|
Number and year of law
|
Short title
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Extent of repeal or amendment
|
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Act No. 51 of 1977
|
Criminal Procedure Act, 1977
|
The addition of the following items to Schedule 5:
‘‘A contravention of section 8, 9 or 10 of the Cybercrimes Act, 2020—
| (a) |
involving amounts of more than R500 000,00; |
| (b) |
involving amounts of more than R100 000,00, if it is proven that the offence was committed— |
| (i) |
by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or |
| (ii) |
by a person or with the collusion or assistance of another person, who as part of his or her duties, functions or lawful authority was in charge of, in control of, or had access to data, a computer program, a computer data storage medium or a computer system of another person in respect of which the offence in question was committed; or |
| (c) |
if it is proven that the offence was committed by any law enforcement officer— |
| (i) |
involving amounts of more than R10 000; or |
| (ii) |
as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or |
| (iii) |
with the collusion or assistance of another person, who as part of his or her duties, functions or lawful authority was in charge of, in control of, or had access to data, a computer program, a computer data storage medium or a computer system of another person in respect of which the offence in question was committed. |
A contravention of section 11(2) of the Cybercrimes Act, 2020.’’.
|
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Act No. 68 of 1995
|
South African Police Service Act, 1995
|
The deletion of section 71.
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Act No. 65 of 1996
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Films and Publications Act, 1996
|
The deletion of section 24B.
|
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Act No. 105 of 1997
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Criminal Law Amendment Act, 1997
|
The addition of the following item to Part II of Schedule 2:
‘‘A contravention of section 8, 9 or 10 of the Cybercrimes Act, 2020—
| (a) |
involving amounts of more than R500 000,00; |
| (b) |
involving amounts of more than R100 000,00, if it is proven that the offence was committed— |
| (i) |
by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or |
| (ii) |
by a person or with the collusion or assistance of another person, who as part of his or her duties, functions or lawful authority was in charge of, in control of, or had access to data, a computer program, a computer data storage medium or a computer system of another person in respect of which the offence in question was committed; or |
| (c) |
if it is proven that the offence was committed by any law enforcement officer— |
| (i) |
involving amounts of more than R10 000; or |
| (ii) |
as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or |
| (iii) |
with the collusion or assistance of another person, who as part of his or her duties, functions or lawful authority was in charge of, in control of, or had access to data, a computer program, a computer data storage medium or a computer system of another person in respect of which the offence in question was committed.’’ |
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Act No. 32 of 1998
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National Prosecuting Authority Act, 1998
|
The deletion of sections 40A and 41(4).
|
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Act No. 111 of 1998
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Correctional Services Act, 1998
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The deletion of section 128.
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Act No. 38 of 1998
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Financial Intelligence Centre Act, 2001
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The deletion of sections 65, 66 and 67.
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Act No. 25 of 2002
|
Electronic Communications and Transactions Act, 2002
|
| (a) |
The deletion of sections 85, 86, 87 and 88. |
| (b) |
The substitution for section 89 of the following section: |
‘‘Penalties
89. [(1)] A person convicted of an offence referred to in sections 37(3), 40(2), 58(2), 80(5)[,] or 82(2) [or 86(1), (2) or (3)] is liable to a fine or imprisonment for a period not exceeding 12 months.
[(2) A person convicted of an offence referred to in section 86(4) or (5) or section 87 is liable to a fine or imprisonment for a period not exceeding five years.]’’
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Act No. 70 of 2002
|
Regulation of Interception of Communications and Provision of Communication related Information Act, 2002
|
| (a) |
The amendment of section 1 by the substitution for paragraph (a) of the definition of ‘‘serious offence’’ of the following paragraph: |
‘‘(a) offence mentioned in [the] Schedule 1; or’’.
| (b) |
The amendment of section 4 by the addition of the following subsection: |
‘‘(3) Notwithstanding subsection (2), a law enforcement officer or a person who is authorised in terms of the Criminal Procedure Act, 1977, the Cybercrimes Act, 2020, or any other law to engage or to apprehend a suspect or to enter premises in respect of the commission or suspected commission of any offence, may during the apprehension of the suspect or during the time that he or she is lawfully on the premises, record what he or she observes or hears if—
| (a) |
the recording relates directly to the purpose for which the suspect was apprehended or the law enforcement officer or person entered the premises; and |
| (b) |
the law enforcement officer or person has— |
| (i) |
identified himself or herself as such; and |
| (ii) |
verbally informed any person concerned that his or her direct communications are to be recorded, |
before such recording is made.’’.
