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South Africa: Constitution Twentieth Amendment Bill 2023

21 July 2023
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Overview

  • Ensuring cyber security is essential to protecting the rights enshrined in the South African Bill of Rights, safeguarding critical infrastructure, and preserving South Africa’s democracy.
  • To that end, Member of Parliament Advocate Glynnis Breytenbach, has introduced the Constitution Twentieth Amendment Bill (Amendment Bill).
  • The Amendment Bill aims to amend the South African Constitution to create a position of ‘Cyber Commissioner’, who will be directly accountable to Parliament, rather than the national executive, with the goal of safeguarding fundamental human rights.
  • This article draws attention to the inadequate protection of personal information held by state departments and consequent financial losses for state-owned entities and the economy due to cybercrime.

The importance of cybertechnology in both the private and public sectors has been steadily increasing. Ensuring cyber security is essential to protecting the rights enshrined in the Bill of Rights, safeguarding critical infrastructure, and preserving South Africa’s democracy.

To that end, Member of Parliament Advocate Glynnis Breytenbach, has introduced the Constitution Twentieth Amendment Bill (Amendment Bill), available here. The Amendment Bill aims to amend Chapter 9 of the Constitution of the Republic of South Africa, 1996 (Constitution) to create a position of ‘Cyber Commissioner’, the purpose of which is to strengthen constitutional democracy by advising on, monitoring, and establishing cyber security capabilities in the public sector. Additionally, it is intended that the Cyber Commissioner will collaborate with tertiary institutions and the private sector to set minimum standards, enhance capacity, and raise awareness regarding cyber security.

The Amendment Bill, which was originally referred to as the Constitution Eighteenth Amendment Bill, was published in Government Gazette 48589 in May 2023, along with its explanatory summary. The summary draws attention to the inadequate protection of personal information held by state departments and consequent financial losses for state-owned entities and the economy due to cybercrime.

It also highlights that the current state agencies responsible for addressing cybercrime lack proper funding and expertise. In response to these concerns, the Amendment Bill proposes the establishment of the Cyber Commissioner, who will be directly accountable to Parliament, rather than the national executive, with the goal of safeguarding fundamental human rights.

In a recently published article, the Democratic Alliance highlights a number of incidents illustrating the issue of cyber security in both the public sector and the private sector, namely that:

  • The Postbank recently disclosed significant losses of more than ZAR 18 million incurred during a three-month period as a result of cybercrime attacks. Furthermore, an attack that occurred in October 2021 led to a loss of ZAR 90 million.
  • Spyware attacks within South Africa reportedly rose by 18.8% between the last quarter of 2022 and the first quarter of 2023.
  • In May 2023, the Western Cape Provincial Legislature fell victim to a cyberattack, rendering its Information and Communications Technology (ICT) systems inaccessible.
  • In August 2022, the South African Reserve Bank faced an attempted cyberattack by a criminal syndicate.
  • The Department of Justice and Correctional Services’ Guardian’s Fund experienced a breach, leading to the theft of more than ZAR 17 million and the suspension of beneficiary payments.
  • The Department of Justice and Constitutional Development was fined ZAR 5 million by the Information Regulator for non-compliance with the Protection of Personal Information Act after failing to renew licences for antivirus software.

The Amendment Bill emphasises the increasing need to protect the rights of South Africans concerning cyber technology and to address all aspects of cyber security. The proposed Cyber Commissioner is considered vital to safeguarding the basic human rights enshrined in the Constitution and may eventually take over the responsibilities of the Information Regulator (South Africa’s data protection authority).