| (1) |
In this section and the rules thereto, unless the context otherwise indicates, the following words and phrases, and their grammatical variations where applicable, shall have the following meanings: |
"access", means gaining entry into, instructing or communicating with the logical, arithmetical or memory function resources of a computer, computer system or computer network;
"addressee", means a person who is intended by the originator to receive the electronic message, but does not include an intermediary;
"affixing a digital signature", means adoption of a methodology or procedure by a person for the purposes of authenticating an electronic record by means of a digital signature;
"computer", means any electronic, magnetic, optical or other high speed data processing device or system which performs logical, arithmetic and memory functions by manipulation of electronic, magnetic or optical impulses and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or a computer network;
"computer network", means the interconnection of one or more computers through—
(i) the use of satellite, microwave, terrestrial line or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained;
"computer system", means a device or collection of devices, including input and output devices and capable of being used with external files which contain computer programmes, electronic instructions, input and output data that performs logic, arithmetic, data storage and retrieval, communication control and other functions;
"data", means a representation of information, knowledge, facts, concepts or instructions which are being or have been prepared in a formalised manner and is intended to be processed, is being or has been processed in a computer system or network and may be in any form (including computer printouts, magnetic optical storage media, punched cards and punched tapes) or stored internally in the memory of the computer;
"digital signature", means an electronic signature allocated to a registered user for authentication of electronic records in conformity with the requirements prescribed in this section, the rules and the user agreement;
"electronic form", with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, or similar device;
"electronic record", means data recorded or generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche;
"function" in relation to a computer, includes logic, control arithmetical process, deletion, storage and retrieval and communications or telecommunication from or within a computer;
"information", includes data, text, images, sound, voice, code, computer programmes, software and databases or microfilm or computer generated microfiche;
"intermediary", with respect to any particular electronic message, means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;
"originator", means a person who sends, generates, stores or transmits any electronic message to be sent, generated, stored or transmitted to any other person, but does not include an intermediary;
"registered user" means a person registered in terms of the provisions of subsection (3);
"user agreement", means the agreement entered into between the registered user and the Commissioner.
| (a) |
The Commissioner may, notwithstanding anything to the contrary in this Act contained, establish and maintain a computer system for the purposes of the electronic processing of any document and procedure to which this Act relates and matters incidental thereto, which may include— |
| (i) |
the receipt and processing of reports and other documents relating to the arrival and departure of ships, aircraft, vehicles and railway trains and their passengers and cargo and the control of such passengers or cargo; |
| (ii) |
the accounting for the receipt, clearance and release of goods, the storage of goods in customs and excise warehouses or other places and the removal or carriage of goods for any purpose under this Act; and |
| (iii) |
the production or manufacture of any goods and the accounting therefor in compliance with any procedure prescribed under this Act. |
| (b) |
No person shall communicate with the Commissioner, a Controller or any officer for any purpose to which this section relates by computer unless such person is a registered user who has entered into a user agreement and complies with any other requirements prescribed under this Act. |
| (c) |
Any such user may access the computer system of the Commissioner for purposes of electronically communicating with the Commissioner, a Controller or an officer to the extent specified in the user agreement provided the computer system of the Commissioner can accept the communication. |
| (d) |
The Commissioner may require by rule any person or class of persons, participating in any activity regulated by this Act, unless exempted in such rule, to communicate electronically and register as a user in accordance with the provisions of this section. |
| (a) |
Application for registration as a user shall be in the form and shall be accompanied by a practice statement and the completed user agreement prescribed by rule. |
| (b) |
The applicant shall comply with— |
| (i) |
all the requirements specified in such form and in subsection (5); |
| (ii) |
any additional requirements that may be prescribed in the rules and as may be determined by the Commissioner; |
| (iii) |
the requirements specified in the user agreement. |
| (4) |
