| (1) |
Acomplainant (hereinafter referred to as the applicant) who lays a charge with the South African Police Service that an offence contemplated in section 14, 15 or 16 has allegedly been committed against them, may on an ex parte basis in the prescribed form and manner, apply to a magistrate’s court for a protection order pending the finalisation of the criminal proceedings to— |
| (a) |
prohibit any person to disclose or further disclose the data message which relates to the charge; or |
| (2) |
The court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (1) and may, for that purpose, consider any additional evidence it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings. |
| (3) |
If the court is satisfied that there— |
| (a) |
is prima facie evidence that an offence referred to in section 14, 15 or 16, has allegedly been committed against the applicant; and |
| (b) |
are reasonable grounds to believe that a person referred to in subsection (1)(a) disclosed the data message in question; or |
| (c) |
are reasonable grounds to believe that the electronic communications service of the electronic communications service provider referred to in subsection (1)(b), is used to host or was or is used to disclose the data message in question, |
the court may, subject to such conditions as the court may deem fit, issue the order referred to in subsection (1), in the prescribed form.
| (4) |
The order, referred to in subsection (3), must be served on the person referred to in subsection (1)(a) or electronic communications service provider referred to in subsection (1)(b), in the prescribed manner: Provided, that if the court is satisfied that the order cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form or manner specified in that order. |
| (5) |
An order referred to in subsection (3) is of force and effect from the time it is issued by the court and the existence thereof has been brought to the attention of the person referred to in subsection (1)(a) or electronic communications service provider referred to in subsection (1)(b). |
| (6) |
A person referred to in subsection (1)(a), other than the person who is accused of having committed the offence in question, or an electronic communications service provider referred to in subsection (1)(b), may, within 14 days after the order has been served on them in terms of subsection (4) or within such further period as the court may allow, upon notice to the magistrate’s court concerned, in the prescribed form and manner, apply to the court for the setting aside or amendment of the order referred to in subsection (3). |
| (a) |
The court must as soon as reasonably possible consider an application submitted to it in terms of subsection (6) and may, for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings. |
| (b) |
The court may, if good cause is shown for the variation or setting aside of the protection order, issue an order to this effect. |
| (8) |
The court may, for purposes of subsections (2) and (7), in the prescribed form and manner cause to be subpoenaed any person as a witness at those proceedings or to provide any book, document or object, if the evidence of that person or book, document or object appears to the court essential to the just decision of the case. |
| (9) |
Any person referred to in subsection (1)(a) or an electronic communications service provider, referred to in subsection (1)(b), that fails to comply with an order referred to in subsection (3) or any variations thereof, is guilty of an offence. |
| (10) |
Any person who is subpoenaed in terms of subsection (8) to attend proceedings and who fails to— |
| (a) |
attend or to remain in attendance; |
| (b) |
appear at the place and on the date and at the time to which the proceedings in question may be adjourned; |
| (c) |
remain in attendance at those proceedings as so adjourned; or |
| (d) |
produce any book, document or object specified in the subpoena, |
is guilty of an offence.
| (12) |
For purposes of this section and sections 21 and 22 ‘‘to host a data message’’ means to store the data message on an electronic communications network that is used to provide an electronic communications service, where it can be viewed, copied or downloaded. |
National Small Business Act, 1996 (Act 102 of 1996)
