The Cybercrimes Bill seeks to:

  1. Create offences which have a bearing on cybercrime;
  2. Criminalise the distribution of data messages which are harmful and to provide for interim protection orders;
  3. Impose obligations to report cybercrimes;
  4. Provide that the Executive may enter into agreements with foreign States to promote measures aimed at the detection, prevention, mitigation and investigation of cybercrimes amongst other matters.
  5. While most of the bill focuses on criminalising the theft and interference of data, it has also introduced new laws surrounding any ‘malicious’ electronic communication.

Concerns have previously been raised about the ‘vagueness’ of these messaging rules, especially because of the steep consequences attached to them.

“any person who contravenes one of the following provisions is liable on conviction to a fine or to imprisonment for a period not exceeding three years, or to both a fine and imprisonment”

  1. A message which incites damage to property or violence;
  2. A message which threatens persons with damage to property or violence;
  3. A message which unlawfully contains an intimate image.


Under the new law, hate speech will be defined as an intention to be harmful or to incite harm, or promote or propagate hatred on the basis of these characteristics:-

  1. Age;
  2. Albinism;
  • Birth;
  1. Colour;
  2. Culture;
  3. Disability;
  • Ethnic or social origin;
  • Gender or gender identity;
  1. HIV status;
  2. Language;
  3. Nationality;
  • Migrant or refugee status;
  • Race;
  • Religion;
  1. Sex (which includes intersex or sexual orientation).

The bill also includes a section of scenarios where the hate speech rules will not apply. The section states that the offence of hate speech does not apply in respect, terms of the above characteristics, if it is done in good faith in the course of engagement in:-

  1. Any bona fide artistic creativity, performance or other form of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm;
  2. Any academic or scientific inquiry;
  3. Fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution;
  4. The bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm.


The primary objective of the new bill is to increase the minimum age of criminal capacity of children from 10 years to 12 years and to remove the requirement to prove criminal capacity for purposes of diversion and preliminary inquiries.

A diversion program is a form of sentence in which the criminal offender joins a rehabilitation program, which will help remedy the behaviour leading to the original arrest and avoid conviction and a criminal record.


The Traditional Courts Bill promises to shake up South African customary law by giving more power to Traditional Leaders in traditional courts proceedings. It also seeks to align traditional courts with the Constitution on issues regarding:

  1. Dignity;
  2. Equality;
  3. Sexism; and
  4. LGBTI rights.

The bill has faced controversy as it does not contain an ‘opt-out provision’ meaning a party cannot opt-out of proceedings being held in a traditional court, in favour of having the matter dealt with by the civil or criminal courts.

Disclaimer: This article is general information 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.

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