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Cybercrimes Act Under the Spotlight

July 6, 2021

Department of Justice and Constitutional Development

Once the Cybercrimes Act is in effect, it will empower law enforcement agencies to pursue criminals who may launder money in South Africa whilst sitting in other jurisdictions.

The justice and correctional services minister, Ronald Lamola, highlighted this in an address at the Digital Currencies and Anti-Money Laundering Dialogue last week.

President Ramaphosa signed the act at the beginning of June 2021.

The Cybercrimes Act aims to:

• create offences which have a bearing on cybercrime;
• criminalise the disclosure 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 cybercrimes;
• 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 act will come into effect on a date still to be determined by the president.

The minister added that South African courts will have the “power to adjudicate matters in which persons who are not South African citizens, as well as persons who commit cybercrimes in other countries, in which persons or business in South Africa are affected”.

The minister pointed out that in South Africa the purchasing of crypto assets is not regulated.

This renders the country and citizens vulnerable to syndicates which purchase crypto assets for purposes of money laundering; funding terrorist financing activities and attempts to circumvent exchange controls and mask illicit financial flows.

According to the minister, “intergovernmental collaboration and creating of agile but effective regulatory framework is paramount” to deal with the risks posed by cryptocurrencies.

Meanwhile, speaking at the South African National Preventive Mechanism International Conference, the deputy minister of justice and constitutional development, John Jeffery, emphasized the need to amend the Prevention and Combating of Torture of Persons Act in order to incorporate more Optional Protocol to the Convention Against Torture requirements.

“Although this is not on our Department’s legislative program for this financial year, it is something that must be attended to”, he said.

The deputy minister also pointed out that the UN Committee against Torture has called for comprehensive information from South Africa on three recommendations, namely, ensuring the prompt investigation and prosecution of all deaths in custody; speeding up the ratification of the Optional Protocol to the Convention against Torture and ensuring that all allegations of torture by law enforcement officials are referred by the Independent Police Investigative Directorate to the National Prosecuting Authority.

The deputy minister confirmed that the responses have been prepared by the department and sent to the international relations and cooperation department for submission to the Committee.