[Home] [Databases] [WorldLII] [Search] [Feedback]
South African Law Commission

You are here: SAFLII >> Databases >> South African Law Commission >> Discussion Paper >> 99 >> Annexure A:

[Database Search] [Name Search] [Previous] [Download] [Help]

Annexure A:

Proposed Computer Misuse Bill

B I L L

To prevent unlawful access to computer material,

ARRANGEMENT OF SECTIONS

Section

Chapter 1 Interpretation 1

Chapter 2 Offences 2 - 6

Chapter 3 Procedural provisions 7 - 9

Chapter 4 General proviosions 10 - 11

B E IT ENACTED BY THE PARLIAMENT O FTHE REPUBLIC OF SOUTH AFRICA AS FOLLOWS: –

CHAPTER 1

INTERPRETATION

DEFINITIONS AND INTERPRETATION

. IN THIS ACT, UNLESS THE CONTEXT INDICATES OTHERWISE—

“ACCESS” IN RELATION TO AN APPLICATION OR DATA MEANS RENDERING THAT APPLICATION OR DATA, BY WHATEVER MEANS, IN A FORM THAT WOULD ENABLE A PERSON, AT THE TIME WHEN IT IS SO RENDERED OR SUBSEQUENTLY, TO TAKE ACCOUNT OF THAT APPLICATION OR DATA AND INCLUDES USING THE APPLICATION OR DATA OR HAVING IT OUTPUT FROM THE COMPUTER SYSTEM IN WHICH IT IS HELD IN A DISPLAYED OR PRINTED FORM, OR TO A STORAGE MEDIUM OR BY MEANS OF ANY OTHER OUTPUT DEVICE, WHETHER ATTACHED TO THE COMPUTER SYSTEM IN WHICH THE APPLICATION OR DATA ARE HELD OR NOT;
“APPLICATION” MEANS A SET OF INSTRUCTIONS THAT, WHEN EXECUTED IN A COMPUTER SYSTEM, CAUSES A COMPUTER SYSTEM TO PERFORM A FUNCTION, AND INCLUDES SUCH A SET OF INSTRUCTIONS HELD IN ANY REMOVABLE STORAGE MEDIUM WHICH IS FOR THE TIME BEING IN A COMPUTER SYSTEM;
“COMPUTER SYSTEM” MEANS AN ELECTRONIC, MAGNETIC, OPTICAL, ELECTROCHEMICAL, OR OTHER DATA PROCESSING DEVICE, OR A GROUP OF SUCH INTERCONNECTED OR RELATED DEVICES, ONE OR MORE OF WHICH IS CAPABLE OF—
CONTAINING DATA; OR
PERFORMING A LOGICAL, ARITHMETIC, OR ANY OTHER FUNCTION IN RELATION TO DATA;
“DATA” MEANS ANY REPRESENTATION OF INFORMATION, KNOWLEDGE, FACTS OR CONCEPTS, CAPABLE OF BEING PROCESSED IN A COMPUTER SYSTEM, AND INCLUDES SUCH A REPRESENTATION HELD IN ANY REMOVABLE STORAGE MEDIUM WHICH IS FOR THE TIME BEING IN A COMPUTER SYSTEM; AND
“INVESTIGATING OFFICIAL” MEANS ANY LAW ENFORCEMENT OFFICER OR OTHER OFFICIAL OF THE STATE INVESTED BY ANY LAW WITH THE DUTY TO DETECT, INVESTIGATE OR UNCOVER THE COMMISSION OF AN OFFENCE, OR TO PREVENT THE COMMISSION OF ANY OFFENCE.

CHAPTER 2

OFFENCES

UNAUTHORISED ACCESS TO OR OBTAINING OF APPLICATIONS OR DATA IN COMPUTER SYSTEM

. ANY PERSON WHO INTENTIONALLY AND WITHOUT AUTHORITY TO DO SO, ACCESSES OR OBTAINS ANY APPLICATION OR DATA HELD IN A COMPUTER SYSTEM, IS GUILTY OF AN OFFENCE.

UNAUTHORISED MODIFICATION OF APPLICATIONS OR DATA IN COMPUTER SYSTEM

. (1) ANY PERSON WHO INTENTIONALLY AND WITHOUT AUTHORITY TO DO SO, PERFORMS AN ACT CAUSING ANY APPLICATION OR DATA HELD IN A COMPUTER SYSTEM TO BE MODIFIED, DESTROYED OR ERASED OR OTHERWISE RENDERED INEFFECTIVE IS GUILTY OF AN OFFENCE.

ANY PERSON WHO INTENTIONALLY AND WITHOUT AUTHORITY TO DO SO INSERTS ANY APPLICATION OR DATA IN A COMPUTER SYSTEM IS GUILTY OF AN OFFENCE.

