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THE CYBERCRIMES BILL: MALICIOUS MESSAGING OVER SOCIAL MEDIA COULD SEND YOU TO JAIL

THE CYBERCRIMES BILL: MALICIOUS MESSAGING OVER SOCIAL MEDIA COULD SEND YOU TO JAIL

South Africans will soon have to be much more careful and think twice about the messages they send over WhatsApp and other social media platforms, as the Cybercrimes Bill (“the Bill”), which was recently adopted into law and is in the process of being enacted, attempts to police malicious messaging.

Cybercrime is on the rise and the Bill essentially aims to stop these acts, to keep people safe from criminals and terrorists, to improve the security of the country and to bring South Africa in line with other countries’ cyber laws. The practical impact of the Bill on all organisations and individuals are significant and unfortunately mostly negative. It impacts all of us who process data or use a computer.

Contravening the provisions entailed in the Bill could lead to a fine or imprisonment for a period not exceeding three years, or to both a fine and imprisonment. The Bill fundamentally intends to curb the number of harmful messages, which by definition now covers a wide range of subject areas, that do the rounds on social media.

The Bill incriminates, amongst others, the following acts in particular:

  • Disrupting another’s personal details: By sharing another’s personal details online for malicious purposes, without their knowledge and/or consent.
  • Unlawful sharing of intimate images: Publishing and/or distributing another’s nude intimate images or multimedia files of an intimate nature will constitute a harmful disclosure of pornography, which the Bill seeks to regulate. The Bill describes an “intimate image” as both real and simulated messages which shows the person as nude or displays his/her genital organs or anal region. This includes instances where the person is identifiable through descriptions in a message or from other information displayed in the data message. These acts can cause extensive reputational damage to another, especially if the said person had no intention of making it public.
  • Sharing of information regarding investigations into cybercrimes: The Bill enables the Minister of Justice to make regulations on information sharing. This includes sharing information on cybersecurity incidents, detecting, preventing and investigating cybercrimes.
  • Inticing damage to property belonging to “a group of persons”: Sharing messages which encourage people to damage property belonging to a certain demographic group, could lead to an arrest simply for the incitement rather than the act. This act includes any implied threats of violence against “a group of persons”.

The Bill was first published on 28 August 2015, updated on 19 January 2017 and introduced in Parliament on 22 February 2017, where it currently still sits. There have been extensive comments on the Bill during the public participation period in 2017. These comments have been considered and incorporated and the latest version of the Bill was published on 23 October 2018. The new version of the Bill creates many new offences, some relating to data, messages, computers and networks.

The Bill has come a long way since its first publication and the overall effect of its provisions will be tested over time. Readers are, however, advised to take note of the Bill and its consequences before it is signed into law, as ignorance of the law will not be an excuse.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE CANNABIS JUDGMENT: IS IT LEGAL NOW?

THE CANNABIS JUDGMENT: IS IT LEGAL NOW?

Cannabis has historically been criminalised in South Africa. It has, until recently, been a criminal offence to possess, cultivate or use cannabis. However, this position has been drastically altered by a ground-breaking unanimous judgment by the Constitutional Court in the case of Minister of Justice and Constitutional Development and Others v Prince.

This case came before the Constitutional Court as part of confirmatory proceedings in terms of section 167(5) of the Constitution after the Western Cape High Court declared certain sections of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act inconsistent with the right to privacy as enshrined in section 14 of the Constitution. The Court furthermore ordered Parliament to cure this constitutional defect within 24 months.

The right to privacy can be defined as the right to live and enjoy one’s life with a minimum of interference. Deputy Chief Justice Raymond Zondo who penned the Constitutional Court’s judgment agreed with this definition when he stated that, “It can legitimately be said that the right to privacy is a right to be left alone.” This case thus essentially raised the question of whether or not the State can interfere with what you do in private if such private act does not adversely affect others. The Court found the privacy argument convincing and accordingly found that the prohibition of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption is inconsistent with the right to privacy provided for in section 14 of the Constitution.

It is important to note that the Court did not legalise cannabis as a substance. It was merely decriminalised to the extent that adults may now grow their own cannabis and use it in a private space. The Court, with reference to the cultivation thereof, stated:

“An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”

The Court did not, however, state what would constitute a private space for purposes of using or cultivating cannabis. It is thus unclear whether or not a private space is limited to one’s dwelling or whether it can include spaces such as motor vehicles or other privately-owned spaces such as restaurants or festival grounds. This is thus something that Parliament will most probably clear up when enacting the legislation as discussed above.