The Commissioner may set out in such agreement— |
| (a) |
any terms and conditions for regulating computer communication with and by a registered user, including conditions that— |
| (i) |
the user will use computer equipment and facilities of a class or kind specified in the agreement; |
| (ii) |
the user, when assigned a digital signature by the Commissioner, will ensure the security of the signature in the manner agreed to in the agreement; |
| (iii) |
where electronic data is received by the Commissioner from the registered user authenticated by electronic signature— |
| (aa) |
without the authority of the user to whom such signature was allocated; and |
| (bb) |
before notification to the Commissioner by the user of a breach of security, |
such data shall be taken by the Commissioner to have been communicated by the registered user of such digital signature, as the case may be;
| (b) |
whether the applicant has complied with the provisions of subsection (5); |
| (c) |
any other requirement, including reasonable access to the computer system of the registered user by the Commissioner for such verification and audit purposes as may be required in terms of any provision of this Act; |
| (d) |
the method and period for which electronic records shall be kept. |
| (a) |
Any applicant for registration shall produce proof in support of the application that— |
| (i) |
adequate measures have been introduced to exercise reasonable care to— |
| (aa) |
retain control of the digital signature allocated by the Commissioner and for the prevention of its disclosure to any person not authorised to affix such signature; |
| (bb) |
ensure that information remains complete and unaltered apart from the addition of any change which may occur in the normal course of communication storage and display; |
| (ii) |
the standard of reliability is in accordance with the standard required in the user agreement and the provisions of this section and the rules. |
| (b) |
If the digital signature has been compromised in any manner the applicant shall inform the Commissioner without delay in the manner prescribed by rule. |
| (a) |
The Commissioner may, after due consideration of the application and the practice statement and after making such enquiries as he may deem necessary, approve the application subject to any reasonable conditions as he may impose in each case. |
| (b) |
The Commissioner may, subject to review by the High Court— |
| (i) |
refuse any application for registration if— |
| (A) |
does not comply in respect of such application with the requirements contemplated in subsection (3); |
| (B) |
has made a false or misleading statement with respect to any material fact or omits to state any material fact which was required to be stated in the application for registration; |
| (bb) |
the applicant or any employee of such applicant— |
| (A) |
has contravened or failed to comply with the provisions of this Act; |
| (B) |
has been convicted of an offence under this Act; |
| (C) |
has been convicted of an offence involving dishonesty; or |
| (D) |
has failed to comply with any condition or obligation imposed by the Commissioner in respect of such registration: |
Provided that subparagraphs (A) to (C) shall not apply in respect of an employee if the applicant proves that he was not a party to or could not prevent any such act or omission by such employee; or
| (ii) |
cancel or suspend for a specified period any registration— |
| (aa) |
if the registered user— |
| (A) |
is sequestrated or liquidated; |
| (B) |
no longer carries on the business for which the registration was issued; |
| (C) |
is no longer qualified according to the qualifications prescribed in the rules; or |
| (D) |
fails to meet in respect of the computer system used all the compliance requirements and the operational standards required in terms of the user agreement and prescribed by the Commissioner as contemplated in this section; |
| (bb) |
if the registered user or the employee of such user has— |
| (A) |
contravened or failed to comply with the provisions of this Act; |
| (B) |
been convicted of an offence under this Act; |
| (C) |
been convicted of an offence involving dishonesty; or |
| (D) |
failed to comply with any condition or obligation imposed by this Act or by the Commissioner in respect of such registration: |
Provided that subparagraphs (A) to (C) shall not apply in respect of an employee except an employee to whom a digital signature was allocated, if the holder proves that he was not a party to or could not prevent any such act or omission by such employee: Provided further that before a registration is cancelled or suspended, the Commissioner shall—
| (a) |
give 21 days notice to the registered user of the proposed cancellation or suspension; |
| (b) |
provide reasonable information concerning any allegation and grounds for the proposed cancellation or suspension; |
| (c) |
provide a reasonable opportunity to respond and make representations as to why the registration should not be cancelled or suspended. |
| (a) |
When the Commissioner so registers a person or cancels or suspends such registration, the registration, cancellation or suspension shall have effect from the day on which the notice was signed. |
| (b) |
The Commissioner may prescribe a registration fee or fee for the issuance of a digital signature by rule. |
| (c) |
The Commissioner shall, on registering a user, allocate to the user— |
