S v De Vries and Others (SS 67/2005) [2006] ZAWCHC 64 (20 April 2006)

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[2006] ZAWCHC 64
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S v De Vries and Others (SS 67/2005) [2006] ZAWCHC 64 (20 April 2006)

IN THE HIGH
COURT OF SOUTH AFRICA
[CAPE OF GOOD
HOPE PROVINCIAL DIVISION]
CASE NO SS
67/2005
DATE 20-04-2006
In
the matter of:
THE
STATE
versus
1. SELWYN WINSTON DE VRIES
2. VIRGIL LENNITH DE VRIES
3.
JULIAN MICHAEL VAN HEERDEN
4. VERNON NOEL
VICTOR
5. ALEX ANNA
6.
GARY WILLIAMS
7.
LLEWELLYN SMITH
8.
FRANCIS JAMES NGARINOMA
9. EDWARD MOAGI
10.
DARRYL PITT
11. ACHMAT
MATHER
JUDGMENT
BOZALEK,J:
I am now
called upon to make a ruling at the culmination of the third
trial-within-a-trial in this trial relating to the admissibility
of
cellphone records procured from cellphone service provider companies
by way of subpoenas authorised in terms of
section 205
of the
Criminal Procedure Act 51 of 1977
.
Although I
would have liked more time to prepare these reasons, that must give
way to the imperative of pressing on with this trial
which has
already been running for a long period, during which not
insubstantial periods of time have been lost.
The eleven
accused in this matter are standing trial on some two dozen charges
which revolve principally around three armed robberies
of cigarette
delivery vehicles, two of which took place in the Western Cape in
June and August 2003 and one outside Port Elizabeth
in October of
that year. The trial commenced in August 2005 and has now been
running for approximately 53 days. The State has still
to complete
its case. Evidence led so far reveals that in each instance the
hijacking was the work of robbers using several vehicles
and keeping
close communication with each other, using cellphones.
Prior to
the inception of the trial, the State approached the Cape Town
magistrate and sought, by way of subpoena in terms of
section 205
,
access to records of cellphone activity over the period of the
robberies in relation to 17 cellphone numbers. A lengthy
trial-within-a-trial
ensued after defence counsel challenged the
admissibility of such evidence. On 30 January 2006 I ruled that the
evidence derived
from the two
section 205
subpoenas (Exhibits RRR2
and RRR3) and relating to four cellphone numbers, was inadmissible.
Within the
same trial-within-a-trial the admissibility of evidence obtained
pursuant to certain warrants of arrest, pursuant to which
several of
the accused had been arrested, was also considered and ruled upon.
In the event no reasons were furnished for these rulings
and these
will be handed down on the conclusion of this trial.
What was
central to the ruling on the admissibility of the cellphone
documentation, however, was evidence that the magistrate in question
had failed to proper apply his mind to the merits of the application
for the subpoenas and had been disproportionally influenced
by the
fact that the application had been brought in the name and under the
signature of an official in the office of the Director
of Public
Prosecutions for whom the magistrate had a high professional regard.
That trial-within-a-trial took up a considerable amount
of court
time, although much of it involved evidence relating to the arrest of
the accused and simultaneous search and seizure operations
conducted
at their residences.
The second
trial-within-a-trial concerned records relating to the usage of
certain cellphone records, before, during and after the
third robbery
outside Port Elizabeth in October 2003, which records were similarly
obtained from the service provider companies through
section 205
subpoenas authorised by the Port Elizabeth magistrate.
That
documentation was declared inadmissible when the evidence brought to
light that the magistrate had failed even to appreciate
the test
which he was required to apply in considering the application for a
subpoena.
The
State thereafter sought to introduce in evidence records of cellphone
usage relating to 10 cellphone numbers and three cellphone
or handset
specified IMEI numbers for the period commencing 1 June 2003 until
respectively September and November 2003, during which
period the two
robberies in the Western Cape were effected.
This documentation was
procured by the State pursuant to two
section 205
subpoenas
authorised by the Cape Town magistrate in February and March 2006.
The applications for the subpoenas were made by the
Deputy Director
of Public Prosecutions after and consequent upon the ruling made by
this Court on 30 January 2006. The cellphone
and IMEI numbers are set
out in the two subpoenas which form part of the Bundle of documents
(Exhibit EEEE). The balance of the Bundle,
some 100 pages of
documentation, comprises sworn statements by the
investigating officer, Inspector A J Jonker ("Jonker")
made
in support of the two applications in terms of
section 205
, and a
host of other supporting documentation, including the statements of
witnesses who have testified at the trial, data down-loaded
from
cellphones and suspect profiles.
