THE PROSECUTION OF CYBERCRIME IN SOUTH AFRICA

The prosecution of cybercrime in South Africa is regulated by the Electronic Communications and Transactions Act 25 of 2002 (“the ECTA”) and the Cybercrimes and Cybersecurity and Related Matters Bill (“the Bill”). Alongside these pieces of legislation exists the common law, as well as the Constitution of the Republic of South Africa, 1996 (“the Constitution”). The ECTA and the Bill are to be read in conjunction with the common law (where it is applicable) and the Constitution in order to obtain a holistic understanding of the improvement of cybersecurity and the prosecution of cybercrimes in South Africa. It should be noted that where the ECTA fails to impose criminal sanctions on cybercrime, the common law sanctions will apply.

The ECTA

The ineffectiveness of the common law to deal with and combat cybercrime led to the promulgation of the ECTA in 2002. The ECTA has as its objective the facilitation and regulation of electronic communications and transactions.

The ECTA deals with cybercrime in Chapter XIII, in which several new cybercrime-related offences were created. These new offences include obtaining unauthorised access to, interception of or interference with data; computer-related extortion, fraud and forgery; and attempt, and aiding and abetting regarding the aforementioned offences.

The ECTA also created the “cyber inspector” who may “enter any premises or access any information that has a bearing on an investigation” into a cybercrime.

The arrival of the ECTA was applauded, as it was an attempt made by the South African legislature to address and improve cybersecurity and to create and prosecute new cybercrimes. However, the ECTA received some criticism and it is generally accepted that there is still room for improvement.

It is argued that the penalties for engaging in cybercrime, as stipulated in section 89 of the ECTA, are not severe enough. This is because it is argued, a person convicted of certain offences in the ECTA can, at most, be liable for a fine or be imprisoned for a period of one year.

For other offences in the ECTA, a person can be liable for a fine or be imprisoned for, at the most, a period not exceeding five years. It is argued that these punishments are not enough of a deterrent to prevent the commission of cybercrimes and that the ECTA should be amended to include harsher penalties. It is also argued that the police, the private sector and academia should be involved in the fight against cybercrime. As noted above, the ECTA created cyber inspectors, though none have been appointed to date, and therefore no actors are currently exercising their power to conduct investigations into cybercrimes.

The Bill

The Bill was promulgated to address the shortcomings of the ECTA, and it is apparent that the Bill has in fact done so.

First, the Bill imposes a fine with a minimum amount of 5 million Rand and a maximum amount of 10 million Rand. The Bill also prescribes a minimum period of imprisonment of five years and a maximum period of imprisonment of 10 years. Moreover, the Bill makes provision for the combined penalty of a fine as well as imprisonment.

Secondly, the Bill addresses the lack of involvement of police, the private sector and academia in the fight against cybercrime in the ECTA by creating several structures to assist in the eradication of cybercrime. These structures include a Cyber Response Committee and a Cybersecurity Centre.

These penalties are considerably stricter than those of the ECTA, and it is believed that the Bill will have a greater deterrent effect on the commission of cybercrimes.

Upon examination of the ECTA and the Bill, as well as the amount of criticism that the respective pieces of legislation have attracted, it becomes apparent that the prosecution of cybercrime in South Africa is not, and will not be, without challenges. This is because these pieces of legislation are grappling simultaneously with an all-new type of criminal activity and the advanced phenomenon called cyberspace. Developing legislation that effectively prosecutes cybercrime will, therefore, take legislatures and experts on cybercrime some time to perfect.

Reference List:

  • Cassim F ‘Addressing the growing spectre of cybercrime in Africa: evaluating measures adopted by South Africa and other regional role players’ 44 CILSA (2011) 123 at 127.
  • Sections 86 to 88 of the ECTA.
  • Section 82(1) of the ECTA.
  • Sections 37(3), 40(2), 58(2), 82(2), 86(1), (2), (3) of the ECTA.
  • Sections 86(4), (5) and section 87 of the ECTA.
  • Van der Merwe D et al Information Communications and Technology Law 2 ed (2016) at 80-81.
  • Section 14 of the Bill.
  • Schultz CB ‘Cybercrime: An Analysis of Current Legislation in South Africa’ (2016) at 35.
  • Chapter 10 of the Bill.

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)

LITTLE WHITE LIES CAN GET YOU INTO BIG TROUBLE

October 2019, was Justice month as Ramaphosa signs in various new laws, one of them being CV Fraud. Do you embellish your curriculum vitae to increase your chances of procuring a new job? A fake matric certificate, inflated education, fake degree certificates and unfinished degrees are some of the common embellishments that are found on a CV.

Ramaphosa signed in the new National Qualifications Framework Amendment Act (hereinafter referred to as the “Act”), which aims to prevent South Africans from mispresenting their qualifications in their curriculum vitae. Misrepresentation of your qualifications persuades the employer to offer you employment under false pretence, as you would probably meet their requirements. Mispresenting yourself on your CV can also be career-limiting, as we live in the digital age, where information is at our fingertips and it will not be long before it is discovered that the qualification or skill is fraudulent.

This Act permits the South African Qualifications Authority to establish and maintain separate registers for professional designations, misrepresented qualifications and fraudulent qualifications. This register will name those who misrepresent themselves and/or fraudulently list false qualifications on their CV. It will also be considered an offence if falsified information is entered into the register, hence if your name is on the register, it will be taken seriously. But the Act goes further, bragging on social media platforms such as Facebook, LinkedIn, etc. that you have a qualification which if found to be false, is now considered a serious offence as well.

