- S v Msomi 2020 (1) SACR 197 (ECG)
Section 86 of the Electronic Communications and Transactions Act 25 of 2002 (hereinafter referred to as “the ECT Act”) provides as follows:
“Unauthorised access to, interception of or interference with data
86.(1) Subject to the Interception and Monitoring Prohibition Act, 1992 a person who intentionally accesses or intercepts any data without authority or permission to do so, is guilty of an offence.
(2) A person who intentionally and without authority to do so, interferes with data in a way which causes such data to be modified, destroyed or otherwise rendered ineffective, is guilty of an offence.
(3) A person who unlawfully produces, sells, offers to sell, procures for use, designs, adapts for use, distributes or possesses any device, including a computer program or a component, which is designed primarily to overcome security measures for the protection of data, or performs any of those acts with regard to a password, access code or any other similar kind of data with the intent to unlawfully utilise such item to contravene this section, is guilty of an offence.
(4) A person who utilises any device or computer program mentioned in subsection (3) in order to unlawfully overcome security, measures designed to protect such data or access thereto, is guilty of an offence.
(5) A person who commits any act described in this section with the intent to interfere with access to an information system so as to constitute a denial, including a partial denial, of service to legitimate users is guilty of an offence.”
Section 86 of the ECT Act must, of course, be read together with the definition of “data” as it appears in section 1 of the ECT Act, namely that -
“data means electronic representations of information in any form”.
Common law fraud is defined as follows by the learned author Snyman on p531 of his Criminal Law, fifth edition, as published by LexisNexis, namely -
“Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another”.
Section 4 of the Prevention of Organised Crime Act 121 of 1998 (hereinafter referred to as "POCA") provides as follows:
4. Any person who knows or ought reasonably to have known that property is or forms part of the proceeds of unlawful activities and -
(a) enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property, whether such agreement, arrangement or transaction is legally enforceable or not; or
(b) performs any other act in connection with such property, whether it is performed independently or in concert with any other person, which has or is likely to have the effect -
(i) of concealing or disguising the nature, source, location, disposition or movement of the said property or its ownership or any interest which anyone may have in respect thereof; or
(ii) of enabling or assisting any person who has committed or commits an offence, whether in the Republic or elsewhere -
(aa) to avoid prosecution; or
(bb) to remove or diminish any property acquired directly, or indirectly, as a result of the commission of an offence, shall be guilty of an offence.”
Mr Msomi, the accused, appeared before the Specialised Commercial Court in Port Elizabeth (“the trial court”) where he pleaded guilty on seven counts of white-collar crime-related offences.