SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA SITTING AT PALMRIDGE)
CASE NO: CC15/2022
(1) REPORTABLE:
(2) OF INTEREST TO THE JUDGES :
(3) REVISED.
DATE: 27/02/2025
SIGNATURE:
In the matter of
THE STATE
Versus
Martin Robin and Others Accused
RULING ON THE TRIAL WITHIN A TRIAL
Re: THE ADMISSIBILTY OF TWO CELL PHONES AND 4 SIMCARDS
MLOTSHWA AJ
1. This is a ruling in the trial within a trial to ascertain if the chain of custody of
cell phones and Sim cards allegedly found in possession of accused number
8 was or was not broken.
2. In order to prove that the chain was not broken the State called as wit nesses
Sergeant Leisa, Captain Fouche and Colonel Rakgetse. Accused testified for
the defence.
3. The court is not to going to repeat the evidence of the witnesses verbatim but
will refer to same whenever necessary .
4. Sergeant Leisa testified that o n 15 August 2019 he, Captain Fouche and
Warrant Officer McNeil, armed with a warrant of arrest and a search warrant
went to 1 […] C[...] Street, Bedworthpark, Vereeniging to look for one Vinus
Indonghela.
5. According to Seargeant Leisa they knocked at the door and a lady opened for
them. They introduced themselves and stated to the lady the purpose of their
visit.
6. In one of the rooms they found Tobias Mutota, who is accused 8 in this matter.
They introduced themselves and informed Mutota of the purpose of their visit
that they were looking for Mr Indonghela. According to Leisa, Mutota advised
them that Indonghela was not present.
7. Leisa testified that Mutota advised them that Indongela is his brother. Leisa
then asked Mutota for h is passport which was handed over to him by Mutota.
Leisa noticed that it’s a Namibian passport which was last stamped on 31 May
2019. Leisa suspected that Mutota might have overstayed in South Africa. He
then asked Mutota to accompany them to their office s.
8. Mutota had a white Samsung cell phone in his possession and there were two
cell phone Sim cards in the room. Leisa asked Mtutota whose cell phone was
that, that is the Samsung. Mutota replied that it is his cell phone. Leisa aske d
him about the Sim ca rds. Mutota informed Leisa that the Sim cards have not
been used. According to Leisa he nonetheless took the Sim cards with him.
Leisa t estified that they also found a Nokia cell phone from the accused
although he does not remember where they found it.
9. Leisa testified that he was in possession of the phones as they left with the
accused to their offices. At their offices he handed the phones to Captain
Fouche.
10. Captain Fouche asked the accused for the pin code of the white Samsung cell
phone . Mutota gave to him.
11. Sergeant Leisa testified that on the next day, 16th August 2019, he received
the phones and the Sim cards from Captain Fouche. The phones were in the
same condition that they were when they found them from Mutota, the
previous day. He then w ent to Vereeniging Police Station where he booked
the phones in the SAP 13. The SAP 13 number was 755 of 2019. After he
booked the cell phones at the SAP 13, he booked them out at the same time
and took the phones back to their offices and handed them to C aptain
Fouche. He never lost sight of the phones from when he took the m from
Captain Fouche until he brought the phones back to Captain Fouche.
12. The Nokia cell phone was green and black. The Samsung cell phone was
white.
13. The phones were sealed in two d ifferent forensic bags at their offices. The
bags were sealed by him, Sergeant Leisa. He can’t remember the forensic
bags seal numbers by heart, but he wrote them down in his statement. He
also doesn’t remember the IMEI numbers of the phones. He also wrote those
numbers in his statement.
14. Leisa was given his statement , which was handed in and marked as exhibit
FF1 which he recognised as his, which was signed by him and same was
commissioned. He confirms the correctness of the statement which he read
before signing it. From his statement he wrote the forensic bag number s
wherein he sealed the white Samsung cell phon e and the two Sim cards as
PA 5002450880. The IMEI number of the white Samsung Cell phone was
3[...]. The Samsung cell phone number is 0[...].
15. The forensic bag number s wherein he sealed the Nokia cell phone is PA
5002450879. The Nokia cel l phone number is 0[...]2 . The IMEI number is
3[...]2 .
