59
(4)
Any person or electronic communications service provider who fails
to comply with a preservation of evidence direction is guilty of an offence and is liable
on conviction to a fine not exceeding R5 million or to imprisonment for a period not
exceeding 5 years or to both such fine and imprisonment.
(5)
A person or electronic communications service provider to whom a
preservation of evidence direction referred to in subsection (1) is addressed, may in
writing apply to a magistrate or judge of the High Court in whose area of jurisdiction the
person or electronic communications service provider is situated for an amendment or
the cancellation of the direction concerned on the ground that he, she or it cannot
timeously or in a reasonable fashion, comply with the order.
(6)
The magistrate or judge of the High Court to whom an application is
made in terms of subsection (5) must, as soon as possible after receipt thereof—
(a)
consider the application and may, for this purpose, order oral or written evidence
to be adduced regarding any fact alleged in the application;
(b)
give a decision in respect of the application; and
(c)
inform the applicant and law enforcement agency of the outcome of the
application.
Oral application for preservation of evidence direction
43.
(1)
An application referred to in section 42(1), may be made orally by a
member of a law enforcement agency, if he or she is of the opinion that it is not
reasonably practicable, having regard to the urgency of the case or the existence of
exceptional circumstances, to make a written application.
(2)
(a)
An oral application referred to in subsection (1) must—
indicate the particulars of the urgency of the case or the other exceptional
circumstances which, in the opinion of the member of the law enforcement
agency, justify the making of an oral application; and