| (1) | If an application for a protection order is made in terms of section 4 and it is necessary to determine whether an electronic communication, which was used to commit an act of domestic violence, was disclosed by the respondent, the court may— |
| (a) | adjourn the proceedings to any time and date on the terms and conditions which the court deems appropriate; and |
| (b) | issue a direction in the prescribed form, directing an electronic communications service provider, that is believed to be able to furnish such particulars, to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with— |
| (i) | the electronic communications identity number from where the electronic communication originated; |
| (ii) | the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned; |
| (iii) | any information which indicates that the electronic communication was or was not sent from the electronic communications identity number of the person to the electronic communications identity number of the complainant; |
| (iv) | any information that is available to an electronic communications service provider that may be of assistance to the court to identify the person who disclosed the electronic communication or the electronic communications service provider, that provides a service to that person; |
| (v) | any information that is available to an electronic communications service provider which may be of assistance to the court to identify the electronic communications service provider whose service is used to host or was or is used to disclose the electronic communication in question; or |
| (vi) | an assessment whether or not the electronic communications service provider is in a position— |
| (aa) | to remove the electronic communication or a link to the electronic communication; or |
| (bb) | to disable access to such electronic communication or a link to such electronic communication. |
| (2) | If the court issues a direction in terms of subsection (1)(b) the court must direct that the direction be served on the electronic communications service provider in the prescribed manner: Provided, that if the court is satisfied that the direction cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form and manner specified in that order. |
(3)
| (a) | The information referred to in subsection (1)(b) must be provided to the court within five ordinary court days from the time that the direction is served on an electronic communications service provider. |
| (b) | An electronic communications service provider on which a direction is served, may in the prescribed manner by means of an affidavit in the prescribed form apply to the court for— |
| (i) | an extension of the period of five ordinary court days referred to in paragraph (a) for a further period of five ordinary court days on the grounds that the information cannot be provided timeously; or |
| (ii) | the cancellation of the direction on the grounds that— |
| (aa) | it does not provide an electronic communications service to the complainant or the respondent; |
| (bb) | the requested information is not available in the records of the electronic communications service provider; or |
| (cc) | its service is not used to host or was or is not used to disclose the electronic communication in question. |
| (4) | After receipt of an application in terms of subsection (3)(b), the court— |
| (a) | must consider the application; |
| (b) | may, in the prescribed manner, request such additional evidence by way of an affidavit from the electronic communications service provider as it deems fit; |
| (c) | must give a decision in respect thereof; and |
| (d) | must inform the electronic communications service provider in the prescribed form and in the prescribed manner of the outcome of the application. |
(5)
| (a) | The court may, on receipt of an affidavit from an electronic communications service provider which contains the information referred to in subsection (1)(b), consider the issuing of an interim protection order in terms of section 5(2) against the respondent on the date to which the proceedings have been adjourned. |
| (b) | Any information furnished to the court in terms of subsection (1)(b) forms part of the evidence that a court may consider in terms of section 5(1). |
(6)
| (a) | If the court issues a protection order, the court must at the same time, in the prescribed form and manner, issue an order to the electronic communications service provider whose electronic communications service is used to host or disclose the electronic communication which was used to commit an act of domestic violence, to immediately remove or disable access to the electronic communication. |
| (b) | An electronic communications service provider who is ordered to remove or disable access to an electronic communication in terms of paragraph (a), may, within 14 days after the order has been served on it in terms of paragraph (a), in the prescribed manner by means of an affidavit in the prescribed form, apply to the court for the setting aside or amendment of the order referred to in paragraph (a). |
| (c) | The court must as soon as is reasonably possible consider an application submitted to it in terms of paragraph (b) and may for that purpose, in the prescribed manner by means of an affidavit in the prescribed form request such additional evidence by way of an affidavit from the electronic communications service provider as it deems fit, which must form part of the record of the proceedings. |
| (d) | The court may if good cause has been shown for the variation or setting aside of the order, issue an order to this effect and in the prescribed form and manner inform the electronic communications service provider of the outcome of the application. |
| (7) | An electronic communications service provider must, within 48 hours after providing the information referred to in subsection (1)(b) to the court, by means of an electronic communication, inform the respondent of the— |
| (a) | information that was provided to the court; |
| (b) | reference number of the direction; and |
| (c) | address of the court who issued the direction. |
(8)
| (a) | The Director-General: Communications and Digital Technologies, must compile and maintain a list of electronic communications service providers that can provide the courts with the information referred to in subsection (1)(b). |
| (b) | The list referred to in paragraph (a) must contain the following particulars of each such electronic communications service provider: |
| (i) | The name and physical and postal addresses; |
| (ii) | an electronic mail address; |
| (iii) | a telephone and facsimile number; and |
| (iv) | the names of persons who are responsible for providing the information referred to in subsection (1)(b). |
| (c) | An electronic communications service provider must, in the prescribed manner and without undue delay, bring any change of any of the particulars referred to in paragraph (b) to the attention of the Director-General: Communications and Digital Technologies. |
| (d) | The Director-General: Communications and Digital Technologies must, in the prescribed manner and without undue delay, make the list referred to in paragraph (a) and any subsequent amendments thereto available to all courts. |
| (9) | The Minister must, by notice in the Gazette, prescribe reasonable tariffs of compensation payable to electronic communications service providers for— |
| (a) | providing the information referred to in subsection (1)(b); |
| (b) | providing the information contemplated in subsection (7) to the respondent; and |
| (c) | removing or disabling access to the electronic communications which was used to commit an act of domestic violence, as contemplated in subsection (6)(a). |
(10)
| (a) | The complainant is liable for the costs, referred to in subsection (9), in respect of the furnishing of the information referred to in subsection (1)(b), providing the information contemplated in subsection (7) to the respondent, and the removing or disabling access to the electronic communication, referred to in subsection (6)(a). |
| (b) | The court may, at any time hold an inquiry into— |
| (i) | the means of the complainant; and |
| (ii) | any other circumstances which, in the opinion of the court, should be taken into consideration, |
to determine the ability of the complainant to pay the costs referred to in paragraph (a).
| (c) | At the conclusion of the inquiry referred to in paragraph (b), the court may make such order as the court deems �t relating to the payment of the costs referred to in paragraph (a), including an order directing the State, subject to section 15, to pay such costs within available resources. |
| (d) | The court may, if it has ordered the State to pay the costs referred to in paragraph (c), direct who must refund the costs so paid by the State. |
| (11) | Any electronic communications service provider or employee of an electronic communications service provider who— |
| (a) | fails to furnish the required information within five ordinary court days from the time that the direction is served on such electronic communications service provider to a court in terms of subsection (3)(a) or such extended period allowed by the court in terms of subsection (3)(b); |
| (b) | makes a false statement in an affidavit referred to in subsection (1)(b), (3)(b), (6)(b) or (c), in a material respect; |
| (c) | fails to comply with an order to remove or disable access to the electronic communications in terms of subsection (6)(a) or any variation in terms of subsection (6)(d) thereof; or |
| (d) | fails to comply with subsection (7), |
is guilty of an offence.
| (12) | For purposes of this section ‘host’ means to store an electronic communication on an electronic communications network that is used to provide an electronic communications service, where it can be viewed, copied or downloaded. |
[Section 5B inserted by section 10 of the Domestic Violence Amendment Act, 2021 (Act No. 14 of 2021), as per Notice No. 788, GG45824, dated 28 January 2022 - effective 14 April 2023 as the date on which the said Act, with the exception of section 6A, comes into operation, as per Proclamation No. 117, GG48419, dated 14 April 2023]