| (c) |
The substitution for subsection (4) of section 17 of the following subsection: |
| ‘‘(4) |
Areal-time communication-related direction may only be issued if it appears to the designated judge concerned, on the facts alleged in the application concerned, that there are reasonable grounds to believe that— |
| (a) |
a serious offence or an offence mentioned in Schedule II has been or is being or will probably be committed; |
| (b) |
the gathering of information concerning an actual threat to the public health or safety, national security or compelling national economic interests of the Republic is necessary; |
| (c) |
the gathering of information concerning a potential threat to the public health or safety or national security of the Republic is necessary; |
| (d) |
the making of a request for the provision, or the provision to the competent authorities of a country or territory outside the Republic, of any assistance in connection with, or in the form of, the interception of communications relating to organised crime, an offence mentioned in Schedule II or any offence relating to terrorism or the gathering of information relating to organised crime or terrorism, is in— |
| (i) |
accordance with an international mutual assistance agreement; or |
| (ii) |
the interests of the Republic’s international relations or obligations; or |
| (e) |
the gathering of information concerning an offence mentioned in Schedule II, or property which is or could probably be an instrumentality of a serious offence, or is or could probably be the proceeds of unlawful activities, is necessary, |
and that the provision of real-time communication- related information is necessary for purposes of investigating such offence or gathering such information.’’.
| (d) |
The substitution for subsection (4) of section 19 of the following subsection: |
| ‘‘(4) |
An archived communication-related direction may only be issued if it appears to the judge of a High Court, regional court magistrate or magistrate concerned, on the facts alleged in the application concerned, that there are reasonable grounds to believe that— |
| (a) |
a serious offence or an offence mentioned in Schedule II has been or is being or will probably be committed; |
| (b) |
the gathering of information concerning an actual threat to the public health or safety, national security or compelling national economic interests of the Republic is necessary; |
| (c) |
the gathering of information concerning a potential threat to the public health or safety or national security of the Republic is necessary; |
| (d) |
the making of a request for the provision, or the provision to the competent authorities of a country or territory outside the Republic, of any assistance in connection with, or in the form of, the interception of communications relating to organised crime, an offence mentioned in Schedule II or any offence relating to terrorism or the gathering of information relating to organised crime or terrorism, is in— |
| (i) |
accordance with an international mutual assistance agreement; or |
| (ii) |
the interests of the Republic’s international relations or obligations; or |
| (e) |
the gathering of information concerning an offence mentioned in Schedule II, or property which is or could probably be an instrumentality of a serious offence, or is or could probably be the proceeds of unlawful activities, is necessary, |
and that the provision of archived communication-related information is necessary for purposes of investigating such offence or gathering such information.’’.
| (e) |
The renaming of the Schedule to the Act as ‘‘Schedule I’’ and the addition of the following items: |
‘‘15 Any offence contemplated in section 17, 18, 19A or 20 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007).
16 Any offence contemplated in—
| (a) |
section 8, 9(1) or (2) or 10, which involves an amount of R200 000, 00 or more; or |
| (b) |
section 11(1) or (2) or 17 (in so far as the section relates to the offences referred to in section 11(1) or (2)), |
of the Cybercrimes Act, 2020.’’.
| (f) |
The addition of the following Schedule after Schedule I: |
‘‘Schedule II
| 1 |
Any offence referred to in— |
| (a) |
section 3(1), 5, 6, 7(1), 8, 9(1) or (2), or 10; or |
| (b) |
section 17 (in so far as thesection relates to the offences referred to in paragraph (a)), of the Cybercrimes Act, 2020, which involves an amount of R50 000, 00 or more. |
| 2 |
Any offence which is substantially similar to an offence referred to in item 1 which is or was committed in a foreign State, which involves an amount of R50 000, 00 or more.’’. |
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Act No. 32 of 2007
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Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
|
| (a) |
The Index to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, is hereby amended— |
| (i) |
by the insertion of the following Part and items after item 11: |
‘‘Part 3A
Persons 18 years or older: Harmful disclosure of pornography and orders to protect complainant against harmful effects of disclosure of pornography
| 11A |
Harmful disclosure of pornography |
| 11B |
Orders to protect complainant against harmful disclosure of pornography pending finalisation of criminal proceedings |
| 11C |
Electronic communications service provider to furnish particulars to court |
| 11D |
Orders on finalisation of criminal proceedings’’; |
| (ii) |
by the substitution for the heading to Part 2 of Chapter 3 of the following heading: |
‘‘Sexual exploitation and sexual grooming of children, exposure or display of or causing exposure or display of child pornography or pornography to children, child pornography and using children for pornographic purposes or benefiting from child pornography’’; and
| (iii) |
the insertion after item 19 of the following item: |
‘‘19A. Offences relating to child pornography’’.
