President Cyril Ramaphosa has signed the Cybercrimes Bill into law, with parts of the bill taking effect from 1 December 2021.
The proclamation comes after Ramaphosa signed the Cybercrimes Act into law at the start of June.
The Cybercrimes Act defines three types of harmful messages that have been criminalised in South Africa. They are messages which:
- Incite damage to property or violence.
- Threaten people with damage to property or violence.
- Unlawfully contain an intimate image.
In addition to criminalising certain harmful messages, the Act also includes definitions for cyber fraud, forgery, extortion, and theft of incorporeal property.
The partial commencement of the Cybercrimes Act ushers in a new era of criminalising the ever-increasing and devastating incidences of digital crime, says legal firm Webber Wentzel.
“While we are excited about this new development, we will eagerly await the commencement of the remainder of the Cybercrimes Act to give a full set of teeth to this law.”
Below the firm included some of the key sections of the Cybercrimes Act that have become effective and those that have not.
|Legal changes||Commence on 1 December 2021||Not yet commenced|
|Types of cybercrime and malicious communications, including the sentencing of these offences.||✓|
|A person that complains of being subjected to malicious communication* is able to apply for a protection order.
A protection order stops the wrongdoer from further disclosure or requires an electronic communications service provider to take down the communication.
* e.g., publishing an intimate image of a person on social media without his or her permission.
|Jurisdiction of the courts, including over offences committed outside South Africa that have a local effect.||✓|
|Powers of the South African Police Service (SAPS) and investigators to investigate, search, access and seize articles used in cybercrime or malicious communication.||✓|
|Parts of the Cybercrimes Act dealing with certain requirements for preserving evidence of cybercrime or malicious communication.||X|
|Creation of a special office within the SAPS to assist with proceedings or investigations into cybercrime.||X|
|Reporting obligations of electronic communications service providers and financial institutions.||X|
|Power of the Cabinet member responsible for administering justice to make regulations.||✓|
Commenting on the new legislation, justice minister Ronald Lamola said the Act streamlines the laws which deal with cybercrime into a single law that criminalises conduct considered to be cybercrimes.
The Act also criminalises the disclosure of data messages which are harmful and provides for protection orders to protect victims against harm. The Act also regulates the powers to investigate cybercrimes.
Lamola said the new regulations also impose obligations on electronic communications service providers and financial institutions to report cybercrimes to the SAPS and provide for capacity building by the SAPS to detect, prevent and investigate cybercrime.
“The sections which are being put into operation on 1 December aim to ensure that the SAPS is adequately capacitated and trained to deal with cybercrimes; that verifiable statistics of the extent of cybercrime in South Africa is available; the effectiveness and capacity of the SAPS to investigate cybercrimes can be evaluated, and the capacity of the NPA to prosecute cybercrimes can be evaluated,” he said.
Lamola said that certain sections of the Act could not yet be put into operation as they require regulations that are still to be finalised.
“These sections include, amongst others, those relating to protection orders against the harmful disclosure of pornography and the establishment of a functional Point of Contact within the SAPS to coordinate cybercrime investigations within the Republic and to facilitate international cooperation.”
“The remaining sections will be put into operation in due course, once the concomitant regulations have been finalised.”
Additional commentary by Peter Grealy, Nozipho Mngomezulu, Karl Blom, Wendy Tembedza, Cindy Leibowitz of legal firm Webber Wentzel.