• The DA has published proposed amendments to the Constitution that would allow for the creation of a Cyber Commissioner.
• This office would oversee South Africa’s digital landscape and would be “key in safeguarding basic human rights”.
• The bill was drafted following consultation with experts in the field of cybersecurity.

There is a concept in the law know as a Living Constitution. This is – to put it in simple terms – the idea that a constitution needs to evolve with the times and the nation as the measures put in place hundreds of years ago, may not be relevant today.

South Africa is lucky in the sense that our democracy is young in comparison to the rest of the world and as such, many of our laws are evolving as our country matures. A good example of this is the call for comments on the Draft Marriage Bill of 2022 which seeks to unify the laws pertaining to marriages.

In the digital age, however, the DA has made a rather bold move by suggesting that much like physical security, digital security should be enshrined in the constitution as well. As such, Advocate Glynnis Breytenbach, Shadow Minister of Justice and Constitutional Development at the Democratic Alliance, is pushing a new constitutional amendment that would introduce a Cyber Commissioner.

“The purpose of the Constitution Twentieth Amendment Bill, 2023 is to amend the Constitution of the Republic of South Africa, 1996 so as to provide for national legislation to establish a Cyber Commissioner as an independent institution, which is directly accountable to Parliament. The Cyber Commissioner will be key in safeguarding basic human rights as entrenched in the Constitution, and will possibly replace the role of the Information Regulator over time,” reads the object of the bill.

The bill was drafted following consultation with “experts in the field of cybersecurity including a cyber forensic specialist, cyber criminal law practitioners and a senior lecturer in cybersecurity.”

The bill seeks to amend a number of sections of the constitution to include, among other things:

• Establishing of a Cyber Commissioner,
• The Cyber Commissioner being a South African with relevant qualifications,
• Removal of the Cyber Commissioner being resolved with a two-thirds majority of the national assembly,
• Salary of the Cyber Commissioner being included in the national legislation,
• A timeline of 12 months to incorporate the Commissioner into the entities and institutions deemed relevant by the amendments.

The DA points to a number of incidents including the breach at the Department of Justice and Correctional Services and Postbank as a reason for the proposed amendments.

“To address these pressing challenges, the Cyber Commissioner will play a crucial role in modernising the state’s cyber security capabilities and protecting personal information from interception and loss. The Cyber Commissioner’s powers will include establishing and maintaining cyber security capabilities across all state organs and entities dealing with public information, operating a cyber security hub for reporting, monitoring, and investigating incidents and threats, advising the defense force on cyber defense capabilities, and guiding institutions responsible for critical infrastructure regarding cyber security. Moreover, the Commissioner will promote, monitor, and evaluate compliance with cyber security capabilities and standards,” the DA writes.

You can read the bill below but keep in mind that it will likely change significantly as it goes through various debates and public consultations. To that end, when the call for public comment is issued we will be sure to share how you can send your comments through.