| (b) |
The amendment of section 1— |
| (i) |
by the insertion, after the definition of ‘‘Director of Public Prosecutions’’, of the following definitions: |
‘‘ ‘disclose’ and ‘disclosure’, in relation to the harmful disclosure of pornography contemplated in section 11A, includes—
| (a) |
to send the pornography to a person who is the intended recipient of the electronic communication or any other person; |
| (b) |
to store the pornography on an electronic communications network, where the pornography can be viewed, copied or downloaded; or |
| (c) |
to send or otherwise make available to a person, a link to the pornography that has been stored on an electronic communication network, where the pornography can be viewed, copied or downloaded; |
‘Electronic Communications Act’ means the Electronic Communications Act, 2005 (Act No. 36 of 2005);
‘electronic communications identity number’ means a technical identification label which represents the origin or destination of electronic communications traffic;
‘electronic communications network’ means an ‘electronic communications network’ as defined in section 1 of the Electronic Communications Act, 2005, and includes a computer system;
‘electronic communications service’ means any service which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services as defined in section 1 of the Electronic Communications Act, 2005;
‘electronic communications service provider’ means—
| (a) |
any person who provides an electronic communications service to the public, sections of the public, the State, or the subscribers to such service, under and in accordance with an electronic communications service licence issued to that person in terms of the Electronic Communications Act, 2005, or who is deemed to be licensed or exempted from being licensed as such in terms of that Act; and |
| (b) |
a person who has lawful authority to control the operation or use of a private electronic communications network used primarily for providing electronic communications services for the owner’s own use and which is exempted from being licensed in terms of the Electronic Communications Act, 2005;’’; and |
| (ii) |
by the insertion, after the definition of ‘‘genital organs’’ of the following definitions: |
‘‘‘host’ means to store information on an electronic communications network that is used to provide an electronic communications service, where it can be viewed, copied or downloaded;
‘live performance involving child pornography’ means an event where a child is used to create, make or produce child pornography;’’.
| (c) |
The following Part and sections are hereby inserted in Chapter 2 after section 11: |
‘‘Part 3A
Persons 18 years or older: Harmful disclosure of pornography and orders to protect complainant against harmful effects of disclosure of pornography Harmful disclosure of pornography
11A. (1) A person (‘A’) who unlawfully and intentionally discloses or causes the disclosure of pornography in which a person (‘B’) appears or is described and such disclosure—
| (a) |
takes place without the consent of B; and |
| (b) |
causes any harm, including mental, psychological, physical, social or economic harm, to B or any member of the family of B or any other person in a close relationship to B, |
is guilty of the offence of harmful disclosure of pornography.