16. Leisa testified that he did not tamper with the cell phones as well as with the
sim cards. The forensic bags were still sealed when he handed them back to
Captain Fouche.
17. Leisa was also given the certified copy of the SAP13 register, wherein he
booked th e phones and the sim cards, and which was handed in and marked
as exhibit FF2.
18. Leisa was extensively cross examined about the register which they allegedly
kept at their offices to book in the exhibits. Leisa testified that they had this
register and und ertook to bring same to court the following day. The following
day Leisa testified that they cannot locate the register in their offices.
19. Leisa was also extensively cross examined about the Vereeniging SAP 13
register, about the columns that were not com pleted in the register. Leisa
explained that when he went to the police station, he booked in the exhibits.
He retained them and took them back to their offices and handed same to
Captain Fouche. The court will revert to this issue at a later stage and loo k at
its significance or non-significance thereof.
20. Leisa was handed two forensic bags which contained cell phones and Sim
cards , and he testified that those are the phones and Sim cards that were
found in possession of accused 8.
21. Sergeant Leisa was extensively cross examined about the register that the
OLX team allegedly kept at their offices and in which they booked in the
exhibit. He was also cross examined about the SAP13 in which he booked in
the exhibits at the Vereeniging Police Station.
22. Sergeant Leisa steadfastly stood by his evidence in chief except to admit that
in his oral evidence in court he did not state that he returned to the room to
look for the accused’s passport and th at is when he found the Nokia cell
phone under the blanket.
23. The State called Colleen Sebolelo Rakgetse (Rakgetse) . She is a Colonel in
the South African Police Service, stationed at the Detective Cyber Crime
Investigations Unit. She has a diploma in Info rmation Technology and a
Bachelor of Technology Degree, all obtained from the Ts hwane University of
Technology. She has further completed courses relating to the
downloading/extraction of data from cellular phones, skimming devices and
computers. During No vember 2019 her rank was that of a Captain. Her day -
to-day duties included downloading data from cellular phones , skimming
devices and computers.
24. On 5 November 2019 she received sealed forensic evidence bags with
evidence bag numbers. The evidence bags were marked “Lenasia South
59/08/2019, SAP13/755/2019”. The instructions were for her to download data
from the handsets and the Sim cards .
25. The firs t exhibit bag ’s numbers were PA 5002450880 and it contained a
Samsung SM-A920F with IMEI number 3[...]3 . There was a Telkom Sim card
inside the Samsung cellular phone. The ICCID number of the card was 8[...].
There were also two l oose Sim cards in the forensic bag. The two loose Sim
cards were CLTE. The first CLTE ICCID number was 8[...]2 . The second CLTE
card ICCID number was 8[...]3
26. The second exhibit bag ’s numbers were PA 500245879 and it contained a
Nokia TA -1010 with IMEI numbers 3[...]3 . There was a Vodacom Sim card in
the cellular phone with ICCID number 8[...]5
27. Rakgetse testified that she received the exhibit bags from their office ’s
administration staff members. When they, as forensic investigators , receive
exhibit bags from the administration staff members they sign on an exhibit
register book to acknowledge receipt of the exhibit bag /s.
28. When an exhibit is brought to their unit, the administration staff member who
receives the exhibit bag allocates a number to the exhibit bag. The number is
called the Cyber Crime Investigation number, in short called , the CCI number.
This CCI number is then given to the investigating officer who will the n use
this number in all correspondence or queries between him and the Cyber
Crime Investigation Unit. A file is then opened by the administration staff
member for the case. The file is handed to the commander who will then in
turn allocate it to an investigator to comply with the instructions/request by the
investigating officer.
29. The cyber crime investigator, on receipt of the file with the instructions, will
then collect the exhibit bag from the administration staff member. As aforesaid
the cyber crime investigator will then sign the exhibit register book to
acknowledge receipt of the evidence bag. The exhibit register book will
therefore show who the cyber crime investigator is and when he /she collected
the exhibit bag from the administrati on staff member.
30. Rakgetse testified that the above procedure was duly followed in this matter.
The CCI number allocated to these evidence bags was 554/2019. A certified
copy of the relevant page of the exhibit register book was handed in to the
court and marked exhibit GG2 after R akgetse confirmed that same relates to
this case. GG2 indeed indicates the CCI number of this matter as 554/2019.