An
analysis of the cellphone numbers and IMEI handset numbers set out in
the subpoenas reveals the following features. Firstly, all
the
cellphone numbers are so-called "non-contract numbers",
i.e. they relate to "pay-as-you-go" SIM cards or
their
equivalent and the documentation in question will not reveal directly
who was operating such cellphone numbers.
Secondly,
it is undisputed that evidence, either before this Court or placed
before the Cape Town magistrate, indicates that the ten
cellphone
numbers may be linked to the following accused - numbers 1, 2, 3, 4
and 5, this in the case of the subpoena directed to
Vodacom. All
these accused persons have been implicated in one or more of the
robberies in the Western Cape by at least one State
witness who has
already testified, the
section 204
accomplice witness Mr Vernon
Aspeling. The remaining cellphone number on the subpoena addressed to
Vodacom is that of Aspeling himself,
who clearly has no objection the
production of his cellphone records.
As far as
the second subpoena is concerned, that addressed to MTN, the three
cellphone numbers relate to accused number 8, a former
accused who
has now disappeared, one Jimmy Maseko, and a ghost number also
referred to as a "koketela" card which, according
to
Aspeling's evidence, was repeatedly used to contact him immediately
before, during and after the two robberies in the Western
Cape in
which he participated. Apparently this type of SIM card relates to a
cellphone number which can be used without cost.
The three
IMEI numbers referred to in the second subpoena relate to handsets
which were seized from the residences of one or more
of the accused
at the time of their arrest. The linkages between the cellphone
numbers listed in the subpoenas and the accused, as
well as the
linkages between the IMEI numbers and one or more of the accused
were, although not admitted by the accused, not seriously
disputed by
them in the trial-within-a-trial. In it the State led the evidence of
the investigating officer Jonker and the magistrate
who considered
the applications and authorised the subpoenas, Mr S Maku. Instead the
accuseds’ objections to the admissibility
of the documentation were
founded upon procedural grounds relating to the application for the
authorisation of the
section 205
subpoenas, which grounds I will set
out in more detail hereunder.
During
the trial-within-a-trial and notwithstanding the fact that the
documentation relating to the cellphone usage did not relate
to every
accused, I allowed the respective counsel for all the accused to
cross-examine witnesses and direct argument to the Court
since,
should the documentation be held admissible, it may well have
potentially far-reaching effects on all the accused. None of
the
accused testified in a trial-within-a-trial, nor were any witnesses
led on their behalf. None of he accused to whom the various
cellphone
numbers and IMEI numbers were linked admitted using the relevant
cellphone numbers or handsets.
A final feature of the
documentation sought in terms of the two subpoenas which is of some
significance is that all of the cellphone
numbers had been listed in
the earlier 205 applications authorised by the Cape Town magistrate
and which had led to the State obtaining
records relating to the
usage of such cellphone numbers over the relevant period.
The
anomalous situation which existed in February 2006 was then that the
State had in its possession much of the detailed data relating
to the
usage of the cellphone numbers. Because of the ruling of
inadmissibility, the prosecution appeared to have formed the view
that they would have to re-apply for fresh subpoenas under
section
205
to obtain the same data and the limited amount of additional data
which they sought in relation to the three IMEI numbers.
The evidence of
Jonker and magistrate Maku reveals that on this occasion a more
formal procedure was followed by the State. Apart
from the
substantial body of documentation placed before the magistrate,
Jonker attested to a sworn affidavit on 12 February 2006
in which he
gave some background to the application, emphasising the importance
of the cellphone data being sought, and gave some
background to the
matter. He referred therein to certain attached sworn statements by
witnesses who had already testified in the
case, namely Messrs Speed,
Cottle, Mentoor, Aspeling and a Ms Harding. He also referred to
attached affidavits of Ms van Heerden
and a Ms Zeelie, who had not
testified in the trial.
Although
these affidavits referred to various cellphone numbers, the role of
cellphones in the robberies and linked certain cellphone
numbers to
certain of the accused, the amount of detail contained in the
statements and the supporting documentation, together with
the fact
that the numbers listed on the applications for the two subpoenas are
not coupled with the names of any of accused, would
have left any
person considering the applications with a difficult task in
evaluating their merits.
In mid-February, Jonker
called upon the magistrate, unaccompanied by any prosecutor, and
placed the applications before him. Mr Maku's
response was to tell
Jonker that he could leave the documentation with him to read and
consider in his own time and he would contact
Jonker in due course.
Mr Maku bore some knowledge of his colleague, Mr Venter, having
testified in this trial during late 2005 concerning
his authorisation
of the earlier
section 205
subpoenas. Although no reasons were
furnished for the ruling of admissibility in relation to those
subpoenas, it appears that Mr
Venter's experience had brought about
changes in the manner in which applications for such subpoenas were
considered within the Cape
Town Magistrates’ Court.