It is of utmost importance to note that the commercialisation of cannabis has not been legalised. It is thus still a criminal offence to cultivate cannabis for commercial purposes or to trade with cannabis. The Court stated in this regard that, “[D]ealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy.” The right to privacy as it relates to the use of cannabis is furthermore limited in that the use thereof in the presence of children or non-consenting adults are also still prohibited and thus a criminal offence.

The judgment is very vague as to how much cannabis a person may possess. However, it is advisable in this regard not to cultivate or possess large quantities of it since the Court stated that:

“In determining whether or not a person is in possession of cannabis for a purpose other than for personal consumption, an important factor to be taken into account will be the amount of cannabis found in his or her possession. The greater the amount of cannabis of which a person is in possession of, the greater the possibility that it is possessed for a purpose other than for personal consumption.”

It is clear from the above that there is still a lot of legal uncertainty regarding the legality of cannabis use. Vishnu Naidoo, a national police spokesperson, said that the relevant authorities are currently busy formulating a directive to its members as to what they should do when encountering someone who has cannabis in his or her possession. This will give us some certainty, but complete legal certainty will only be attained once Parliament has done its job.

Reference List:

  • Minister of Justice and Constitutional Development and Others v Prince
  • https://www.dailymaverick.co.za/opinionista/2018-09-18-concourt-cannabis-judgment-what-was-the-reasoning-and-what-does-it-mean/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN THE POLICE SEARCH A PERSON WITHOUT A WARRANT OF ARREST?

CAN THE POLICE SEARCH A PERSON WITHOUT A WARRANT OF ARREST?

This article focuses on primarily whether the police may search a person without a warrant of arrest. On the face of it, it would appear that the search and seizure of a person and premises are in contravention with the Bill of Rights, more specifically section 14 of the Constitution of the Republic of South Africa.

With the enactment of the Constitution, there have been a number of constraints on search and seizure powers by police officials. Section 14(a) of the Constitution specifically protects the right not to have a person or their home searched. A person’s home, it is widely accepted, constitutes the highest expectation of privacy. According to section 36 of the Constitution, rights in the Bill of Rights may be limited by a law of general application, if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The Criminal Procedure Act allows the police to search any person or any container or premise of that person without a search warrant. It also allows the police to seize any article reasonably believed to have been used to commit a crime or that is reasonably believed to be evidence that could assist the state in proving that an offence was committed. This can be done only if the owner gives consent for the search or if the police officer has reasonable grounds to believe that a search warrant would have been issued and a delay in conducting the search would have defeated the purpose of the search and seizure operation.

What this essentially means is that a police officer can search you personally or can search your car or house even when no search warrant was obtained and even when you did not give permission for such a search. However, such a type of search without a warrant can only be executed where there are reasonable grounds to believe that a search warrant will be issued to the relevant police official should he apply for it and that the delay in obtaining such warrant would defeat the object of the search.

According to the relevant case law, a police officer must have a reasonable suspicion that a person committed an offence or that a person is in possession of an article used or to be used in the commission of an offence. A mere assertion by a police officer that he or she had such a suspicion without any evidence to back it up will not do. This means that where a police officer stops you in the street and decides that you are a drug dealer merely because of your appearance, he or she will not be able to merely argue that there is a reasonable suspicion that you committed an offence or are in possession of an article used in the commission of an offence and, hence, will not be entitled to search you.

In terms of the South African Police Act 68 of 1995 the National or Provincial Commissioner may where it is reasonable in the circumstances in order to exercise a power or to perform a function of the service, authorise in writing a member under his command to set up roadblocks on any public road. Any member of the South African Police Service may, without a warrant, search any vehicle at such a roadblock. However, such a search without a warrant in a roadblock may only be conducted upon the written authorisation by the National or Provincial Commissioner of the South African Police Service.

It is of paramount importance that a police official exercise his or her discretion in conducting a search without a warrant carefully and does not infringe a person’s right to privacy as entrenched in section 14 of the Constitution. It is also important to note that a search and seizure by a police official must be reasonable and justifiable in terms of the Constitution.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

  • The Criminal Procedure Act 57 of 1977
  • The South African Police Service Act 68 of 1995
  • The Constitution of the Republic of South Africa,1996
  • Geldenhuys T,The Criminal Procedure Handbook, Juta, August 2010
CONFLICTING STATEMENTS IN COURT

CONFLICTING STATEMENTS IN COURT

With the number of videos being leaked on social media, regarding situations of assault, defamation and hate speech, it becomes that much easier for the defendant to be found guilty of such a crime as the proof is right there. The challenge comes with hearsay of contradictory statements, and the judge will then have to reach a decision based on probabilities of both the plaintiff and the defendant.

