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Cybercrimes Act, 2020 (Act No. 19 of 2020)

Chapter 4 : Powers to Investigate, Search, Access or Seize

42. Preservation of evidence direction

 

(1) A magistrate or judge of the High Court, may—
(a) upon written application by a police official;
(b) if it appears to the magistrate or judge upon consideration of the information provided under oath or by way of affirmation, as set out in the application, that there are reasonable grounds to believe that any person, electronic communications service provider or financial institution—
(i) may receive;
(ii) is in possession of; or
(iii) is in control of,

an article; and

(c) with due regard to the rights, responsibilities and legitimate interests of other persons in proportion to the severity of the offence in question,

issue a preservation of evidence direction.

 

(2) A preservation of evidence direction must be in the prescribed form and must be served on the person, electronic communications service provider or financial institution affected thereby, in the prescribed manner by a police official.

 

(3) The preservation of evidence direction must direct the person, electronic communications service provider or financial institution, from the time of service of the direction, and for the time period specified in the direction, which may not exceed 90 days—
(a) to preserve the current status of;
(b) not to deal in any manner with; or
(c) to deal in a certain manner with,

an article in order to preserve the availability or integrity of the article.

 

(4) Any person, electronic communications service provider or financial institution who fails to comply with a preservation of evidence direction is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both a fine and such imprisonment.

 

(5) A person, electronic communications service provider or financial institution to whom a preservation of evidence direction referred to in subsection (1) is addressed may, in writing in the prescribed form and manner, apply to a magistrate or judge of the High Court in whose area of jurisdiction the person, electronic communications service provider or financial institution is situated for an amendment or the cancellation of the direction concerned on the ground that they cannot timeously or in a reasonable fashion, comply with the direction.

 

(6) The magistrate or judge of the High Court to whom an application is made in terms of subsection (5) must, as soon as possible after receipt thereof—
(a) consider the application and may, for this purpose, order oral or written evidence to be adduced regarding any fact alleged in the application;
(b) give a decision in respect of the application; and
(c) inform the applicant and police official of the outcome of the application.