Abstract
Cybercrime presents significant challenges for criminal justice systems, particularly in relation to the lawful search, access and seizure of electronic evidence. Digital data is intangible, easily altered and often crosses national borders, which places strain on criminal procedural frameworks developed for physical objects and increases concerns relating to privacy, proportionality and constitutional legitimacy. This dissertation examines whether the legal frameworks of South Africa and Botswana respectively provide adequate investigative powers for search and seizure in cybercrime investigations, while properly safeguarding fundamental rights, and particularly the right to privacy.
The study begins by setting out a conceptual framework, examining the nature of cybercrime, the shift from object based to data-based search and seizure, and the tension between effective law enforcement and privacy. It then analyses the domestic legal frameworks governing cybercrime investigations in Botswana and South Africa, focusing on relevant legislation, key role players, procedural mechanisms, and constitutional and data protection safeguards. Consideration is then given to how each jurisdiction regulates access to electronic data, the seizure and preservation of digital evidence, and the role of judicial oversight.
The dissertation further places both domestic frameworks within their regional and international context by examining relevant instruments, including the United Nations Convention against Cybercrime (Hanoi Convention), the Budapest Convention, the African Union’s Malabo Convention, and the SADC Model Law on Computer Crime and Cybercrime.
Through comparative analysis, the study identifies areas of similarity and difference between the South African and Botswana approaches, particularly in relation to procedure, the scope of investigative powers, the involvement of non‑police actors, and the strength of privacy safeguards. It is submitted that while both jurisdictions have made meaningful progress in adapting search and seizure regimes to the digital environment, further refinement is required to improve clarity, proportionality and accountability. The dissertation concludes by advancing recommendations aimed at strengthening procedural safeguards, improving alignment with regional and international standards, and supporting effective cybercrime investigations that remain consistent with constitutional principles.