DEVELOPMENT AND TRAFFICKING IN DEVICES OR APPLICATIONS PRIMARILY USED TO OBTAIN UNAUTHORISED ACCESS

4. ANY PERSON WHO, WITHOUT LAWFUL JUSTIFICATION, DEVELOPS, MANUFACTURES, PRODUCES, IMPORTS, EXPORTS, PROCURES FOR USE, OR MAKES AVAILABLE, A DEVICE OR APPLICATION DESIGNED OR ADAPTED TO MAKE IT PRIMARILY USEFUL FOR ACCESSING OR FOR MODIFYING, DESTROYING OR ERASING OR OTHERWISE RENDERING INEFFECTIVE AN APPLICATION OR DATA HELD IN A COMPUTER SYSTEM WITHOUT AUTHORITY TO ACCESS, MODIFY, DESTROY OR ERASE OR OTHERWISE RENDER INEFFECTIVE THAT APPLICATION OR DATA, IS GUILTY OF AN OFFENCE.

TRAFFICKING IN COMPUTER PASSWORDS

5. ANY PERSON WHO MAKES AVAILABLE ANY PASSWORD OR SIMILAR INFORMATION BY MEANS OF WHICH AN APPLICATION OR DATA HELD IN A COMPUTER SYSTEM CAN BE ACCESSED WITHOUT AUTHORITY TO ACCESS THAT APPLICATION OR DATA, IS GUILTY OF AN OFFENCE.

INTERFERENCE WITH USE OF COMPUTER SYSTEM

6. ANY PERSON WHO—

(A) PREVENTS OR HINDERS ACCESS TO ANY APPLICATION OR DATA IN A COMPUTER SYSTEM;

(B) IMPAIRS THE EFFECTIVENESS OR RELIABILITY OF ANY APPLICATION OR DATA IN A COMPUTER SYSTEM, OR

(C) IMPAIRS THE OPERATION OF A COMPUTER SYSTEM,

IS GUILTY OF AN OFFENCE.

CHAPTER 3

PROCEDURAL PROVISIONS

SEARCH AND SEIZURE

7. (1) THE STATE MAY SEIZE ANY COMPUTER SYSTEM OR TAKE ANY SAMPLES OR COPIES OF APPLICATIONS OR DATA–

(A) THAT IS CONCERNED IN OR IS ON REASONABLE GROUNDS BELIEVED TO BE CONCERNED IN THE COMMISSION OR SUSPECTED COMMISSION OF AN OFFENCE, WHETHER WITHIN THE REPUBLIC OR ELSEWHERE;

(B) THAT MAY AFFORD EVIDENCE OF THE COMMISSION OR SUSPECTED COMMISSION OF AN OFFENCE, WHETHER WITHIN THE REPUBLIC OR ELSEWHERE; OR

(C) THAT IS INTENDED TO BE USED OR IS ON REASONABLE GROUNDS BELIEVED TO BE INTENDED TO BE USED IN THE COMMISSION OF AN OFFENCE.

(2) SUBJECT TO SUBSECTION (5), A COMPUTER SYSTEM REFERRED TO IN SUBSECTION (1) MAY BE SEIZED, OR SAMPLES OR COPIES OF APPLICATIONS OR DATA REFERRED TO IN THAT SUBSECTION MAY BE TAKEN, ONLY BY VIRTUE OF A SEARCH WARRANT.

(3) THE PROVISIONS OF SECTION 21 OF THE CRIMINAL PROCEDURE ACT, 1977 (ACT NO. 51 OF 1977) SHALL APPLY WITH THE NECESSARY CHANGES TO THE ISSUE AND EXECUTION OF A SEARCH WARRANT REFERRED TO IN SUBSECTION (2).

(4) AN INVESTIGATING OFFICIAL EXECUTING A SEARCH WARRANT REFERRED TO IN SUBSECTION (2), MAY-

(A) AT ANY TIME SEARCH FOR, HAVE ACCESS TO, AND INSPECT AND CHECK THE OPERATION OF ANY COMPUTER SYSTEM, APPLICATION OR DATA IF THAT OFFICIAL ON REASONABLE GROUNDS BELIEVES IT TO BE NECESSARY TO FACILITATE THE EXECUTION OF THAT SEARCH WARRANT; AND

(B) REQUIRE ANY PERSON HAVING CHARGE OF, OR BEING OTHERWISE CONCERNED WITH THE OPERATION, CUSTODY OR CARE OF A COMPUTER SYSTEM, APPLICATION OR DATA TO PROVIDE HIM OR HER WITH THE REASONABLE ASSISTANCE THAT MAY BE REQUIRED TO FACILITATE THE EXECUTION OF THAT SEARCH WARRANT.