| (i) |
if the user is a natural person, a digital signature or sufficient digital signatures for the user and each employee of the user nominated in the agreement; or |
| (ii) |
if the user is not a natural person, sufficient digital signatures for each employee of the user nominated in the agreement. |
| (d) |
Where the registered user is a clearing agent, licensed under this Act no employee of such agent who is not licensed as a clearing agent shall be allocated a digital signature. |
| (a) |
For the purposes of section 101(2B), where any provision of this Act prescribes or requires that documents, records, information or the like shall be retained for a specific period, that requirement shall be deemed to have been satisfied if such documents, records, information or the like are so retained in electronic form, if— |
| (i) |
the information contained therein remains accessible so as to be subsequently usable; |
| (ii) |
the electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received; |
| (iii) |
the details which will facilitate the identity of the origin, destination, date and time of dispatch or receipt of such electronic record are available in the electronic record. |
| (b) |
An electronic communication or the record of such communication shall be attributed to the originator— |
| (i) |
if it was sent by the originator; |
| (ii) |
if it was sent by a person who had the authority to act on behalf of the originator in respect of that communication or record; or |
| (iii) |
if it was sent by a computer system programmed by or on behalf of the originator to operate automatically. |
| (a) |
Where the Commissioner and a registered user have not agreed that an acknowledgment of receipt of electronic communication be given in any particular form or by any particular method, an acknowledgement may be given by— |
| (i) |
any communication by the Commissioner, electronic or otherwise; or |
| (ii) |
conduct by the Commissioner or any officer sufficient to indicate to the registered user that the electronic communication has been received. |
| (b) |
Where the Commissioner and the registered user have agreed that an electronic communication shall be binding only on the receipt of an acknowledgement of such electronic communication, then, unless such acknowledgement has been so received within such time as agreed upon, such electronic communication shall be deemed not to have been sent. |
| (i) |
The dispatch of an electronic communication occurs when it enters a computer resource outside the control of the originator. |
| (ii) |
The time of receipt of an electronic communication shall be when the electronic communication enters the designated computer— |
| (aa) |
where the electronic communication is by a registered user, at any office of a Controller set out in item 202.00 of the Schedule to the rules, or of the Commissioner, to whichever it was addressed, and such office shall be the place of receipt; or |
| (bb) |
if the electronic communication is by the Commissioner or any Controller or officer to a registered user, at the place of receipt that is stipulated in the "user agreement" referred to in subsection (4). |
| (a) |
Whenever any registered user is authorised to submit and sign electronically any manifest, bill of entry, return, prescribed form, document, schedule, application, declaration, statement, report, notice or the like, which is required to be submitted and signed in terms of the provisions of this Act, such signature electronically affixed to such electronic communication and communicated to the Commissioner, a Controller or any officer, shall, for the purposes of this Act, have the force and effect as if it was affixed thereto in manuscript and acceptance thereof, shall not be denied if it is in conformity with the electronic signature agreed to by and between the Commissioner and the registered user. |
| (b) |
The signature and authentication of any electronic communication referred to in paragraph (a) shall be effected as prescribed by rule. |
| (c) |
For the purposes of the definition of "digital signature", a digital signature is an electronic signature created by computer, intended by the registered user using it and by the Commissioner accepting it to have the same force and effect as the use of a manual signature and which is— |
| (i) |
unique to the registered user; |
| (ii) |
capable of verification; |
| (iii) |
linked or attached to electronically transmitted data in such a manner so as to authenticate the attachment of the signature to particular data and the integrity of the data transmitted so that if the data is changed the electronic signature is invalidated; |
| (iv) |
under the sole control of the registered user; and |
| (v) |
conforms in all respects to the requirements prescribed by the Commissioner by rule and contained in the user agreement. |
(d)
| (i) |
The Commissioner may, notwithstanding anything to the contrary contained in this section, permit, as prescribed by rule, any person who is registered as a user and has entered into a user agreement as contemplated in subsection (3), to submit electronically any communication referred to in paragraph (a), by using the Internet. |
| (ii) |
Subject to such exceptions, adaptations or additional requirements as the Commissioner may prescribe by rule, the provisions of this section shall apply to the submission of such communication. |