Senior
management had met and new guidelines were, in the first place,
announced. In the first place, whereas previously such applications
had been processed without any record being retained in the
Magistrates' Court, the new arrangements required a file to be opened
for each such application and a copy thereof to be retained.
Secondly, and more importantly, the Chief Magistrate advised his
magistrates that they would have to be more careful with
section 205
applications and ensure that
such applications were in proper form
and, in relation to subpoenas relating to cellphone records, check
that there was indeed a link
between the numbers in respect of which
cellphone data was sought from the service provider companies, and
the information contained
in the statements supporting the
applications. The new procedures which I have just described was that
according to Mr Maku's unchallenged
evidence.
Some days
after receiving the applications, Mr Maku called Jonker to state that
he could not make sense of certain statements therein.
In response to
this, Jonker furnished him with a further sworn affidavit from
himself in which he clarified which cellphone numbers
appearing on
the subpoenas were linked to which accused or other person allegedly
involved in the robberies. That statement is dated
24 February 2006.
In essence it
appears that the magistrate had been unable to follow how the State
linked the relevant cellphone numbers to the accused
or other persons
involved. Thus on 24 February 2006, not only did Mr Jonker furnish Mr
Maku with a further statement, but he also
sat with him and took him
through the existing documentation in an attempt to clarify the
linkages.
In that
self-same encounter Mr Maku advised Mr Jonker that he was not
prepared to grant the subpoena directed at Vodacom in respect
of two
of the nine numbers listed and these numbers were deleted from the
subpoena. He authorised and signed the subpoena in respect
of the
remaining seven numbers. Mr Maku, however, still had queries
relating to the second subpoena, that addressed to MTN, which
difficulties he raised with Mr Jonker. As a result, Jonker filed
further documentation and a further explanatory sworn affidavit
from
himself. This affidavit was dated 6 March and related to two of the
three cellphone numbers
listed in the second application for a
subpoena. Mr Maku was notable to state definitely whether he had met
with Mr Jonker on a third
occasion, the first being when Jonker had
merely placed the applications before him. It appears quite likely
that this was the case.
In the
intervening period there were a number of phone calls between Maku
and Jonker where they sought to communicate with each other,
this
process being somewhat hampered and delayed by the fact that Jonker
had either taken leave or had been out of town. By 9 March,
however,
Mr Maku was satisfied that a case had been made out in the
application for the second subpoena and he authorised and signed
it.
Before this Court, Mr Maku also testified that he had been aware that
the trial of the accused was part-heard and ongoing and that
certain
of the witnesses whose statements were before him, most notably
Vernon Aspeling, the accomplice witness, had already testified
in
court. He had not asked for typed transcripts of their evidence. When
asked whether he had considered giving an audience to the
accused's
legal representatives in the applications, Mr Maku's reply was that
his interpretation of
section 205
was that the parties directly
involved at that stage were the witnesses, namely the service
providers, and the Director of Public
Prosecutions' representative
and not the accused/suspects.
A variety
of arguments were made before me by the accuseds’ counsel as to why
the cellphone records should not be admitted in evidence.
There was
little, if any, attack upon the substantive case made out in Exhibit
EEEE before the magistrate linking various numbers
and handset
numbers to accused suspects or witnesses.
Instead,
the arguments were largely of a procedural nature, the general thrust
being that admission of the evidence would violate
the accuseds’
right
to a fair trial, more specifically, their right to a speedy trial.
Reliance was also placed on the accuseds’ right of privacy,
the
contention being that it extended to the records of cellphone usage
compiled by service provider companies.
As far as
the application itself was concerned, it was argued that the
magistrate had not acted independently in that he had leant
over
backwards to assist the State and the police. It was contended
further that the applications had contained certain
misrepresentations
and that the best evidence had not been placed
before the magistrate. It was further contended that the applications
should not have
been heard without the accused being represented
thereat and, furthermore, that it was defective by reason of the
absence of a prosecutor
or representative of the Director of Public
Prosecutions. Further cause for complaint was
the late discovery
by the State of some of the documents comprising Exhibit EEE and
financial and other prejudice caused to the accused
by the series of
trials-within-trials.
It was
argued that cumulatively these defects were such as to render the
admission of the evidence a breach of the accuseds’ right
to a fair
trial or detrimental to the administration of justice.
A starting
point in the consideration of the various grounds of objection raised
by the defence is to note that the provisions of
section 205
of Act
51 of 1977 have received the judicial
imprimatur
of
the Constitutional Court.
In
Nel
v Le Roux N.O. & Others
1996(1) SACR 572 (CC) it was held that these provisions were "as
narrowly tailored as possible to meet the legitimate state
interest
of investigating and prosecuting crime" (at 503G-H).