(5) AN INVESTIGATING OFFICIAL MAY WITHOUT A SEARCH WARRANT REFERRED TO IN SUBSECTION (2) SEIZE ANY COMPUTER SYSTEM OR TAKE ANY SAMPLES OR COPIES OF APPLICATIONS OR DATA OR PERFORM ANY OF THE ACTIONS REFERRED TO IN SUBSECTION (4)–

(A) IF THE PERSON HAVING CHARGE OF, OR BEING OTHERWISE CONCERNED WITH THE OPERATION, CUSTODY OR CARE OF A COMPUTER SYSTEM, APPLICATION OR DATA CONSENTS THERETO; OR

(B) IF THAT OFFICIAL ON REASONABLE GROUNDS BELIEVES–

(I) THAT A SEARCH WARRANT WILL BE ISSUED UNDER SUBSECTION (2) IF HE OR SHE APPLIES FOR SUCH A WARRANT; AND

(II) THAT THE DELAY IN OBTAINING SUCH A WARRANT WOULD DEFEAT THE OBJECT OF THE SEARCH.

(6) IN SEIZING ANY COMPUTER SYSTEM OR TAKING ANY SAMPLES OR COPIES OF APPLICATIONS OR DATA OR PERFORMING ANY OF THE ACTIONS REFERRED TO IN SUBSECTION (4), WHETHER BY VIRTUE OF A SEARCH WARRANT OR IN TERMS OF SUBSECTION (5) AN INVESTIGATING OFFICIAL SHALL HAVE DUE REGARD FOR THE RIGHTS AND INTERESTS OF ANY PERSON AFFECTED THEREBY TO CARRY ON HIS OR HER NORMAL ACTIVITIES.

(7) ANY PERSON WHO OBSTRUCTS, HINDERS OR THREATENS AN INVESTIGATING OFFICIAL IN THE PERFORMANCE OF HIS OR HER DUTIES OR THE EXERCISE OF HIS OR HER POWERS IN TERMS OF THIS SECTION, IS GUILTY OF AN OFFENCE.

EVIDENCE

8. (1) NOTWITHSTANDING THE PROVISIONS OF ANY LAW, INFORMATION IN ANY MEDIUM, INCLUDING BUT NOT CONFINED TO DATA OR COMPUTER OUTPUT, SHALL BE ADMISSIBLE AS EVIDENCE OF ANY FACT STATED THEREIN IN ANY CRIMINAL PROCEEDINGS IN TERMS OF THIS ACT, IF IT IS SHOWN–

(A) THAT A STANDARD OR BEST PROCEDURE, ACCEPTABLE TO THE COURT, HAS BEEN FOLLOWED IN OBTAINING THE INFORMATION CONCERNED;

(B) IN THE EVENT OF ANY DEPARTURE FROM SUCH PROCEDURE WHICH, IN THE OPINION OF THE COURT, IS NOT GRAVELY PREJUDICIAL TO THE ACCUSED, SUCH INFORMATION SHALL STILL BE ADMISSIBLE AS EVIDENCE, BUT THE COURT MAY THEN ATTACH CORRESPONDINGLY LESS WEIGHT TO SUCH EVIDENCE.

(2) FOR THE PURPOSES OF DECIDING ON THE ADMISSIBILITY AND WEIGHT OF THE EVIDENCE REFERRED TO IN SUBSECTION (1), THE COURT MAY DRAW ANY REASONABLE INFERENCES FROM THE CIRCUMSTANCES IN WHICH THE APPLICATION OR DATA WAS FOUND, OR WAS ORIGINALLY MADE OR CAME INTO BEING.

TERRITORIAL JURISDICTION

9. (1) THE PROVISIONS OF THIS ACT SHALL APPLY IN RELATION TO ANY PERSON, WHATEVER HIS OR HER NATIONALITY OR CITIZENSHIP, OUTSIDE OR WITHIN THE REPUBLIC IF—

(A) THAT PERSON WAS WITHIN THE REPUBLIC AT THE TIME THE OFFENCE WAS COMMITTED; OR

(B) THE RELEVANT COMPUTER SYSTEM, APPLICATION OR DATA WAS WITHIN THE REPUBLIC AT THAT TIME.

(2) IF AN OFFENCE UNDER THIS ACT WAS COMMITTED BY ANY PERSON OUTSIDE THE REPUBLIC, THAT PERSON MAY BE DEALT WITH AS IF THE OFFENCE WAS COMMITTED WITHIN THE REPUBLIC.

CHAPTER 4

GENERAL PROVISIONS

PENALTIES

10. (1) ANY PERSON CONVICTED OF AN OFFENCE CONTEMPLATED IN SECTION 2 OR 7(7) SHALL BE LIABLE TO A FINE, OR TO IMPRISONMENT FOR A PERIOD NOT EXCEEDING 5 YEARS.

(2) ANY PERSON CONVICTED OF AN OFFENCE CONTEMPLATED IN SECTION 3, 4, 5 OR 6 SHALL BE LIABLE TO A FINE, OR TO IMPRISONMENT FOR A PERIOD NOT EXCEEDING 10 YEARS.

SHORT TITLE AND COMMENCEMENT

11. (1) THIS ACT SHALL BE CALLED THE COMPUTER MISUSE ACT, 200..., AND SHALL COME INTO OPERATION ON A DATE FIXED BY THE PRESIDENT IN THE GAZETTE.

SAFLII: | | Terms of Use | Feedback
URL: http://www.saflii.org/za/other/zalc/dp/99/99-Annexure.html