The amendments to the Act introduces punitive penalties for those found to be lying in their CV. The penalty for CV Fraud is a fine or up to five years imprisonment.

But the Act has also placed an administrative as well as a monetary burden on employers and educational institutions, skills development providers and quality councils, who before appointing and or registering any person, must verify whether any qualification of such person is registered on the national learners’ record database. Should it be found that the qualification is not registered, it must be referred to the South African Qualifications Authority for verification, who will conduct the verification at a prescribed fee.

The Act makes provision for there to be consequences for education institutions and education skills providers who falsely claim to be registered on the National Qualifications Framework.

Good faith can also get you out of “hot water”. If you did a qualification in good faith believing it was a legitimate qualification, this can be used as a defence if charged with contravening the Act and you may be acquitted and the relevant institution will be charged and may be liable to a fine and criminal conviction.

Do you have an onus to report if you are aware of someone who misrepresented themselves on their CV and does not report them? No, you do not. You will not face legal charges if discovered that you were aware but did not report it.

Examples of top executives that have lied on their CV is Passenger Rail Agency of South Africa (Prasa) suspended its chief engineer, who subsequently resigned amid allegations that he falsified his qualifications. Daniel Mtimkulu headed the engineering team that designed new Afro 4000 locomotives delivered to South Africa in January, at a cost of R600 million. He reportedly claimed to have an engineering degree from the University of the Witwatersrand (Wits), before studying in Germany to get his doctorate. Wits, however, said it did not have any record of Mtimkulu attending the university.

Some other examples to note, include Pallo Jordan, a former South African cabinet minister, who claimed to have a doctorate from the London School of Economics, when he did not; Hlaudi Motsoeneng, SABC COO, claimed to have a matric certificate, which was untrue; and Ellen Tshabalala, former SABC chairperson, who claimed to have postgraduate degrees from UNISA, which remains elusive.

In 2015, a screening company noted that there was a record high of CV Fraud and this could be due to the unemployment rate in South Africa, but one has to ask, is it worth it being unemployed permanently due to fraudulent misrepresentation or achieving a degree and being employed permanently?

Employers be sure to check your potential job applicants and ensure you’re employing the best and legal employees!

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 IMPORTANCE OF MENTORING AND COACHING

Mentoring trends challenge individuals to develop and manage themselves and are becoming an integral part of productive performance and increased learning. It can help in career development, strategic planning, skills development, employment equity and building relationships and leadership potential.

What is mentoring?

Mentoring refers to a partnership between two people with the main aim of development. Usually, the mentor is an experienced individual who shares their knowledge and experiences, while giving advice to a less experienced person, i.e. the mentee. The relationship may be between two people from the same company, industry, or networking organisation.

The value of mentoring programmes

Mentoring programmes are generally focused on achieving a number of objectives for both the individual and the company. These objectives usually include the individual being able to perform specific tasks while their personal and career development needs are also taken into consideration. By means of mentoring programmes, employees get enabled to leverage some of their academic knowledge in the workplace and in addition, they will gain knowledge of an organisation’s culture.

Mentoring serves the purpose of conveying knowledge to inexperienced employees. The idea is to teach employees the core skills they will need to fulfil an efficient role in the workplace. Mentoring can enhance morale, motivation and productivity and reduce staff turnover and hence employers seek mentoring for performance enhancement rather than the correction of a performance issue.

Benefits of mentoring

There are benefits for both mentees and mentors; it is not only the mentee that gains valuable insight. By means of mentoring, both the mentor and mentee will learn to communicate more effectively, especially if they are from different backgrounds. New perspectives and ways of thinking are learnt. Both parties also get the opportunity to work on their leadership skills.

So, whether you’re on the giving or receiving end of a mentoring relationship, either way, it can benefit your career. Mentoring is essential to the work environment and companies should allocate appropriate funds to develop their staff, and as a consequence, their company.

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)

HOLIDAY HOMES ARE NO HOLIDAY

Finding a holiday home isn’t as simple as choosing your favourite holiday spot and packing your bags. With the festive season around the corner, the urge to buy a holiday home may be rising, but a decision like this demands time and careful consideration. Let it simmer. This is not a holiday – this is an investment.

Just like those of us who want to avoid over-crowded beaches and rush-hour-like traffic when travelling, you may want to wait for the off-season. Property prices, as well as both the buyer’s and seller’s expectations, may be affected by the holiday buzz.

Be sure to conduct the necessary research. Owning property in an area is different from simply visiting for a week or two during the holidays. Make sure you choose a location suitable for a home, not just a pit-stop. Consider the area’s liveability both in and out of season. Quite often holiday destinations become ghost towns when the holiday season ends. If that is exactly the peace and quiet you want, perfect! If it’s not, you may want to continue your search, because, contrary to their names, holiday homes can’t only be lived in during holidays.

Homes need constant maintenance and care. Staying close to your holiday home will allow you to break away for weekends, making sure the home receives the necessary attention. If your holiday home is a bit too far from your current residence, consider renting it out for the periods when you are not there. This will ensure your property is well-maintained as well as offering you an extra income. When choosing to rent out your property it becomes especially important to make sure the area provides the necessary amenities for everyday living.

The most important aspect, though, is enjoyment. A holiday home is meant to be enjoyed. Make sure you enjoy yours for the longest possible time by making an informed decision.

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)