| (2) |
A person (‘A’) who unlawfully and intentionally threatens to disclose or threatens to cause the disclosure of pornography referred to in subsection (1) and such threat causes, or such disclosure could reasonably be expected to cause, any harm referred to in subsection (1)(b), is guilty of the offence of threatening to disclose pornography that will cause harm. |
| (3) |
A person (‘A’) who unlawfully and intentionally threatens to disclose or threatens to cause the disclosure of pornography referred to in subsection (1), for the purposes of obtaining any advantage from B or any member of the family of B or any other person in a close relationship to B, is guilty of the offence of harmful disclosure of pornography related extortion. |
Orders to protect complainant against harmful disclosure of pornography pending finalisation of criminal proceedings
11B. (1) A complainant (hereinafter referred to as the applicant) who lays a charge with the South African Police Service that an offence contemplated in section 11A(1), (2) or (3) has allegedly been committed against him or her, may on an ex parte basis in the prescribed form and manner, apply to a magistrate’s court for a protection order pending the finalisation of the criminal proceedings to—
| (a) |
prohibit any person to disclose, or cause the disclosure or threaten the applicant with the disclosure or causing the disclosure of pornography which relates to the charge; or |
| (b) |
order an electronic communications service provider whose electronic communications service is used to host or disclose the pornography which relates to the charge, to remove or disable access to such pornography. |
| (2) |
The court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (1) and may, for that purpose consider any additional evidence it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings. |
| (3) |
If the court is satisfied that there— |
| (a) |
is prima facie evidence that an offence referred to in section 11A(1), (2) or (3), has allegedly been committed against the applicant; and
|
| (b) |
are reasonable grounds to believe that a person referred to in subsection (1)(a), disclosed or caused the disclosure or threatened the applicant with the disclosure or causing the disclosure of such pornography; or |
(c) are reasonable grounds to believe that the electronic communications service of the electronic communications service provider referred to in subsection (1)(b), is used to host or disclose such pornography,
the court may, subject to such conditions as the court may deem fit, issue the order referred to in subsection (1), in the prescribed form.
|
|
|
| (4) |
The order, referred to in subsection (3), must be served on the person referred to in subsection (1)(a) or electronic communications service provider referred to in subsection (1)(b), in the prescribed manner: Provided, that if the court is satisfied that the order cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form or manner specified in that order. |
| (5) |
An order referred to in subsection (3) is of force and effect from the time it is issued by the court and the existence thereof has been brought to the attention of the person referred to in subsection (1)(a) or electronic communications service provider referred to in subsection (1)(b). |
| (6) |
A person referred to in subsection (1)(a), other than the person who is accused of having committed the offence in question, or an electronic communications service provider, referred to in subsection (1)(b) may, within 14 days after the order has been served on him, her or it in terms of subsection (4) or within such further period as the court may allow, upon notice to the magistrate’s court concerned, in the prescribed form and manner, apply to the court for the setting aside or amendment of the order referred to in subsection (3). |
| (a) |
The court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (6) and may for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings. |
| (b) |
The court may if good cause has been shown for the variation or setting aside of the protection order, issue an order to this effect. |
| (8) |
The court may, for purposes of subsections (2) and (7), in the prescribed form and manner cause to be subpoenaed any person as a witness at those proceedings or to provide any book, document or object, if the evidence of that person or book, document or object appears to the court essential to the just decision of the case. |
| (9) |
A person referred to in subsection (1)(a) or electronic communications service provider referred to in subsection (1)(b), that fails to comply with an order referred to in subsection (3) or any variation thereof, is guilty of an offence. |
| (10) |
Any person who is subpoenaed in terms of subsection (8) to attend proceedings and who fails to— |
| (a) |
attend or to remain in attendance; |
| (b) |
appear at the place and on the date and at the time to which the proceedings in question may be adjourned; |
| (c) |
remain in attendance at those proceedings as so adjourned; or |
| (d) |
produce any book, document or object specified in the subpoena, |
is guilty of an offence.
