| (1) |
A member of the Directorate, of or above the rank of Brigadier, may apply to a High Court, by way of an ex parte application to a judge in chambers, for the issuing of an order in terms of which an electronic communications service provider, whose electronic communications service is used to host a terrorism publication, is directed to take-down or disable access to such a publication. |
| (2) |
An application referred to in subsection (1)— |
| (i) |
identify the applicant; |
| (ii) |
identify the electronic communications service provider to whom the order is to be addressed; |
| (iii) |
identify the electronic communications service of the electronic communications service provider that is used to host the terrorism publication; |
| (iv) |
be accompanied by an electronic copy of the terrorism publication; |
| (v) |
provide a description of the terrorism publication which must, where the publication in question is in the form of a speech, text, video or other visual representation, include a printed copy of the relevant content that will be relied upon to motivate that the publication is a terrorism publication; |
| (vi) |
indicate the reasons why the publication must be considered to be a terrorism publication; and |
| (vii) |
contain full particulars of all the facts and circumstances alleged in support of the application; and |
| (c) |
may be accompanied by— |
| (i) |
affidavits of persons who have knowledge of the matter concerned; or |
| (ii) |
other information relevant to the application. |
| (3) |
The High Court must, as soon as reasonably possible, consider an application submitted to it in terms of subsection (1) and may, for that purpose, consider any such additional evidence it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of proceedings. |
| (4) |
If the High Court is satisfied that the electronic communications service of the electronic communications service provider is used to host a terrorism publication, the court may, subject to such conditions as the court may deem fit to impose, issue the order applied for in terms of subsection (1). |
| (5) |
An order issued under subsection (4) must— |
| (a) |
identify the electronic communications service provider to whom the order must be addressed; |
| (b) |
identify the applicant; |
| (c) |
identify and describe the terrorism publication; |
| (d) |
identify the electronic communications service of the electronic communications service provider that is used to host the terrorism publication; |
| (e) |
give reasons for the decision or finding of the court that the publication is a terrorism publication; |
| (f) |
order the electronic communications service provider to take-down or disable access to the terrorism publication within the period deter-mined in the order from the date of service upon the electronic communications service provider; and |
| (g) |
specify any condition imposed by the court. |
(6)
| (a) |
Except in a case where the High Court determines otherwise, an order under subsection (1) and a copy of the application contemplated in subsection (1) must be served upon an electronic communications service provider by a peace officer, as defined in section 1 of the Criminal Procedure Act, in accordance with the applicable rules of court. |
| (b) |
Where the High Court is satisfied that service cannot be effected in any manner referred to in paragraph (a), the court may make an order allowing service to be effected in a manner specified in such order. |
| (7) |
An electronic communications service provider may, within 14 calendar days after the order has been served, apply to the relevant High Court for the setting aside or amendment of the order referred to in subsection (4). |
| (8) |
The High Court must, as soon as is reasonably possible, consider an application submitted to it in terms of subsection (7) and may, for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which shall form part of the record of the proceedings. |
| (9) |
The High court may, for purposes of subsections (3) and (8), subpoena, or cause to be subpoenaed, any person as a witness at such 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. |
| (10) |
Any person who is subpoenaed in terms of subsection (9) 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) |
Any electronic communications service provider who fails to comply with an order referred to in subsection (1), is guilty of an offence. |
| (12) |
The provisions in respect of appeal and review as provided for in the Superior Courts Act, 2013 (Act No. 10 of 2013), apply to proceedings in terms of this section. |
| (13) |
For purposes of this section— |
| (a) |
‘host a terrorism publication’ means— |
| (i) |
to store a terrorism publication on the electronic communications network of an electronic communications service provider as part of providing an electronic communications service where it can be viewed, listened to, copied or downloaded; or |
| (ii) |
to provide a link to the terrorism publication that has been stored on an electronic communication network of an elec-tronic communications service provider, where it can be viewed, copied or downloaded; |
| (b) |
‘take-down’ means to delete or otherwise remove a terrorism publication stored on an electronic communications network; and |
| (c) |
‘terrorism publication’ means an electronic communication in the form of a speech, text, video or other visual representation that— |
| (i) |
threatens the public or segments of the public with the conduct in paragraph (a) of the definition of ‘terrorist activity’, or threatens the commission of an offence referred to in section 5, 6, 7, 8, 9 or 10; or |
| (ii) |
incites others to commit the offences referred to in subparagraph (i). |
[Section 24A inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 19 of Notice No. 1533, G47803, dated 29 December 2022]
Statistics Act, 1999
