You will get into trouble for sending these messages in South Africa – and could have your devices seized

The Department of Police has gazetted its draft search and seizure rules for cybercrimes committed in South Africa.

The gazette, which is currently open for public comment, falls under the Cybercrimes Act which was partly introduced by president Cyril Ramaphosa at the end of 2021.

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.

Following its promulgation, the Department of Police was given a period of 12 months to formulate its own standard operating protocols around the investigation, search, access or seizure of items used for cybercrime.

“The Cybercrimes Act provides a new legal mechanism for addressing cybercrime in South Africa, as well as creating a range of new cybercrime offences,” the department said.

“It also provides for mechanisms to preserve electronic evidence1 in the cyber domain, to conduct search, access and seizure operations in respect of an article as defined in the CCA and the gathering of data connected to both cyber and other crimes that are committed by means of or facilitated through the use of an article.”

The Act allows the SAPS to seize any pertinent ‘articles’ related to cybercrime, including:

  • Data;
  • A computer program;
  • A computer data storage medium;
  • Computer systems (including laptops and phones).

“Members of the SAPS, other law enforcement officials, prosecutors and members of the judiciary may become involved in the collection, analysis or decisions related to articles at some stage of a criminal investigation or court proceedings,” the department said.

“The basic principle to be followed for all digital forensic activities is to ensure the integrity, reliability, authenticity and eventual admissibility of evidence in a court of law, of processes and procedures relating to the data and computer programs held on computer systems and computer data storage mediums.”

Since the ultimate goal is to use evidence to prove or disprove disputed facts, articles must be obtained and handled in compliance with existing South African legislation and best practice to ensure that the integrity of the evidence is maintained, that it is reliable and would be admissible in a court of law, the department said.

The draft rules also noted that an individual’s right to privacy, as well as other fundamental rights, must always be respected, and any infringement of these rights may only be justified in terms of the law.

“The right to a fair trial is paramount, and the responsibility of the investigation and prosecution team in terms of gathering, preserving and presenting evidence to a court fairly and objectively, remain of utmost importance.”

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You will get into trouble for sending these messages in South Africa – and could have your devices seized