| (11) |
The provisions in respect of appeal and review as provided for in the Magistrates’ Courts Act, 1944, and the Superior Courts Act, 2013, apply to proceedings in terms of this section. |
| (12) |
Sections 8 and 9(3) of the Protection from Harassment Act, 2011 (Act No. 17 of 2011), apply with the necessary changes required by the context to proceedings contemplated in subsections (2) and (7). |
|
|
|
Electronic communications service provider to furnish particulars to court
11C. (1) If an application for a protection order is made in terms of section 11B(1) and the court is satisfied in terms of section 11B(3) that a protection order must be issued and the particulars of the person referred to in section 11B(1)(a), or the electronic communications service provider referred to in section 11B(1)(b), whose service is used to host or disclose such pornography, is not known, the court may—
| (a) |
adjourn the proceedings to any time and date on the terms and conditions which the court deems appropriate; and |
| (b) |
issue a direction in the prescribed form, directing an electronic communications service provider, that is believed to be able to furnish such particulars, to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with— |
| (i) |
the electronic communications identity number from where such pornography originated; |
| (ii) |
the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned; |
| (iii) |
any information which indicates that such pornography was or was not sent from the electronic communications identity number of the person to the electronic communications identity number of the applicant; |
| (iv) |
any information that is available to an electronic communications service provider that may be of assistance to the court to identify the person referred to in section 11B(1)(a) or the electronic communications service provider referred to in section 11B(1)(b), which provides a service to that person; |
| (v) |
any information that is available to an electronic communications service provider which— |
| (aa) |
confirms whether or not its electronic communications service is used to host or was or is used to disclose such pornography; or |
| (bb) |
may be of assistance to the court to identify the electronic communications service provider whose service is used to host or was or is used disclose such pornography; and |
| (vi) |
an assessment whether or not the electronic communications service provider is in a position to— |
| (aa) |
remove such pornography or a link to such pornography; or |
| (bb) |
disable access to such pornography or a link to such pornography. |
| (2) |
If the court issues a direction in terms of subsection (1)(b) the court must direct that the direction be served on the electronic communications service provider in the prescribed manner: Provided, that if the court is satisfied that the direction cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form or manner specified in that order. |
| (3) |
(a) The information referred to in subsection (1)(b) must be provided to the court within five ordinary court days from the time that the direction is served on an electronic communications service provider. |
| (b) |
An electronic communications service provider on which a direction is served, may in the prescribed manner by means of an affidavit in the prescribed form apply to the court for— |
| (i) |
an extension of the period of five ordinary court days referred to in paragraph (a) for a further period of five ordinary court days on the grounds that the information cannot be provided timeously; or |
| (ii) |
the cancellation of the direction on the grounds that— |
| (aa) |
it does not provide an electronic communications service to the applicant or the person referred to in section 11B(1)(a); |
| (bb) |
the requested information is not available in the records of the electronic communications service provider; or |
| (cc) |
its service is not used to host or was or is not used to disclose such pornography. |
| (4) |
After receipt of an application interms of subsection (3)(b), the court— |
| (a) |
must consider the application; |
| (b) |
may, in the prescribed manner, request such additional evidence by way of affidavit from the electronic communications service provider as it deems fit; |
| (c) |
must give a decision in respect thereof; and |
| (d) |
must inform the electronic communications service provider in the prescribed form and manner of the outcome of the application. |
| (a) |
The court may, on receipt of an affidavit from an electronic communications service provider which contains the information referred to in subsection (1)(b), consider the issuing of a protection order in terms of section 11B(3) against the person or electronic communications service provider on the date to which the proceedings have been adjourned. |
| (b) |
Any information furnished to the court in terms of subsection (1)(b) forms part of the evidence that a court may consider in terms of section 11B(3). |
| (6) |
The Cabinet member responsible for the administration of justice may, by notice in the Gazette, prescribe reasonable tariffs of compensation payable to electronic communications service providers for providing the information referred to in subsection (1)(b). |
| (7) |
Any electronic communications service provider or employee of an electronic communications service provider who— |
| (a) |
fails to furnish the required information within five ordinary court days from the time that the direction is served on such electronic communications service provider to a court in terms of subsection (3)(a) or such extended period allowed by the court in terms of subsection (3)(b); or |
| (b) |
makes a false statement in an affidavit referred to in subsection (1)(b) or (3)(b) in a material respect, |
is guilty of an offence.
|
|
|
Orders on finalisation of criminal proceedings
| 11D. |
(1) The trial court, on convicting a person of any offence referred to in section 11A(1), (2) or (3), must order— |
| (a) |
that person to destroy the pornography and to submit an affidavit in the prescribed form to the prosecutor identified in the order, that the pornography has been so destroyed; or |
| (b) |
an electronic communications service provider whose service is used to host or disclose such pornography to remove or disable access to such pornography. |
| (2) |
The order referred to in subsection (1)(b), must be in the prescribed form and must be served on the electronic communications service provider in the prescribed manner: Provided, that if the trial court is satisfied that the order cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form or manner specified in that order. |
| (3) |
Any person or electronic communications service provider who fails to comply with an order referred to in subsection (1), is guilty of an offence. |
| (4) |
An electronic communications service provider may, within 14 days after the order referred to in subsection (1)(b) has been served on it in terms of subsection (2), upon notice to the trial court concerned, in the prescribed form and manner, apply to the trial court for the setting aside or amendment of the order. |
| (5) |
(a) The trial court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (4) and may for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings. |
| (b) |
The trial court may if good cause has been shown for the variation or setting aside of the order, issue an order to this effect. |
| (6) |
The trial court may, for purposes of subsections (5)(a), in the prescribed form and manner cause to be subpoenaed any person as a witness at those proceedings or to provide any book, document or object, if the evidence of that person or book, document or object appears to the court essential to the just decision of the case. |
| (7) |
Any person who is subpoenaed in terms of subsection (6) to attend proceedings and who fails to— |
| (a) |
attend or to remain in attendance; |
| (b) |
appear at the place and on the date and at the time to which the proceedings in question may be adjourned; |
| (c) |
remain in attendance at those proceedings as so adjourned; or |
| (d) |
produce any book, document or object specified in the subpoena, |
is guilty of an offence.