In concluding
that there was no substance to the various constitutional challenges
mounted against the section, the Court had regard
to the context of
section 205 proceedings as a whole. It noted that the subpoenas were
obtained at the request of an Attorney-General
or an authorised
public prosecutor and it can only be issued at the instance of an
independent judicial officer.
In the
light of this authority, it seems to me that defence counsels'
occasional references to section 36 of the Constitution as a
means of
evaluating section 205 process which is the subject of this ruling,
is inappropriate. Rather, the correct lens to be used
is section
35(3) of the Constitution which provides for the exclusion of any
evidence obtained in a manner violating any right in
the Bill of
Rights if the admission of that evidence would render the trial
unfair or otherwise be detrimental to the administration
of justice.
The first
question which arises is whether the State was entitled in the
circumstances of this matter to use the section 205 procedure.
Two
possible objections to its use arise. In the first place, there is
the consideration that section 205 applications are generally
used as
part of the pre-trial investigation procedure and not during the
course of the trial itself. The second unusual feature of
the present
applications was that they were in effect a repeat application/s
since there was a considerable degree of overlap between
the
applications launched pre-trial and those launched before the Cape
Town magistrate in February 2006.
As regards
the first point, there is nothing in the provisions of section 205
which stipulate or even suggest that its use is limited
to the
pre-trial period. One can readily envisage a situation where, in the
midst of trial, information comes to light which may
have an
important bearing on the outcome of the matter and which can only or
best be obtained through the use of the section 205
procedure. I can
see no bar, therefore, to the use of section 205 by the State in a
situation where a trial has already commenced.
A criminal trial has
a dynamic of its own and it would be inappropriate to seek to freeze
the potential evidentiary material at
any given point prior to the
Court rendering its verdict.
The second
and related question is whether the State is entitled to bring a
fresh section 205 application where there has been a ruling
by a
court that the same information obtained through an earlier similar
process was inadmissible. Again there is nothing in the
terms of
section 205 which appears to preclude a repeat application. A ruling
that evidence is inadmissible is an interlocutory ruling
and
therefore one which a court is capable of varying in appropriate
circumstances. (See in this regard
S
v Tiiho
1992(1) SACR 639 (NM) and
S
v Mkwanazi
1966(1) SA 736 (A) at 743)
In the
latter matter dealing with a confession which had initially been held
to be admissible;
Williamson,
JA
stated as follows:
"If
other factors touching upon the question of admissibility appear
later in the trial he can, and should, reconsider any earlier
decision as he rightly did in the present case". There is no
reason in principle, furthermore, why such an approach does 15
not
apply to evidence initially held to be inadmissible and in relation
to evidentiary material other than confessions and admissions.
(See
also in this regard
R
v Melozani
1952(3) SA 693 (A) at 644E-F; and
S
v Ramgobin & Others
1986(4) SA 117)
Particularly
pertinent too are the remarks of
Ackermann,
J
(as he then was) in
Sv
Lepele & Others
(2) 1986(2) SA 346 where the State applied during the course of a
criminal trial for a direction in terms of section 153(2) of Act
51
of 1977 that the evidence of certain State witness be heard
in
camera
and
his identity not be revealed. A prior application in general terms
in respect of all black State witnesses, including the present
witness, had been dismissed earlier. The application was opposed
it being contended
in
limine
that
as the previous application had been dismissed by the Court, the
matter was
res
judicata
and
could not be raised again.
Ackermann,
J
held that as the previous order did not dispose of any of the issues
in the trial or any portion thereof, it was a purely interlocutory
order which could be corrected, altered or set aside and accordingly
that the State was free to proceed with the application.
The learned Judge conducted a
full review of the authorities and, referring to the line of cases
which dealt largely with confessions
which had initially been ruled
admissible, stated as follows at page 350C-D:
"There
is, in my view, no warrant for restricting the ambit of these
judgments to a reconsideration of evidence admitted and
not to
evidence rejected. Both situations relate to the question of
admissibility. I can in principle see no reason why the rejection
of
evidence should be not treated on the same footing. The interlocutory
nature of an order excluding evidence appears to me an
a
fortiori
case".
Ackermann,
J
also dealt with the argument advanced on behalf of the defence that
the State, having been initially unsuccessful, should not be
permitted to renew its application since this could lead to a
never-ending succession of applications of this nature. It was also
argued that this could lead to abuse with the initial application
being used to "test" a particular judge's approach to
such
an application and the subsequent application being used to
supplement the defects of the initial application in the light of
the
knowledge so gained, the State having been made aware of "where
the shoe pinches".
