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Parliament Passes Cybercrimes Bill

December 4, 2020

Parliament

Parliament has passed the Cybercrimes Bill and sent it to president Ramaphosa for assent.

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.

Meanwhile, the Traditional Courts Bill has been amended by the NCOP and returned to the NA for concurrence.

The bill was tabled in February 2017.

Cabinet approved the revised draft bill in December 2016 for tabling.

The bill is designed to transform the traditional courts system so as to ensure that traditional courts function under and comply with the Constitution and the Bill of Rights.

The proposed legislation also calls on traditional leaders and those who guide the proceedings to pledge to uphold the Bill of Rights.

Some of the objects of the proposed legislation include:


• Affirm the values of customary law and customs in the resolution of disputes, based on restorative justice and reconciliation and to align them with the Constitution;
• Affirm the role of traditional courts in terms of customary law;
• Create a uniform legislative framework regulating the structure and functioning of traditional courts in the resolution of disputes, in accordance with constitutional imperatives and values;
• Enhance the effectiveness, efficiency and integrity of traditional courts in the resolution of disputes;
• Facilitate the full, voluntary and meaningful participation of all members in a community in a traditional court in order to create an enabling environment which promotes the rights enshrined in Chapter 2 of the Constitution.

The Recognition of Customary Marriages Amendment Bill has also been amended by the NCOP and returned to the NA for concurrence.

The NA passed the bill and sent it to the NCOP for concurrence in June 2020.

The bill was tabled in parliament in September 2019.

Cabinet approved the proposed legislation at the end of July 2019 for tabling.

In an earlier statement acknowledging the approval, the justice and constitutional development department pointed out that the draft bill brings section 7(1) and (2) of the Recognition of Customary Marriages Act of 1998 in line with a 2017 Constitutional Court judgment which declared the provisions constitutionally invalid.

The sections discriminate unfairly against women in customary marriages.

The department called for comment on the draft bill in April 2018.

The bill aims to amend the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998 (“the Act”), by further regulating the proprietary consequences of customary marriages entered into before the commencement of the Act so as to bring the provisions in this regard in line with judgments of the Constitutional Court which the Court found to be constitutionally invalid because they discriminate unfairly against certain women in customary marriages and to provide for matters connected therewith.

It flows from a Constitutional Court confirmation that a Limpopo High Court order declaring section 7(1) of the act to be constitutionally invalid was the correct decision.

The High Court had ruled that section 7(1) discriminated against women in polygamous customary marriages entered into before the commencement of the act.

The bill aims to:


• amend the Recognition of Customary Marriages Act, 1998, so as to further regulate the proprietary consequences of customary marriages entered into before the commencement of the said Act; and
• provide for matters connected therewith.

In November 2019, the bill was sent to the National House of Traditional Leaders for comment.

The portfolio committee on justice and correctional services adopted the bill without amendment.