| (8) |
For purposes of this section ‘‘trial court’’ means—
|
| (a) |
a magistrate’s court established under section 2(1)(f)(i) of the Magistrates’ Courts Act, 1944; |
| (b) |
a court for a regional division established under section 2(1)(g)(i) of the Magistrates’ Courts Act, 1944; or |
| (c) |
a High Court referred to in section 6(1) of the Superior Courts Act, 2013. |
| (9) |
Whenever a person is convicted of an offence referred to in section 11A(1), (2) or (3), the trial court must issue an order that the person so convicted must reimburse all expenses reasonably incurred by— |
| (a) |
a complainant as a result of any direction issued in terms of section 11C(1)(b); or |
| (b) |
an electronic communications service provider to remove or disable access to such pornography, |
whereupon the provisions of section 300 of the Criminal Procedure Act, 1977, shall apply with the necessary changes required by the context, to such order.’’.
| (d) |
Chapter 3 is hereby amended— |
| (i) |
by the substitution for the heading to Part 2 of Chapter 3 of the following heading: |
‘‘Sexual exploitation and sexual grooming of children, exposure or display of or causing exposure or display of child pornography or pornography to children, offences relating to child pornography and using children for pornographic purposes or benefiting from child pornography’’;
| (ii) |
by the addition to section 17 of the following subsection: |
‘‘(7) Any person who unlawfully and intentionally in any manner advocates, advertises, encourages or promotes the sexual exploitation of a child, is guilty of an offence.’’;
| (iii) |
by the insertion of the following section after section 19: |
‘‘Offences relating to child pornography
| 19A. |
(1) Any person who unlawfully and intentionally creates, makes or produces child pornography in any manner, other than by using a child for child pornography as contemplated in section 20(1), is guilty of an offence. |
| (2) |
Any person who unlawfully and intentionally, in any manner assists in, or facilitates the creation, making or production of child pornography, |
is guilty of an offence.
| (3) |
Any person who unlawfully and intentionally possesses child pornography, |
is guilty of an offence.
| (4) |
Any person who unlawfully and intentionally, in any manner— |
child pornography, is guilty of an offence.
| (5) |
Any person who unlawfully and intentionally, in any manner assists in, or facilitates the— |
of child pornography, is guilty of an offence.
| (6) |
Any person who unlawfully and intentionally processes or facilitates a financial transaction, knowing that such transaction will facilitate a contravention of subsections (1) to (5), is guilty of an offence.’’; and |
| (iv) |
by the addition to section 20 of the following subsections: |
| ‘‘(3) |
Any person who unlawfully and intentionally— |
a live performance involving child pornography, is guilty of the offence of attending, viewing or participating in, a performance involving child pornography.
| (4) |
Any person (‘‘A’’) who unlawfully and intentionally recruits a child complainant (‘‘B’’), with or without the consent of B, whether for financial or other reward, favour or compensation to B or a third person (‘‘C’’) or not, for purposes of— |
| (a) |
creating, making or producing of child pornography, is guilty of the offence of recruiting a child for child pornography; or |
| (b) |
participating in a live performance involving child pornography, as contemplated in subsection (3), is guilty of the offence of recruiting a child for participating in a live performance involving child pornography.’’. |
|
|
|
| (e) |
Section 54 of the Act is amended by the addition of the following subsections: |
| ‘‘(3) |
Any person who, having knowledge of the commission of any offence referred to in section 19A, or having reason to suspect that such an offence has been or is being or will probably be committed and unlawfully and intentionally fails to— |
| (a) |
report such knowledge or suspicion as soon as possible to the South African Police Service; or |
| (b) |
furnish, at the request of the South African Police Service, all particulars of such knowledge or suspicion, |
is guilty of an offence.
