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Cyber Security Under the Spotlight

March 16, 2021

Department of Justice and Constitutional Development

The new Cybercrimes Act, once assented to, will rationalize the laws of South Africa that deal with cybercrime into a single law.

The deputy minister of justice and constitutional development, John Jeffery, pointed this out during an address in the national assembly on cyber security.

The deputy minister added that the proposed law will criminalize conduct considered to be cybercrime and the distribution of harmful data messages.

It will also provide for protection orders to protect victims against harm and “impose obligations on electronic communications service providers and financial institutions to report cybercrimes to the SAPS and provides for capacity building by the SAPS to detect, prevent and investigate cybercrimes”.

Parliament passed the Cybercrimes Bill and sent it to president Ramaphosa for assent in December 2020.

In July 2020, the national council of provinces (NCOP) passed the bill and returned it to the national assembly (NA) for consideration of proposed amendments.

The NA passed the bill and sent it to the NCOP for concurrence in November 2018.

The bill lapsed at the end of the 5th parliament but was revived by the NCOP in October 2019.

The Cybercrimes Bill aims to:

• create offences which have a bearing on cybercrime;
• criminalise the distribution of data messages which are harmful and to provide for interim protection orders;
• further regulate jurisdiction in respect of cybercrimes;
• further regulate the powers to investigate cybercrimes;
• further regulate aspects relating to mutual assistance in respect of the investigation of cybercrime;
• provide for the establishment of a designated Point of Contact;
• further provide for the proof of certain facts by affidavit;
• impose obligations to report cybercrimes;
• provide for capacity building;
• provide that the Executive may enter into agreements with foreign States to promote measures aimed at the detection, prevention, mitigation and investigation of cybercrimes;
• delete and amend provisions of certain laws; and
• provide for matters connected therewith.

The bill was originally tabled as the Cybercrimes and Cybersecurity Bill in 2017.

During its deliberations, the portfolio committee on justice and correctional services decided to only focus on cybercrimes issues, hence the change of the bill’s name to Cybercrimes Bill.

According to the select committee on security and justice’s report in July, proposed amendments included altering the tone of the bill to reflect non-binary language as required by considerations of gender-neutrality, equality, dignity and identity; restructuring of clause 16 to specifically reflect the impact of the paragraph (a) considerations in criminalising the disclosure of data messages of intimate images and on recommending the amendment of clauses 1, 2, 3, 11, 13, 20, 21, 22, 24, 32, 33, 39, 40, 41, 42, 44 and 59.

The portfolio committee on justice and correctional services adopted the proposed amendments.

The deputy minister also highlighted that the new act will provide for expanded jurisdiction in respect of offences so as to cater for the transnational dimension of cybercrime.

“The procedures to investigate cybercrimes and the extensive mutual assistance mechanism in the legislation are also applicable to terrorism and terrorism-related investigations”, he said.

According to the deputy minister, the Cybersecurity Hub has been set up within the communications and digital technologies department.

“The Hub works closely with SABRIC and various electronic communications service providers on initiatives to make information regarding threats in cyberspace available to the public as well as to educate the public on measures that can be taken to protect themselves against such threats”, he said.

Meanwhile, in Government Gazette 44258, the department announced the referral of the North West provincial department of public works and roads to the Special Investigating Unit.

The period since 1 January 2016 will be under scrutiny.

In parliament, the correctional services department recently briefed the select committee on security and justice on the Correctional Services Amendment Bill.

The committee called for comment on the bill last week after the NA passed the bill and sent it to the NCOP for concurrence.

The bill aims to amend the Correctional Services Act, 1998, so as to:

• amend a certain definition;
• insert, delete and amend certain provisions related to parole of offenders; and
• provide for matters connected therewith.

The department pointed out that the bill gives effect to the Constitutional Court judgment dated 3 May 2019 in Oupa Chipane Phaahla v Minister of Justice and Correctional Services & Another CCT44/18 [2019] ZACC 18 where the court found certain sections of the principal Act to be unconstitutional and ordered the amendment of the sections by parliament within a period of twenty-four months from the date of the order.

The department also confirmed that it has started a three-year project to review the entire Correctional Services Act and its Regulations.

“Priority is being given to matters related to Parole in its entirety, the Judicial Inspectorate of Correctional Services and matters connected with GBV.”

The committee was also briefed by Legal Aid on proposed amendments to Legal Aid South Africa Act Regulations.

Legal Aid emphasized that the proposed amendments do not result in any significant policy change.

They are designed to ensure that the “limited and decreasing civil resources of Legal Aid SA will be directed to the most vulnerable”.

The plan is also for the Means Test to keep pace with inflation without requiring annual revisions to the Regulations.