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Why South Africa’s draft revised material transfer agreement is not fit for purpose

Forcing a square into a circle: why South Africa’s draft revised material transfer agreement is not fit for purpose

PAIA manual

View the PAIA manual HERE 20230626_PAIA_Manual_Esselaar Attorneys_PGE

Paul Esselaar

Paul Esselaar completed his BA, LLB at Rhodes University in Grahamstown in 1997. Thereafter he attended the School for Legal Practice at the University of Cape Town in 2000 and went on to complete his articles at Kessler De Jager Inc. During his articles he focussed...

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The Esselaar Attorneys Web Site is subject to copyright by Esselaar Attorneys or is licenced under copyright from third party owners. You may reproduce any web page - subject to the disclaimer below - for personal use only. Any comments and statements contained within...

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This message and any accompanying attachment(s) may contain confidential and copyrighted information. If you are not the addressee(s) indicated in this message or responsible for delivery of the message to the addressee(s), do not copy or deliver this message or the...

Financial Services Laws General Amendment Bill tabled in Parliament

According to the South African Government News Agency (SANews) the Financial Services Laws General Amendment Bill was tabled in Parliament last week. In short, 'the Bill, which was released for public comment in March, addresses urgent issues in eleven financial...

Is the Financial Services Industry pulling wool over consumers’ eyes?

The Financial Services industry is in a state of flux. The Financial Services Laws General Amendment Bill (FSLGAB) was tabled in parliament on 25 September 2012. The aim of the Bill is to ensure that ‘South Africa has a sounder and better regulated financial services...

Credit Law: Section 89(5)(c) of the NCA declared unconstitutional

In the May/June edition of CLR Paul Esselaar wrote about a decision by the Western Cape High Court in which s 89(5)(c) of the National Credit Act was declared unconstitutional for being inconsistent with the right to property in s 25(1). In other words it was found...

Draft NCA Regulations on Affordability Assessments published

The Department of Trade and Industry has published draft regulations on, "Affordability Assessment for the Amendment of Regulations for matters relating to the functions of the National Consumer Tribunal and Rules for the Conduct of matters before the National...

Drowning in Red Tape: The new threshold for registration as a credit provider

With all the pieces of legislation that are constantly being updated it is easy to miss changes to legislation that are really important – especially if that change comes in the form of a Regulation (something typically drafted by a ministry such as the Department of...

NEW

Why South Africa’s draft revised material transfer agreement is not fit for purpose

Forcing a square into a circle: why South Africa’s draft revised material transfer agreement is not fit for purpose

PAIA manual

View the PAIA manual HERE 20230626_PAIA_Manual_Esselaar Attorneys_PGE

Paul Esselaar

Paul Esselaar completed his BA, LLB at Rhodes University in Grahamstown in 1997. Thereafter he attended the School for Legal Practice at the University of Cape Town in 2000 and went on to complete his articles at Kessler De Jager Inc. During his articles he focussed...

Web Site Terms and Conditions

The Esselaar Attorneys Web Site is subject to copyright by Esselaar Attorneys or is licenced under copyright from third party owners. You may reproduce any web page - subject to the disclaimer below - for personal use only. Any comments and statements contained within...

Email Disclaimer

This message and any accompanying attachment(s) may contain confidential and copyrighted information. If you are not the addressee(s) indicated in this message or responsible for delivery of the message to the addressee(s), do not copy or deliver this message or the...

Financial Services Laws General Amendment Bill tabled in Parliament

According to the South African Government News Agency (SANews) the Financial Services Laws General Amendment Bill was tabled in Parliament last week. In short, 'the Bill, which was released for public comment in March, addresses urgent issues in eleven financial...

Is the Financial Services Industry pulling wool over consumers’ eyes?

The Financial Services industry is in a state of flux. The Financial Services Laws General Amendment Bill (FSLGAB) was tabled in parliament on 25 September 2012. The aim of the Bill is to ensure that ‘South Africa has a sounder and better regulated financial services...

Credit Law: Section 89(5)(c) of the NCA declared unconstitutional

In the May/June edition of CLR Paul Esselaar wrote about a decision by the Western Cape High Court in which s 89(5)(c) of the National Credit Act was declared unconstitutional for being inconsistent with the right to property in s 25(1). In other words it was found...

Draft NCA Regulations on Affordability Assessments published

The Department of Trade and Industry has published draft regulations on, "Affordability Assessment for the Amendment of Regulations for matters relating to the functions of the National Consumer Tribunal and Rules for the Conduct of matters before the National...

Drowning in Red Tape: The new threshold for registration as a credit provider

With all the pieces of legislation that are constantly being updated it is easy to miss changes to legislation that are really important – especially if that change comes in the form of a Regulation (something typically drafted by a ministry such as the Department of...

After some time the Cybercrimes Act was signed into law on the 01 June 2021 although it has not come into force yet. Members of the public often get confused about this and ask: ‘How can it be an Act and not be in force?’. While it does not always happen, there is a modern trend to insert a section (in this case section 60) which allows the President of South Africa to announce a commencement date of the Cybercrimes Act in the Government Gazette. This is done for both convenience and for timing. Convenience in the sense that all that is needed is a small notice in the Government Gazette to implement the Act (as opposed to a vote on the Act in the National Assembly) and timing in the sense that the necessary parties (the South African Police Services (SAPS)) need let the president know that they have the procedures, personnel and systems to be ready to enforce the Cybercrime Act.

The recent riots in Kwazulu-Natal and Gauteng bring the question of capacity in SAPS into stark relief. In general, the prosecution of Cybercrimes would require police officers who would have a tertiary qualification – preferably in computer science or forensics. Anecdotal evidence suggests that new SAPS recruits into the commercial crime / cybercrime section do not need any tertiary qualification. This is dramatically different from the type of qualifications you find in the private sector where digital forensic specialists often have multiple qualifications and considerable experience in the field. Put simply it is difficult to imagine how the commercial crime / cybercrime section of the SAPS will succeed without strong assistance from the private sector – the cybercrimes problem is just too complex. Unfortunately, it is not as easy as the private sector being willing to provide the help – it is also up to the SAPS to accept the help and facilitate appropriate interaction with the private sector. 

The question of capacity not just a local South African problem, but also a problem for African countries. Many African countries are also in the process of implementing their own cybercrimes legislation (for example, consider the metrics that we used to evaluate Cybercrime legislation for the African Union eCommerce project on page 4 of this presentation) and struggling to increase their cybercrime capacity. 

While there are many strategies to increase cybercrime capacity, there is one that I would like to propose which would be along the lines of the Digital Security Challenge hosted by Interpol every year. This has a host of benefits including strengthening of public / private interaction and identifying upcoming talent which can be nurtured and mentored. This could be particularly valuable in that the talent comes to the SAPS rather than the SAPS having to find it. This model could also be enlarged so that African Union countries, rather than just South Africa, would be able to participate. 

Cybercrime prevention is not just about having the legislation to prosecute it: that is just the first building block. Our Cybercrime Act will not properly get off the ground if the SAPS does not come up with innovative ways to make its cybercrime division an employer of choice and work together with the private sector to vastly ramp up its capacity.