| (4) |
An electronic communications service provider that is aware or becomes aware that its electronic communications service or electronic communications network is used or involved in the commission of any offence provided for in section 19A, must— |
| (a) |
immediately report the offence to the South African Police Service; |
| (b) |
preserve any information which may be of assistance to the South African Police Service in investigating the offence; and |
| (c) |
take all reasonable steps to prevent access to the child pornography by any person.’’. |
| (f) |
Section 56A of the Act is amended by the addition of the following subsections: |
| ‘‘(3) |
(a) Any person who contravenes the provisions of section 11A(1) or (2), is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both such fine and imprisonment. |
| (b) |
Any person who contravenes the provisions of section 11A(3), is liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and imprisonment. |
| (c) |
Any person or electronic communications service provider that is convicted of an offence referred to in section 11B(9) or (10), is liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both such fine and imprisonment. |
| (d) |
Any person or electronic communications service provider that is convicted of an offence referred to in section 11C(7), is liable, on conviction to a fine or to imprisonment for a period not exceeding two years or to both such fine and imprisonment. |
| (e) |
Any electronic communications service provider or person that is convicted of an offence referred to in section 11D(3) or (7), is liable on conviction to a fine or to imprisonment for a period not exceeding 2 years or to both such fine and imprisonment. |
| (4) |
Any person who contravenes the provisions of section 19A(3), (4)(f), (g), (h), (i) or (j), or (5)(f), (g), (h), (i) or (j) is liable— |
| (a) |
in the case of a first conviction, to a fine or to imprisonment for a period not exceeding five years or to both such fine and imprisonment; |
| (b) |
in the case of a second conviction, to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and imprisonment; or |
| (c) |
in the case of a third and subsequent conviction, to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and imprisonment. |
| (5) |
Any person who contravenes the provisions of section 17(7), 19A(1), (2), (4)(a), (b), (c), (d), or (e), (5)(a), (b), (c), (d) or (e) or 20(3) or (4), is liable— |
| (a) |
in the case of a first conviction, to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and imprisonment; or |
| (b) |
in the case of a second and subsequent conviction, to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and imprisonment. |
| (6) |
Any person who contravenes the provisions of section 19A(6), is liable— |
| (a) |
in the case of a first conviction, to a fine of R1 000 000 or to imprisonment for a period not exceeding 5 years, or to both such fine and imprisonment; or |
| (b) |
in the case of a second or subsequent conviction, to a fine of R2 000 000 or to imprisonment for a period not exceeding 10 years or to both such fine and imprisonment. |
| (7) |
Any person who contravenes the provisions of section 54(3), is liable, on conviction to a fine or to imprisonment for a period not exceeding 5 years or to both such fine and imprisonment. |
| (8) |
Any electronic communications service provider who contravenes the provisions of section 54(4), is liable, on conviction to a fine not exceeding R1 000 000 or to imprisonment for a period not exceeding 5 years or to both such fine and imprisonment.’’. |
|
|
Act No. 75 of 2008
|
Child Justice Act, 2008
|
| (a) |
The addition of the following item to Schedule 2: |
‘‘26. Any offence contemplated in—
(a) section 2, 3 or 4 of the Cybercrimes Act, 2020;
| (b) |
section 5, 6, 7 or 11(1) of the Cybercrimes Act, 2020, where the damage caused does not exceed an amount of R5000; |
| (c) |
section 14, 15 or 16 of the Cybercrimes Act, 2020; or |
| (d) |
section 8, 9 or 10 of the Cybercrimes Act, 2020, where the amount involved does not exceed R1500. |
27. An offence contemplated in section 11A(1) and (2) of Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.’’.
| (b) |
The addition of the following item to Schedule 3: |
‘‘23. Any offence contemplated in—
| (a) |
section 5, 6, 7 or 11(1) of the Cybercrimes Act, 2020, where the damage caused exceeds an amount of R5000; |
| (b) |
section 8, 9 or 10 of the Cybercrimes Act, 2020, where the amount involved exceeds R1500; or |
| (c) |
section 11(2) of the Cybercrimes Act, 2020. |
24. An offence contemplated in section 11A(3) of Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007.’’.
|
Statistics Act, 1999
