Protection from Harassment Act, 2011 (Act No. 17 of 2011)4. Electronic communications service provider to furnish particulars to court |
| (1) | If an application for a protection order is made in terms of section (2) and the court is satisfied in terms of section 3(2) that a protection order must be issued as a result of the harassment of the complainant or a related person by means of electronic communications or electronic mail over an electronic communications system of an electronic communications service provider and the identity or address of the respondent in not known, 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 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 harassing electronic communications or electronic mail originated; |
| (ii) | the name, surname, identity number and address of the respondent to whom the electronic communications identity number has been assigned; |
| (iii) | any information which indicates that electronic communications or electronic mail were or were not sent from the electronic communications identity number of the complainant; and |
| (iv) | any other information that is available to an electronic communications service provider which may be of assistance to the court to identify the respondent or the electronic communications service provider which provides a service to the respondent. |
| (2) | If the court issues a direction in terms of subsection (1) the court must direct that the direction be served on the electronic communications service provider in the prescribed manner. |
| (3) |
| (a) | The information referred to in subsection (1)(b)(i), (ii) and (iii) 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 either the respondent or the complainant or related person; or |
| (bb) | the requested information is not available in the records of the electronic communications service provider. |
| (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 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)(i) and (ii), consider the issuing of an interim protection order in terms of section 3(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)(iii) forms part of the evidence that a court may consider in terms of section 3(1). |
| (6) | An electronic communications service provider must, at least 48 hours before 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 is to be provided to the court |
| (b) | reference number of the direction; and |
| (c) | name and address of the court. |
| (7) |
| (a) | The Director-General: Justice and Constitutional Development must, in consultation with the Director-General: Communications and the electronic communications service providers, compile and maintain a list of electronic communications service providers that can provide the courts with the information referred to in subsection (1)(b) and must contain the following particulars of each such electronic communications service provider: |
| (i) | the name and address (physical and postal address) |
| (ii) | the e-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). |
| (b) | 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 (a) to the attention of the Director-General: Justice and Constitutional Development. |
| (c) | the Director-General: Justice and Constitutional Development 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. |
| (8) | The Minister may, after consultation with the electronic communications service providers, by notice in the Gazette, prescribe reasonable tariffs of compensation payable to electronic communications service providers for providing the information referred to in subsection (1)(b). |