Similar arguments were raised
by defence counsel in the present matter.
Of this
argument,
Ackermann,
J
stated:
"The
point raised by Mr
Farlam
is, I think, a valid one but is met, in my view, by the fact that the
court has an inherent jurisdiction to limit the extent to which
it
will allow its own orders to be varied. In
Bell
v Bell
(supra)
the
court stated at 894 that:
'Courts
will not likely (Iightly(?)) vary their own orders even though they
may be of a merely interlocutory nature and cases in which
such
orders will be altered in the absence of fresh facts cannot be
numerous. At the same time the present matters offers an instance
of
a class of case in which relief may under certain circumstances well
be granted". I am in respectful agreement with the approach
adopted by
Ackermann,
J
in
S
v Lepele
.
Furthermore, I regard the circumstances of the present matter as
appropriate to allow the State making a fresh application or
applications
for subpoenas in terms of section 205.
In the
first place, the central reason for the inadmissibility ruling in
relation to the information obtained from the first subpoena
arose
from the manner in which the applications were determined by the
magistrate.
Although I
have not furnished by reasons for that ruling, it was argued by
counsel at the time, correctly so, that the magistrate
had failed to
apply his mind to the merits of the two applications and had merely
rubber-stamped them. This approach on the part
of the magistrate
cannot fairly be laid at the door of the prosecution. To disallow the
State from bringing a fresh application would
be to penalise the
prosecution for the omissions of the magistrate.
A
further argument advanced by the defence was that should repeat
applications in effect be condoned by this Court, the effect would
be
to violate the accuseds' right to a speedy trial. As I understood
this argument its thrust was that the initial trial-within-a-trial,
which indeed lasted weeks, should, in the light of the magistrate's
approach, have been abandoned by the State which could possibly
then
have re-applied for subpoenas in fresh applications.
Having
chosen not to do so, the accused had been saddled with the
consequences of the initial lengthy trial-within-a-trial followed
by
the third trial-within-a-trial, with which we are presently
concerned. Not only have these sub-trials considerably lengthened
the
duration of the trial as a whole, they have imposed concomitant
financial pressures on the accused, most notably, the example
of
accused number 1 was cited as someone who could no longer afford to
pay his counsel or his legal representatives and was making
do with
their services on something other than a normal fee-paying basis.
This
argument, however, does not withstand scrutiny. Inevitably some
criminal trials last for a long period of time and the present
matter
is one such case. However, in the present instance this is a
consequence of many factors, including the number of accused
and
counsel involved, the broad range of the charges which encompass
three robberies over a period of months in different parts of
the
country. By way of illustration, the main State witness Aspeling
testified in chief for one court week, four days, and was
cross-examined
for a further two court weeks.
Furthermore,
the first trial-within-a-trial, although lengthy, was by no means
concerned solely with the admissibility of evidence
obtained pursuant
to the section 205 subpoenas. Much of it was taken up with detailed
defence from numerous witnesses concerning
the validity of warrants
of arrest in respect of the accused and their execution, including
the consequent searches of and seizures
from the accuseds’ places
of residence.
A related
factor to be taken into account is that the accused have exercised
their undoubted right to dispute the admissibility of
evidence
derived pursuant to the section 205 subpoenas, as well as the
validity of the arrest warrants, thus necessitating the leading
of
considerable evidence by the State in regard to these issues. Whilst
the accused are of course fully entitled to adopt such a
stance, it
hardly behoves them in these circumstances to attribute the lengthy
duration of the trial solely to the State.
The
argument that the State should have abandoned its reliance upon the
initial section 205 subpoenas rests upon the assumption that
the
State should have foreseen that one of its last witnesses, the
magistrate in question, would candidly testify that he had approved
the subpoenas only is such a criticism based upon hindsight, but it
also assumes that the State was aware that the magistrate would
so
testify under cross-examination. There is insufficient information
for me to make such an assumption.
I turn
now to the various criticisms of the process of applying for the
section 205 subpoenas. Mr
Mihalik
for accused number 1 contended that various misrepresentations had
been made in the applications. He referred in particular to paragraph
4 of Jonker's founding affidavit which states that certain cellphone
data had already been obtained but was ruled inadmissible by
this
Court in January 2006 when it found that the magistrate had not
exercised his discretion when considering the applications in
terms
of section 205.
Mr
Mihalik
pointed out that no reasons had been furnished for the ruling and
therefore that the investigating officer was misleading the
magistrate
in making this statement.
To
my mind there is no substance to this criticism. The magistrate's
failure to exercise a discretion was clearly the Achilles heel
of the
State's case in the first trial-within-a-trial in relation to the
section 205 subpoenas and the investigating officer was
merely
anticipating, albeit somewhat presumptuously, the Court's reasons for
the ruling. Nor is there any evidence to suggest that
the
investigating officer was thereby attempting to mislead the
magistrate.