Raketse testified that she signed on column 5 of the page to acknowledge
receipt of the exhibit bags.
31. Rakgetse testified that she took the e xhibit bags to her office and took
photographs of the exhibit bags. She then took out the cellular phones out of
the bags and took photographs of the cellular phones as well. She took out
the Sim cards from the phones and took photographs of the Sim cards .
32. She put the items in the safe in her office and locked the safe with her safe
key. She is the only one who keeps the key to the safe. As their unit has a
shortage of resources, she then waited for her turn to use the office
equipment to comply with the instructions of the investigating officer . No one
had access to the forensic bags except herself.
33. When eventually she was able to use the office equipment, she connected the
Samsung cellular phone in the UFED forensic tool and used cable 100 to
download the data from the phone. She used UFED Sim reader to download
the data from the Telkom Sim card . No information was changed, altered or
taken away from the Sim cards . The loose Vodacom Sim card could not be
downloaded. She then generated a report as reque sted by the investigating
officer of the case. She then placed the exhibits , the Samsung cellular in a
new forensic bag with numbers: PA5002714437.
CAPTAIN FOUCHE
34. Captain Justus Fouche testified that he had a knowledge of the cell phone s
relevant to this trial within a trial.
35. On 15 August 2019 the two cell phones, a Samsung and a Nokia cell phone
were found in possession of accused 8, Tobias M utoti.
36. Fouche testified that on the morning of 15 August 2019 they went to execute a
warrant of arrest and a search warrant on House number 1 [..] C[...] Street,
Bethuethpark.
37. In one of the rooms in the house they found accused 8. Accused 8 was alone
in the room. He was in possession of a white Samsung cell phone. They took
accused 8 with the cell phone to his office.
38. At some stage Sergeant Leisa went back to house number 1 [...] C[...] Street,
Bethu ethepark with the accused. They went back there to look for the
accused’s passport which he may have left behind in the room. Sergeant
Leisa returned with a Nokia Cell phone.
39. According to Captain Fouche, the accused identified both cell phones as his
in the captain’s office. That was after the accused ha d been inform ed of his
Constitutional rights.
40. There were also 2 Sim cards found in possession of the accused which were
also placed in the vault by captain Fouche.
41. According to Captain Fouche they only accessed the sms messages from the
Nokia cell phone. The Samsung cell phone was accessed in the presence of
the accused when he identified it as his. No information was deleted, altered,
destroyed or changed when the p hones were accessed.
42. According to captain Fouche the phones were kept in the safe until the
following morning. He is the only one who has a key to the safe. Therefore no
one had access to the phones once put in the safe by him.
43. The following morning, h e and Sergeant Leisa accessed the safe and took out
the phones. Sergeant Leisa sealed the Samsung Cell phone with the Sim
cards in a forensic bag.
44. The Nokia cell phone was sealed by Sergeant Leisa in a separate forensic
bag. All this happened in the prese nce of the captain.
45. Captain Fouche testified that he can identify the cell phone s with the cell
phone numbers and their IMEI numbers. Captain Fouche testified that he can
not recall the evidence bag numbers by head. He also can not recall the IMEI
number s by head. He had noted these numbers in his statement.
46. According to Captain Fouche, Sergeant Leisa took the bags, and he
instructed him to go and book the cell phones in the SAP13 at Vereeniging
Police Station. Leisa did that and came bag with the cell phones at about
16h00 and put the cell phones back into the safe, that is the same safe in the
captain’s office. The seal bags were still properly sealed. The phones in the
seal bags remained kept in the safe.
47. The captain was given his statement which he recognised. The statement is
signed by the captain under oath. The statement was drafted and signed by
the captain. He confirmed the correctness of the content of the statement.
From the statement the captain read the IMEI number of the Samsung cell
phone as 3[...]
48. The Vodacom Sim card number was 8 […]3. The CLTE card number was
8[...]2 . The cell phone number of the Samsung cell phone was 0[...]. The
evidence bag number was PA 5002450880.
49. The IMEI number of the Nokia cell phone is 3[...]2 . The cell phone number of
the Nokia cell phone is 0 […]2. The evide nce bag number is PA 5002450879.
