Updated: Sep 7, 2020
1 July 2020 marks the passing of South Africa’s Cybercrimes Bill (B6B-2017) (“the Bill") by the National Council of Provinces (with the NCOP’s proposed amendments) - this comes after the Select Committee on Security and Justice adopted the Bill on 11 June 2020. The Bill will now be sent back to the National Assembly for concurrence, before it is finally sent to the President of the Republic of South Africa, Cyril Ramaphosa, for assent.
The Bill, at a glance, will deal with offences relating to cybercrimes, jurisdiction of courts, powers of investigation, search, seizure, access, evidence gathering, the establishment of a designated point of contact, reporting obligations and penalties. New offences created will include: cyber fraud, cyber forgery and uttering, cyber extortion and various other offences relating to unlawful access, interceptions, interferences, acquisitions, possession, and malicious communications. It is worth noting some online messages will fall within the ambit of the Bill. These include: messages which incite damage to property or violence; messages which threaten persons with damage to property or violence; and messages which unlawfully contain an intimate image.
The Bill, when it comes into effect, will mark a significant step forward for cybersecurity and cybercrime in South Africa and its reach into Africa. Unique features of the Bill, now allay earlier criticisms and relate to:
South Africa, commendably, being the first country to effect gender neutral language in legislation.
The Bill further imposes obligations on electronic communications service providers and financial institutions to assist in the investigation of and reporting of cybercrimes and makes provision for mutual assistance between South Africa and other countries (cross-border investigations).
In Africa, there is no continental treaty for the carrying out of extradition or mutual assistance requests between Member States in the African Union (there are regional instruments in certain Regional Economic Communities, such as the ECOWAS Convention on Mutual Assistance in Criminal Matters and the SADC Protocol on Mutual Legal Assistance in Criminal Matters). Importantly, Chapter 5 of the Bill is dedicated to mutual legal assistance, and provides for the provision of spontaneous information, handling of requests for assistance and co-operation by foreign states.
The Executive is empowered to enter into agreements with foreign States to address cybercrime.
The impact of the Bill is that Section 58 of the Bill will repeal and amend various provisions across numerous laws in South Africa, including the Electronic Communications and Transactions Act, No 25 of 2002, the Criminal Procedure Act, 1977, the Regulation of Interception of Communications and Provision of Communication related Information Act, 2002 and the Films and Publications Act, 1996.
Reporting and preservation of evidence requirements will be the most significant impacts for
organisations along with requirements to comply with lawful and authorised investigations,
searches and seizures by the South African Police Service or an authorised investigator.
Concerns still exist relating to the capacity of the South African Police Service and whether they will be an effective law enforcement agency. Cybercrime requires a more profound skills set to prevent and investigate cybercrime. With the Protection of Personal Information Act 2013 having come into effect, and this Bill on its way, private sector institutions and governmental agencies will still have to work together to strengthen their fight against cybercrime.