Bota v Minister of Police (3910/2015) [2017] ZAECGHC 122 (16 November 2017)

In this case law, the plaintiff instituted an action for damages against the defendant, Minister of Police, for injuries sustained when he was allegedly assaulted by members of the South African Police Service (SAPS). He testified that the SAPS employees held him and assaulted him with fists and open hands. Upon trying to cover his face, he was accused of resisting arrest and was tackled to the ground. His bodily injuries were: a fracture of the right leg, various other soft tissue injuries, bruises and abrasions.

The assault was denied by the defendant, indicating that it was, in fact, the plaintiff, allegedly inebriated at the time, who assaulted the SAPS employees. When the plaintiff called out a police officer’s name, and the officer he thought he was calling did not respond, he began swearing at the officers who were sitting in a Kombi. The defendant also pleads that the injuries sustained by the plaintiff were caused by his fall while running away from the employees after he swore at them.

In the court, three witnesses testified in support of the plaintiff, and two testifies on behalf of the defendant. One of the plaintiff’s witnesses failed to add to their statement that the plaintiff was tackled to the ground, and the omission of such an action raised inconsistency in the said witness’ testimony.

Reaching a conclusion

To come to a conclusion on the disputed issues, a court must make findings on:

  • the credibility of the various factual witnesses;
  • their reliability; and
  • the probabilities.

The Court will weigh up and test the plaintiff’s allegations against the general probabilities to determine whether the evidence is true or not. If the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true.

The main question is, what are the probabilities of the plaintiff and his witness omitting to mention the tackling in their statements to the police if this had occurred? The judge came to the conclusion that the defendant’s version is the most probable, and the plaintiff’s claim against the defendant is dismissed with costs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Southern African Legal Information Institute. (2017). Bota v Minister of Police (3910/2015) [2017] ZAECGHC 122 (16 November 2017). [online] Available at: http://saflii.org/za/cases/ZAECGHC/2017/122.html [Accessed 20 Nov. 2017].

WHAT HAPPENS AFTER SOMEONE IS ARRESTED FOR A CRIME?

WHAT HAPPENS AFTER SOMEONE IS ARRESTED FOR A CRIME?

Arrest is one of the lawful methods of securing the attendance of an accused person in court. It is also the most drastic method. Section 38 of the Criminal Procedure Act states that methods of securing attendance of an accused person include:

  1. Arrest;
  2. Summons;
  3. Written notice; and
  4. Indictment.

The basic principle of South African criminal procedure is that of access to courts, in accordance with section 34 of the Constitution.

When can a person be arrested?

A person may be arrested either on the strength of a warrant of arrest or when a police officer witnesses a person committing an offence or has probable cause to believe that a person was involved in the commission of a crime.

What rights does a person have when arrested?

If someone has, or is in the process of being arrested, they have the right to be informed of the charges on which they are being arrested. Most importantly, they have the right to remain silent, to be informed promptly of such right and the consequences of not remaining silent. Any information uttered or willingly given to an officer may be used against them in court.

  1. A person has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after being arrested.
  2. If the period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the accused must be brought before a court not later than the end of the first following court day.

After an arrest a person will, more often than not, be detained at a police station. In detention, you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search.

What rights does a person have when being detained?

When being detained, a person must be informed promptly of the reason.

  • The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.
  • Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights.
  • Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.
  • Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner.
  • Be presumed innocent until proven guilty. 

Police bail and warning

For minor offences ’police bail’ can be granted or the police may release a detainee on a warning. In the case of police bail, the investigating officer will propose an amount for bail and an agreement should then be reached on the amount of bail.

After payment of this amount the arrested person may be released from custody. There should always be an officer on duty of sufficient rank to make the decision to grant or refuse police bail.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference

http://www.daff.gov.za/doaDev/sideMenu/ForestryWeb/webapp/Documents/ForestFire/192.168.10.11/nvffa.nsf/4d2641997589c2e342256d72003e35fc/8ac6623a9dbe92ca42256ea700447f8302ec.html?OpenDocument

https://www.saps.gov.za/faqdetail.php?fid=8