The Committee met to be briefed on the remaining part of the proposed Cyber Security and Cybercrime Bill. The team from the Department of Justice and Constitutional Development (DOJCD) presented a chapter by chapter explanation of the remaining parts of Chapters five to 13 of the draft Bill.
During the discussion, the Committee asked the DOJCD to clarify the lawful authority that could give consent to the search or seizure of an article when the police official did not have a search warrant as captured in Clause 29; expressed concern that in most cases the person being searched would not voluntarily allow access to the article that needed to be searched or seized; and asked how Clause 29 would assist in prosecuting a case if the party deleted the electronic data before the police official accessed the data.
The Committee commented that Clause 26 was not adequately drafted, because it empowered ‘a police official’ in accordance with Chapter five to search for, access or seize any data involved in an offence, and asked the Department to clarify the superior officer that could give a ‘police official’ consent to conduct a search, in line with Clause 26, and to qualify the police official being referred to in both Clauses 26 and 29. The Committee requested the DOJCD to note the concerns of Members, and re-craft both Clauses 26 and 29.
The Chairperson said that the purpose of the meeting was to continue the brief on the Cybersecurity and Cybercrime Bill that had started the previous day, and invited the team from Department of Justice and Constitutional Development (DOJCd) to resume the brief.
Mr Sarel Robertse, State Law Advisor (SLA), DOJCD continued with the chapter by chapter explanation of the craft Bill. He said that Clause 29 in Chapter five, which addressed the powers of the South African Police Service (SAPS), provided that a person with lawful authority could consent to the search or seizure of an article when the police official did not have a search warrant.
Mr L Mpumlwana (ANC) interjected and asked the DOJCD to give clarity on the lawful authority in Clause 29that could give consent to such a search or seizure of an article.
Mr Robertse responded that the person that was being searched could voluntarily consent to being searched. He also said that the court administrator could interpret Clause 29 to mean a system administrator in an organisation, according to the Criminal Protection Act, if the person did not consent to a search or seizure.
Mr Mpumlwana expressed concern that in most cases the person being searched would not voluntarily allow access to the article that needed to be searched or seized.
The Chairperson asked Mr Mpumlwana to wait for the DOJCD to complete its brief before expressing concerns or asking questions.
Mr Mpumlwana said that he had other engagements, and would be departing the meeting early.
The Chairperson permitted the comment and question to be addressed.
Ms Kalayvani Pillay, Deputy Director-General (DDG): DOJCD, said that Clause 29 provided for a situation where a warrant was not needed to search or seize an article. However, when the party did not consent, the police official needed to obtain a warrant before a search or seizure could be conducted on the party.
Mr Robertse said that the provision could be used to avoid a delay, but if the party or the lawful authority refused to consent to the search or seizure, the police official had to obtain a warrant before a search or seizure could be conducted on the party. He remarked that this situation presented challenges for offences involving electronic data.
Mr Mpumlwana asked how Clause 29 would assist in prosecuting a case if the party deleted the electronic data before the police official accessed the data.
Ms G Breytenbach (DA) said that Clause 26 had not been adequately drafted, because it empowered ‘a police official,’ in accordance with Chapter five, to search for, access or seize any data involved in an offence.
Mr Dingaan Mangena, SLA: DOJCD, replied that if the police official was in the spot where the evidence was located and had reasonable suspicion, then with the consent of the party or the consent of his superior officer, a police official could conduct a search.
The Chairperson requested the DOJCD to address the concerns of Members in terms of Clause 26 and Clause 29, and to re-draft both clauses in the draft Bill.
Mr Mpumlwana said that Clause 29 would be beneficial if a police official could detain the party until a warrant was approved.
Ms Breytenbach asked the DOJCD to clarify who the superior official was that could give a ‘police official’ consent to conduct a search, in line with Clause 26.
Mr Mangena said that he had made the statement in error.
Ms Breytenbach asked the DOJCD to qualify the police official being referred to in both Clauses 26 and 29.
The Chairperson said that the DOJCD had noted the Members’ concerns and would re-draft both Clauses 26 and 29, and asked the team to continue with the brief.
Mr Sarel Robertse, SLA, DOJCD continued with explanations on the Clauses 30-43 in Chapter five. In addition he explained clauses 44-49 which made provisions for mutual legal assistance between South Africa and foreign countries in the investigation of Cybercrime offences as captured in the Draft Bill.
Mr Mangena indicated that Chapter seven, Clause 50, provided for the establishment of a 24/7 point of contact located in the SAPS that offered technical and legal assistance to identify a cybercrime offence and present it in court, while Chapter eight Clause 51 assisted in the proof of evidence in a cybercrime case with the aid of affidavits signed by experts who were not available in the country.
Chapter nine, Clause 52, had been crafted to mandate electronic communications service providers, and financial institutions who were aware of cybercrimes, to report such offences to the SAPS, while Chapter ten, Clauses 53 to 56, dealt with the establishment of the Cyber Response Committee and its structures.
The purpose of Chapter 11, Clause 57, was the protection of critical information infrastructure, while Chapter 12, Clause 59, addressed agreements that the national Executive could enter into with any foreign state for mutual assistance in investigating or prosecuting offences contemplated in the draft Bill. He concluded by reporting that Chapter 13 dealt with the general provisions of the draft Bill.
The Chairperson invited Members to comment on, and question, the presentation. However, they replied that they did not have further comments or questions, so she discharged the DOJCD delegation.
The Chairperson asked the Committee Secretary to inform Members of the other programmes in the quarter.
The Committee Secretary advised Members about a symposium on land reform, and the scheduled oversight visit to the Correctional Services centre in Bloemfontein.
Mr W Horn (DA) observed that the oversight visit was restricted to Correctional Services, but there was nothing for the Justice component of the Committee.
He was advised that an oversight visit to the Correctional Services centre could take the whole day, but the proposal would be considered.
The Chairperson mandated the Committee Secretary to continue with the finalisation of the programme, based on suggestions made by Members.
The meeting was adjourned.