I can,
furthermore, see no prejudice to the accused in a magistrate being
told directly that it is necessary for him to exercise his
or her
discretion when considering such an application.
The
only other misrepresentation on which Mr
Mihalik
relied is the first line of paragraph 4 of Jonker's affidavit dated
24 February 2006 which reads as follows:
"Selfoonnommers
is vanaf 'n bron ontvang wat beweer dat hy gehoor het dat die
verdagtes betrokke was by die pleging van die misdrywe."
This
appears to be a reference to one Alfred Mentoor who testified on a
limited ambit within the first trial-within-a-trial. Mr
Mihalik
argued that his evidence before this Court as to the accuseds’
involvement in the robberies was at odds with his sworn statement
which was before the magistrate and also at odds with the evidence of
at least one other State witness, Cottle, who testified that
he had
first received information from Mentoor as an informer. Mentoor's
evidence throughout, however, was that various accused were
involved
in the robberies and that they generally used certain cellphone
numbers which he had furnished.
Whether
his evidence was always consistent as to the basis upon which he
arrived at the conclusion that these accused were involved
in the
robberies may very well be the subject of debate and criticism. That,
however, in my view, is a matter which will no doubt
be fully argued
at the appropriate stage of this trial and did not justify being a
central issue for the magistrate, I do not see
that Jonker's failure
to point out possible discrepancies in the evidence of Mentoor
compromised the applications for the subpoenas.
The applications
were, moreover, in no way based solely upon Mentoor's sworn statement
since there was a wealth of other documentation
and evidence
linking the accused to various cellphone numbers and IMEI
numbers.
I accept
that in applications such as these the State is under an obligation
not to mislead the magistrate as to material facts or
aspects of the
matter, but nor is it under a duty to present to the magistrate such
arguments that the accuseds' legal representatives
might raise were
they party to the application.
In the
same vein it was contended on behalf of the accused that the
statements of persons who had already testified in the trial should
not have been put in front of the magistrate. Instead a transcript of
their evidence before the High Court should have been placed
before
the magistrate or, alternatively, a summary of their evidence. The
logistics of doing so would have entailed the State obtaining
thousands of pages of the transcript of this trial. This would have
taken a considerable amount of time, not to mention the expense.
As I
have mentioned, Aspeling alone testified for three court weeks. Even
a summary of his evidence, much of it irrelevant for the
magistrate's
purposes, would have entailed many hours of labour. The end result of
such an exercise would have been that the magistrate
would have been
faced with documentation entailing hundreds, if not thousands, of
pages rather than the already bulky bundle of one
hundred pages which
he eventually had to deal with.
Implicit in this argument
seems to be the suggestion that the magistrate would then have to
make credibility findings regarding these
witnesses, a task which
even this Court is presently not equipped to do in the absence of
hearing all the evidence and arguments.
In short, to require the
State to follow the procedures suggested by the defence would
certainly, in the circumstances of this matter,
render the procedure
in section 205 unworkable.
For
good measure, defence counsel also submitted that the accuseds' legal
representatives should have been given advance notification
and
opportunity to contest the applications. Similarly, if this
suggestion were to be followed, the magistrate, in dealing with these
applications, who, I estimate, must have spent between a half and a
full working day on them, would have been faced with a fully-fledged
opposed application entailing voluminous documentation which could
easily have taken up weeks of his time. Once again, such a process,
one neither provided for nor envisaged by the legislation, in my
view, would have rendered the section 205 evidence-gathering
procedure
completely impractical and unworkable.
Section
205 permits the State to use the compulsion of a possible prison
sentence to obtain information from any person who is likely
to give
material or relevant information as to any alleged defence. Once
the State has obtained such evidence it can tender it
in a trial
against an accused through an appropriate witness or witnesses. The
accused then has the opportunity to contest the admissibility
of that
defence on any possible ground. The section 205 process does not
render the evidence admissible and therefore there is no
warrant, in
my view, even in the context of an ongoing trial, to require as of
right the participation of the accused at a time when
the section 205
subpoenas are sought.
A further
objection to the process was the prominent role played by the
investigating officer and, by contrast, the limited role played
by
the Deputy Director of Public Prosecutions (the applicant) or his
delegee in the applications for the subpoenas. Mr
Mihalik
argued that the close involvement of the investigating officer in his
dealings with magistrate Maku were undesirable, particularly
seen
from the point of view of the accused's perceptions. In this regard
he relied on the case of
S
v Roberts
1999(4) SA 915 as offering guidance as to how the police should
interact with magistrates.
