Tag Archive | Ministry of Justice

Draft Cybercrime Bill drafts industry

sent to clients 12 October…..

Justice dept to combat cybercrime…..

cybercrimeA draft Cybercrimes and Cybersecurity Bill has been released for public comment by the Ministry of Justice and Constitutional development, proposing to introduce a number of measures to combat cybercrime in South Africa.

With the publication came the worrying but suspected statement that it was estimated  that cyber-related offences are escalating considerably and “currently exceed a value in excess of R1bn annually.” The Minister stated that it was the department’s view that the development of the proposed legislation “was a milestone towards building safer communities as envisaged in the National Development Plan” and aimed at putting in place “a coherent and integrated cybersecurity legislative framework to address various shortcomings which exist in dealing with cybercrime” in South Africa.

Powers

The Bill proposes regulations to allow a national cyber entity, “to investigate, search and access, or seize, as well aspects of international cooperation in respect of the investigation of cybercrime.”

Offences

Offences include “Personal information and financial information related offences; unlawful access; unlawful interception of data; unlawful acts in respect of software or hardware tools; unlawful interference with data; unlawful interference with computer device, computer network, database, critical database, electronic communications network or National Critical Information Infrastructure, unlawful acts in respect of malware; unlawful acquisition, possession, provision, receipt or use of passwords, access codes or similar data or devices; and, finally, any computer related fraud.”

The list of offences continues with “Computer related appropriation; computer related extortion; computer related terrorist activity and related offences; computer related espionage and unlawful access to restricted data; prohibition on dissemination of data message which advocates, promotes or incites hate, discrimination or violence; prohibition on incitement of violence and damage to property; prohibited financial transactions; infringement of copyright; harbouring or concealing person who commits an offence; attempting, conspiring, aiding, abetting, inducing, inciting, instigating, instructing, commanding, or procuring to commit an offence.”

Power of Internet

Whilst the list seems long, the Bill indeed gives some idea of the levels to which cybercrime has nowcybercrime3 reached but it also indicates the many forms of crime have turned to the Internet as a vehicle for criminal activities, both locally and internationally.

In addition, South Africa’s President is being given powers to “enter into agreements with foreign states to promote cyber security.”

The government is to establish what exactly are “national critical information infrastructures” and will provide for the establishment of a “point of contact” and various structures to deal with cyber security. Wording later in the Bill indicates that this will be called the “National Cybercrime Centre”.

National Cybercrime Centre

Once again, the communications industry is called upon to assist and impose “obligations on electronic communications service providers with respect to cyber security.” This is the clause that is bound to cause offence, even rejection because of cost and which appears to ask providers to do the work and with stiff penalties of up to R10,000 a day for every day the matter is not reported to the National Cybercrime Centre.

The clause reads, “An electronic communications service provider that is aware or becomes aware that its computer network or electronic communications network is being used to commit an offence provided for in this Act must (a) immediately report the matter to the National Cybercrime Centre; and (b) preserve any information which may be of assistance to the law enforcement agencies in investigating the offence, including information which shows the communication’s origin, destination, route, time date, size, duration and the type of the underlying services.“

Who is responsible

Earlier this year, at a cybercrime symposium in Johannesburg, the Minister of State Security said, “The Government’s approach in dealing with this matter is premised on the policy principle that national security, which includes the security of the information and communications technologies in the country, is a responsibility of the structures responsible for security in the Republic.”

This statement, when re-read, can obviously work in many ways and the Bill appears to do just this.

Other articles in this category or as background

http://parlyreportsa.co.za/communications/south-africa-needs-international-cybersecurity/

 

 

Posted in Communications, Finance, economic, Justice, constitutional, LinkedIn, Security,police,defence, Special Recent Posts0 Comments

President Zuma determined to push Traditional Courts Bill

Traditional courts mean two legal systems….

contralesa logoMinister of Justice Michael Masutha, has promised the return of the Traditional Courts Bill very shortly setting up a parallel system of justice in rural areas.  Minister Masutha was appointed by President in May 2014 and was answering a parliamentary written question.

The Bill was withdrawn last year in the form proposed.

