| (a) |
A police official may, where it is expedient, other than by way of a search and seizure in terms of a warrant contemplated in section 29(1), to obtain— |
| (i) |
data which is subject to preservation in terms of an expedited preservation of data direction or a preservation of evidence direction; or |
| (ii) |
data as contemplated in paragraph (a) of the definition of ‘‘article’’, which is— |
| (bb) |
available to a computer system, |
apply to a magistrate or judge of the High Court for the issuing of a disclosure of data direction.
| (b) |
An application referred to in paragraph (a)(i) must— |
| (i) |
indicate the identity of the police official who applies for the disclosure of data direction; |
| (iii) |
be accompanied by a copy of the expedited preservation of data direction or preservation of evidence direction or any amendment thereof; |
| (iv) |
contain a description of the data which must be provided and the format in which it must be provided; |
| (v) |
specify the grounds for believing that the data is an article as contemplated in paragraph (a) of the definition of ‘‘article’’; and |
| (vi) |
comply with any supplementary directives relating to applications for the disclosure of data, which may be issued by the Chief Justice in terms of section 8(3) of the Superior Courts Act, 2013. |
| (c) |
An application referred to in paragraph (a)(ii) must— |
| (i) |
indicate the identity of the policy official who applies for the disclosure of data direction; |
| (ii) |
identify the person, electronic communications service provider or financial institution to whom the disclosure of data direction must be addressed; |
| (iii) |
contain a description of the data which must be provided and the format in which it must be provided; |
| (iv) |
specify the grounds for believing that the data is an article as contemplated in paragraph (a) of the definition of ‘‘article’’; |
| (v) |
specify the grounds for believing that the data, in question, is held in a computer system or computer data storage medium or is available to a computer system that is under the control of the person, electronic communications service provider or financial institution, referred to in subparagraph (ii), within the area of jurisdiction of the court; and |
| (vi) |
comply with any supplementary directives relating to applications for the disclosure of data, which may be issued by the Chief Justice in terms of section 8(3) of the Superior Courts Act, 2013. |
| (2) |
A magistrate or judge of the High Court may, subject to the provisions of section 4(2) of the Customs and Excise Act, 1964, sections 69(2)(b) and 71 of the Tax Administration Act, 2011, and section 21(e) and (f) of the Customs Control Act, 2014, on the written application by a police official referred to in subsection (1), if it appears to the magistrate or judge from information on oath or by way of affirmation, as set out in the application that— |
| (a) |
there are reasonable grounds for believing that— |
| (i) |
data which is subject to preservation in terms of an expedited preservation of data direction or a preservation of evidence direction, is an article as contemplated in paragraph (a) of the definition of ‘‘article’’; or |
| (ii) |
data, which is an article as contemplated in paragraph (a) of the definition of ‘‘article’’, is— |
| (aa) |
held in a computer system or computer data storage medium; or |
| (bb) |
available to a computer system, |
within their area of jurisdiction; and
| (b) |
it will be in the interests of justice if a disclosure of data direction is issued, issue the disclosure of data direction applied for. |
| (3) |
A disclosure of data 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. |
| (4) |
The disclosure of data direction— |
| (a) |
must direct the person, electronic communications service provider or financial institution to provide the data identified in the direction to the extent set out in the direction to an identified police official; |
| (b) |
must specify the format in which the data identified in paragraph (a) must be provided; |
| (c) |
must set out the period within which the data identified in paragraph (a) must be provided; and |
| (d) |
may specify conditions or restrictions relating to the provision of data authorised therein. |
| (5) |
A person, electronic communications service provider or financial institution on whom a disclosure of data direction referred to in subsection (3) is served may, in writing in the prescribed form and manner, apply to the magistrate or judge 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 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) |
if the application is successful, inform the police official and the applicant of the outcome of the application. |
| (7) |
Any data made available in terms of a disclosure of data direction, must be— |
| (a) |
provided to the police official identified in the direction; and |
| (b) |
accompanied by an affidavit in the prescribed form by the person or authorised representative of an electronic communications service provider or financial institution, verifying the authenticity, integrity and reliability of the data that is furnished. |
| (8) |
A person, electronic communications service provider or a financial institution who— |
| (a) |
fails to comply with a disclosure of data direction; |
| (b) |
makes a false statement in an application referred to in subsection (5); or |
| (c) |
fails to comply with subsection (7), |
is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years or to both a fine and such imprisonment.
| (a) |
Any article subject to a preservation of evidence direction that is not ‘‘data’’ must be seized in terms of a warrant referred to in section 29(1). |
| (b) |
A police official may, at any time, apply for a search warrant in terms of section 29(1) to search for, access or seize an article (which includes ‘‘data’’) that is or was subject to an expedited preservation of data direction or a preservation of evidence direction. |
Copyright Act, 1978