| (iii) |
"Internet" shall have the meaning assigned thereto in the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002). |
| (11) |
Where in any proceedings or prosecution under this Act or in any dispute in which the State, the Minister, the Commissioner or any officer is a party, the question arises whether an electronic signature affixed to any electronic communication to the Commissioner was used in such communication with or without the consent and authority of the registered user, it shall, in the absence of proof to the contrary, for purposes of this Act be assumed that such signature was, subject to the provisions of subsection (4), so used with the consent and authority of the registered user. |
| (a) |
Notwithstanding anything to the contrary in this Act or in any other law contained, whenever in any proceedings or prosecution under this Act or in any dispute in which the State, the Minister, the Commissioner or any officer is a party, it is necessary to prove the authenticity, the veracity, the origin, the contents, an electronic signature or any other aspect of any electronic communication transmitted to and received by the Commissioner under this section, the provisions and conditions of the user agreement referred to in subsection (4) shall establish the basis upon which any court of competent jurisdiction shall determine such issues. |
| (b) |
Notwithstanding anything to the contrary contained in any other law, nothing in the application of the rules of evidence shall be applied so as to deny the admissibility of any electronic communication under this section for purposes of this Act in evidence— |
| (i) |
on the sole grounds that it is an electronic data message; or |
| (ii) |
if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in original form. |
| (i) |
Information in the form of a data message shall be given due evidential weight. |
| (ii) |
In assessing the evidential weight of a data message a court shall have regard to— |
| (aa) |
the reliability of the manner in which the data message was generated, stored and communicated; |
| (bb) |
the reliability of the manner in which the integrity of the information was maintained; |
| (cc) |
the manner in which its originator was identified; |
| (dd) |
whether these functions were in compliance with the user agreement; and |
| (ee) |
the requirements of this section, and any other relevant factor. |
| (13) |
Whenever, because a computer system is inoperative, a registered user or the Commissioner cannot transmit or receive an electronic transmission required for purposes of this Act, the registered user and the Commissioner shall communicate with each other by paper document as prescribed by rule. |
| (14) |
The Commissioner may at any time require from any registered user who transmitted any electronic communication under this section for purposes of this Act the production of any original document required to be produced under any of the provisions of the Act. |
| (a) |
Any person, other than the registered user of an electronic signature, using such signature in any electronic communication to the Commissioner for any purpose under this Act without the consent and authority of such registered user, shall be guilty of an offence and liable on conviction for every time such signature was so used to a fine not exceeding R100 000 or treble the value of the goods in respect of which the offence was committed, whichever is the greater, or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment, and the goods in respect of which such offence was committed shall be liable to forfeiture under this Act. |
| (i) |
makes a false electronic record or a part of an electronic record or who makes a false entry in any electronic record or who makes a false statement in such electronic record; or |
| (ii) |
dishonestly or fraudulently— |
| (aa) |
makes, signs or executes an electronic record; |
| (bb) |
makes or transmits any electronic record or part of any electronic record; |
| (cc) |
affixes any digital signature on any electronic record; or |
| (iii) |
without lawful authority dishonestly and fraudulently alters any electronic record in any material part thereof after it had been made, executed or affixed with digital signature; or |
| (iv) |
dishonestly or fraudulently causes any other person to sign, execute or alter an electronic record or to affix a digital signature on any electronic record, |
shall be guilty of an offence and liable on conviction for every such offence to a fine not exceeding R100 000 or treble the value of the goods in respect of which the offence was committed, whichever is the greater, or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment, and the goods in respect of which such offence was committed shall be liable to forfeiture under this Act.
| (16) |
The Commissioner may make rules— |
| (a) |
to delegate, subject to section 3(2), any power which may be exercised or assign any of the duties which shall be performed in terms of this Act to any officer or any other person; |
| (b) |
regarding all matters which are required or permitted in terms of this section to be prescribed by rule; and |
| (c) |
in respect of any other matter which the Commissioner may reasonably consider to be necessary and useful to achieve the efficient and effective administration of the provisions of this section. |
Housing Development Agency Act, 2008