The fact that the question was put by no lesser than Mathole Motshekga, the African National Congress chief whip and a member of the ANC department of legal and constitutional affairs, indicates a strong desire by President Zuma to see this Bill through during his tenure in office.

In his reply, minister Masutha, previously deputy minister of science and technology stated thejustice minister masutha introduction of the Bill would be accompanied by dialogue with all stakeholders and “the broader public”. The contents of the Bill will be extended to (inter alia) women’s groups, academics and the legal profession, he said.

Bill perceived as chauvinistic by many

The reason for mentioning women’s groups was no doubt specifically for the ears of those who furiously objected to the first version of the Bill including those of his own party and the then minister of justice, Lulu Xingwana.   It was said at the time that president Zuma had proposed the Bill as a trade-off with traditional leaders to get rural support.

opening parliamentOpposition leaders have stated that if the Bill is “anything like the first version it will not have a hope of passing a constitutional test” but, nevertheless, quite clearly justice minister Masutha must believe his new draft has got the wording right.

South Africa will have two legal systems

Whatever happens, the Bill is bound to give rise to objections from many from parties on a number of subjects not only from gender prejudice, to the aspect of legal anomaly and retarding constitutional development.

Dr Buthelezi, in his capacity as leader of the IFP, said of the last Bill that in debate in all nine provinces, five provinces gave mandates to vote to scrap the proposals, only two being favour, and even they did not support all the Bill’s provisions.  In the end, he noted, the Bill did not get past parliamentary committee stage in the NCOP. “Its end marked a major victory for rural people, who have opposed it since 2008”, he said.

Back to 1960

The point raised by Dr Buthelezi at the time was that such law that “would bring back oppression byLesedi traditional unaccountable leaders, many of whom were apartheid appointees, and it would also mean that the government is not committed to the equal citizenship as promised by the Constitution.”

His complaint was that the Traditional Leadership and Governance Framework Act of 2003 “locked rural people into the tribal boundaries created by the 1961 Bantu Authorities Act.”

“So now we not only have the resuscitation of the boundaries of the old bantustans but it is proposed that the chiefs are a fourth sphere of government within them.”   This, he concluded, was despite of the striking down by theof 2004 which gave control of land to traditional councils.

Bill “mediaeval”

lulu xingwanaLulu Xingwana said, as minister of justice at the time, said the proposals made in the Bill “took the issue of women’s rights back into mediaeval times”. Justice Minister Masutha, who will has tabled the Bill, comes himself from a small rural village in North Limpopo.  He studied for a BJuris degree at the University of Limpopo (then the University of the North) from 1985 to 1988, and obtained an LLB Degree from the University of the Witwatersrand in 1989.

Posted in Cabinet,Presidential, Facebook and Twitter, Justice, constitutional, LinkedIn, Special Recent Posts0 Comments

Criminal Procedure Bill defines use of deadly force on arrest

Bill supported unaminously in Parliament

Parliament has approved the Criminal Procedure Act Amendment Bill which will provide better rules on how deadly force may be used to carry out an arrest and guidelines on forcible arrests in general on schedule one crimes.

Currently, a hiatus exists because SAPS has difficulty in interpreting the section of law dealing with arrests of persons suspected of having committed murder, culpable homicide and rape if a killing should take place if the persons could not be arrested or prevented from fleeing in any other way.

The new Bill draws on a Constitutional Court guideline to the effect that the law recognises that force must always be reasonably necessary and proportional in the circumstances, and deadly force, including shooting, may in addition be used only if the suspect poses a threat of serious violence to the arrester or another person or persons; or if the suspect is reasonably suspected of having committed a crime involving serious bodily harm, and there are no other reasonable means of arresting him at that time or later.

This means that the killing, usually shooting, of a suspect in order to carry out an arrest is acceptable in a court of law under very limited circumstances but such limitations do not detract from an arrester’s rights to kill a suspect in self-defence or in defence of another person.   The bill was supported unanimously, the cabinet having earlier called for an urgent attempt to give SAPS clarity on their position.

Posted in Justice, constitutional, Security,police,defence, Uncategorized0 Comments


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