronic communications service provider or financial institution to provide the data identified in the direction to the extent set out in the direction to an identified police official;
2. must specify the format in which the data identified in paragraph (a) must be provided;
3. must set out the period within which the data identified in paragraph (a) must be provided; and
4. may specify conditions or restrictions relating to the provision of data authorised therein.
A person, electronic communications service provider or financial institution on whom a disclosure of data direction referred to in subsection (3) is served may, in writing in the prescribed form and manner, apply to the magistrate or judge 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.
The magistrate or judge 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. if the application is successful, inform the police official and the applicant of the outcome of the application.
Any data made available in terms of a disclosure of data direction, must be—
1. provided to the police official identified in the direction; and
2. accompanied by an affidavit in the prescribed form by the person or authorised representative of an electronic communications service provider or financial institution, verifying the authenticity, integrity and reliability of the data that is furnished.
A person, electronic communications service provider or a financial institution who—
1. fails to comply with a disclosure of data direction;
2. makes a false statement in an application referred to in subsection (5); or
3. fails to comply with 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.
4. Any article subject to a preservation of evidence direction that is not ‘‘data’’ must be seized in terms of a warrant referred to in section 29(1).
5. A police official may, at any time, apply for a search warrant in terms of section 29(1) to search for, access or seize an article (which includes ‘‘data’’) that is or was subject to an expedited preservation of data direction or a preservation of evidence direction.

[Commencement date: To be proclaimed]

Section 59 | Regulations

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).