I accept
that as a general rule too close a relationship between the police
and the magistrate in the course of his of her exercising
a judicial
or
quasi
judicial
function
is undesirable to the extent that it may reasonably convey that the
magistrate is not acting independently. Some distinction
must,
however, be drawn between a magistrate acting as a presiding officer
and a magistrate exercising, as in this case, a limited
judicial or
quasi
judicial
function relating to the authorisation to issue a subpoena.
Roberts'
case is not directly on point, concerned as it is with communications
between the magistrate presiding and the prosecutor and defence
counsel during the course of a trial. It does appear that a practice
has developed whereby section 205 applications are placed before
magistrates by the investigating officer and that the prosecutor's
role is limited to that of being the applicant, but not moving
the
application before the magistrate him or herself.
It would seem to me that it
is desirable that the applicant or his or her delegee plays a greater
role in such proceedings, if only
to ensure that ethical constraints
are observed and to alleviate any impression that authorisations for
such subpoenas are there
merely for the asking. That said, there can
be no objection to the presence of or involvement in the procedure of
the investigating
officer who oft times is the person who has the
greatest working knowledge of the case. In the present matter there
has been no evidence
that the investigating officer acted
irregularly, improperly or unethically in his dealings with the
magistrate and his
central role in the proceedings is, in my view,
certainly not in itself improper.
A related
criticism of the process was that magistrate Maku had been too
accommodating with the investigating officer and thereby
the State's
interests in dealing with the applications. It was submitted further
that the magistrate had in fact "trained"
the investigating
officer by advising him what further information he should place
before him in order to secure authorisation of
the subpoenas.
These
submissions are not substantiated by the evidence. It was put by
defence counsel to both Jonker and to magistrate Maku on several
occasions that the latter had advised Jonker as to what further
documentation or statements he must procure and place before
him in
order to make out a proper case for the authorisation of the
subpoenas. Both witnesses denied this suggestion and, in my view,
convincingly so. Magistrate Maku was at pains to clarify that what he
had done was in essence to seek clarification from Jonker as
to the
links between the cellphone and handset numbers and the information
contained in the bundle placed before him which purportedly
linked
those numbers to the accused and other persons allegedly involved in
the robberies. Maku stated that he had not specified
what further
statements or documentation should be placed before him, but that in
response to the difficulties which he raised
with him, Jonker
furnished further clarificatory sworn affidavits from himself and
other supporting documentation.
Even on this scenario it was
argued that magistrate Maku had been too accommodating with the State
and it was suggested that he should
simply have read the application
in its initial form and refused or allowed it on its merits. I
cannot agree that such an approach
on the part of the magistrate was
the only proper one.
By
analogy, counsel appear unopposed and ex parte motions before the
High court on a regular basis. Where the presiding judge has
a
difficulty or a query relating to the merits of the application which
may well be cured by argument or even supplementary evidence,
he or
she will in most cases raise such difficulty or query with counsel,
thereby affording them an opportunity to attempt to remedy
the defect
or clarify some issue. If the presiding judge were in such
circumstances to adopt an approach of not disclosing his or
her
difficulties and merely dismiss or allow the application, the
administration of justice in that forum would, in my view, be
rendered
unnecessarily cumbersome and complicated.
To
my mind, the analogy which I have sketched above and which I put to
counsel in argument can also be applied to applications where
section
205 subpoenas are concerned. This approach enjoys some measure of
judicial approval, as Mr
Mihalik
himself fairly conceded, see
Haysom
v Additional Magistrate, Cape Town & Another
1979(3) SA 155 at 158G-H where
Van
Winsen, J
stated as follows:
"Should
he consider the information placed before him by the prosecutor to be
inadequate for the exercise of such a judgment
he will be entitled
the require the submission of further evidence".
Furthermore,
I was favourably impressed with the manner in which Mr Maku dealt
with the applications. He clearly heeded the new guidelines
which
emphasised that magistrates had to carefully consider such
applications. This is illustrated by the fact that he did not even
attempt to deal with the applications at the time they were placed
before him by Jonker. He clearly realised the need to take time
to
consider the applications at a time when he was less busy. When,
understandably, he had difficulty in making the necessary linkages
he
advised Jonker and directly or by implication sought clarification.
Even
when further documentation was forthcoming in relation to the
subpoenas sought against Vodacom, he applied his mind to the
application
and struck out two phone numbers, not being satisfied
that a case had been made out in respect thereof.
He
then took time to consider the second application and further
documentation which was furnished, clarifying its basis before
granting
the application and authorising the subpoenas. Mr Maku made
a most favourable impression on me as someone who properly and fully
appreciated his function as an independent official required to
exercise a judicial discretion as to the merits of the applications
before him. The only minor respect in which his evidence can be
faulted, in my view, was his description of his function as
administrative
whereas in truth it was judicial or
quasi
judicial.
This is a case, however, of attaching the wrong label to his function
and his evidence clearly demonstrated a proper appreciation
of his
role and function.
I
might add that the approach which Mr Maku followed in considering the
applications differed, as day does from night, from the manner
in
which the first set of applications was considered at the pre-trial
stage and this new critical approach can only be welcomed.
As
regards the late production of documents, it is so that Exhibit EEEE,
part of which had not previously been disclosed to defence
counsel,
was only made available to them approximately a week before the third
trial-within-a-trial commenced. It is regrettable
that these
documents were not disclosed at an earlier stage but I cannot see any
material prejudice to the accused, none of whom
sought time to deal
with the new material. A similar complaint cannot be entertained in
relation to the cellphone documentation since
much of it was obtained
pre-trial and made available to defence counsel.
A further
point raised was that the State had misused the provisions of section
205 which are intended only for recalcitrant witnesses.
Case
law does show that section 205 has in the past been used against
recalcitrant witnesses, particularly in cases of a political
nature.
The terms of the section do not, however, limit its
used to such circumstances and, in my view, it
constitutes a tool
which the prosecutor or investigating authorities can use in a range
of appropriate circumstances. There was evidence
before Court that
the major cellphone service provider companies will, not
surprisingly, not furnish cellphone records and documentation
relating to their subscribers without a "court order". An
ordinary subpoena or subpoena
duces
tecum
does
not carry the sanction of a Court directly, whereas a section 205
subpoena is authorised by a magistrate after the exercise by
such
an
official of a judicial discretion. In these circumstances I do
not regard it as inappropriate of the State to have used the
provisions
of section 205.
Certainly
it did not, in my view, constitute an abuse of the section's
provisions.
Defence
counsel also repeatedly referred in argument to the invasion of the
accuseds' right to privacy should the cellphone documentation
be
admitted in evidence. This stance sits somewhat uneasily with the
fact that none of the accused have testified in the
trial-within-a-trial
or admitted through their legal representatives
that any of the cellphone numbers listed in the subpoenas are numbers
which they
have ever used, nor are there any admissions in regard to
the handset numbers. In these circumstances; a claim of, or reliance
on,
an infringement of the accuseds' right to privacy is, at the very
least, weakened.
What must
also be taken into account in considering the extent of any invasion
of the accuseds' right to privacy, apart from the judicially
sanctioned constitutionality of section 205 of Act 51 of 1977, is the
extent of any invasion of privacy and the importance of the
evidence
forthcoming as a result of such an invasion of privacy. Judging by
similar records placed before a court, the cellphone
records sought
to be introduced will reveal the time, duration and date of all calls
made to and from the cellphone number in question.
They indicate
which numbers were called using that cellphone number or which
numbers called the cellphone number in question.
Furthermore,
the records reveal whether the call was a text message or a live
call. The content of the message is not recorded. Finally,
the
records also indicate, importantly so in this matter, near which
geographical base station the phone number initiating the calls
was
situated at the time of the call. When, therefore, the State's main
witness and accomplice, Aspeling, testified that at the time
of the
robberies he was contacted by various accused and other persons
involved in the robberies at or near various locations in
the Western
Cape, cellphone records relating to these numbers may very well offer
independent corroboration, not only of the making
of such calls, but
the whereabouts of the activating SIM card.
By and
large Aspeling's evidence implicating many of the accused was
strenuously disputed. The evidence sought to be admitted is therefore
potentially, at least, highly material to the issues in dispute in
the case. In determining the admissibility of the cellphone usage
records sought to be introduced, this Court must ultimately determine
whether its reception would render the trial unfair or otherwise
be
detrimental to the administration of justice.
Having
considered the various objections and criticisms of the process
raised by the accuseds' legal representatives, I have come
to the
conclusion that neither singly nor cumulatively are they such as to
compromise or violate the accuseds' rights to a fair trial
or their
right to privacy. Needless to say, the mere fact that such evidence
may be prejudicial to the accused does not in itself
means that their
rights to a fair trial are violated. Nor do I consider that the
reception of such evidence will be detrimental to
the administration
of justice. Both the State and the broader community which it
represents has an interest in seeing that evidence
which is material
to a criminal prosecution, if lawfully and fairly obtained, is placed
before a court for consideration and not
excluded on the basis of
overly technical or unfounded objections.
In the
circumstances I make the following order:
The
evidence obtained by the State pursuant to the
subpoenas
authorised in respect of Vodacom on 24
February 2006 and MTN on 9
March 2006 (pages 1-4 of
Annexure "EEE") is admissible.