50. The above -mentioned evidence bags were kept in the safe. No one accessed
the safe as the key thereto was always kept by the captain. The reason to
place the evidence bags in the safe is to make sure that the cell phones ar e
not tampered with.
51. The captain handed the sealed bags to Warrant Officer Mills to take them to
the Cyber Crime Unit for downloading.
52. The phones were collected by Colonel Van der Merwe from the Cyber Crime
Unit. Colonel Van der Merwe was the commander of the unit at the time. The
captain received the cell phones back from Colonel van der Merwe in new
seal bags.
53. One of the forensic bags brought back by Colonel van der Merwe had the
original bag, 2 Sim cards and a white Samsung cell phone insi de. The bag
was properly sealed. The seal bag was numbered.
54. The other bag was also new and had a new seal bag number. It contained the
original seal bag and a Nokia cell phone. The bag was properly sealed.
55. According to Captain Fouche the bags contained the same cell phones and
Sim cards that were sent to the Cyber Crime Unit. The captain put these
bags , sealed as they are back into the safe and kept the key with him.
56. On asked by Mr Motloung, under cross ex amination, why he did not speak
about the register that they kept at their offices to register the exhibits, the
captain answered that it’s because he was not asked about it.
57. The captain explained that the safe that he talks about is like a walk in safe,
that is why he calls it a vault. They kept other exhibits in that vault that were
from the Forensic Science Laboratory that were to be delivered to the other
police units in their area of policing.
58. The register that they kept at their offices was to not e in that the register the
movements of exhibits that came to their offices. The register was not an
official SAPS 13 register. They used the register for their own OLX team
exhibits. The OLX team is the team that was formed to investigate the cases
that ar e the subject matter of the charges against the accused in this case
before court.
59. Captain Fouche testified that he did not know what happened to the register
that they kept at their office to register the exhibit. When he left the SAPS, the
register was in the vault. He heard from sergeant McNeil that the register is
missing.
60. Captain Fouche agreed that that register was important and that is why they
drafted it but he does not agree that without the register it was now not
possible to trace the movemen ts of those exhibit in that office because the
SAP13 register at Vereeniging Police Station is there.
61. The captain did not agree that in the absence of that register it is now difficult
to know the movements of those exhibits in that office. The captain a sserted
that the exhibits were sealed in a forensic bag which was sealed and whoever
handled the exhibits had to ascertain that the exhibits are properly sealed.
62. Captain Fouche testified that his statement does not state that Sergeant Leisa
went back to House 1 [...] C[...] Street with the accused because Seargeant
Leisa states this fact in his statement which the captain typed.
63. The captain denied that he deliberately left out to mention the register in his
evidence in chief because he knew the register is missing.
64. To a question by Advocate Malatsi -Tefo the captain stated that the
documentation of exhibits is a standard police p olicy that had to be adhered
to. The captain further stated that the OLX team was an ad hoc team with a
limited time span. According to Captain Fouche the policy required that the
exhibits had to be registered at a Police Station and then transferred to th e
unit. As the exhibits had to be registered at the unit as well, that is why they
drafted that register.
65. To a question by Advocate Mokoena the captain testified that he found the
Samsung Cell phone in the possession of accused 8. Accused had the phone
in his hand. Sergeant Leisa was also in the room.
66. Captain Fouche testified that he was not present when the Nokia Cell phone
was found as it was found by Seargeant Leisa at a later stage.
67. Captain Fouche testified that the phone was in good condition. He does not
remember if it had any scratches. He cannot remember anything remarkable
about the phone. He testi fied that the Sim cards were found by Sergeant
Leisa in the room, but he cannot remember if it was at the same time as when
the Samsung cell phone was found.
68. In the room a traffic ticket in the name of Vinus Indongela was found. The
accused told them tha t Indongela is his brother who has gone back to
Namibia.
69. It was put to the captain that the accused will deny that he told the police that
the room was his. The captain insisted that the accused told them that the
room was his.
70. Captain Fouche testified that accused 8 identified both cell phone s as his in
the captain’s office and that was when he came back with Leisa from looking
for his passport.
71. According to Captain Fouche the accused gave him the cell phone number of
the Samsung cell phone which was locked. The accused also gave to the
captain the pin code, 8 […]4 with which to unlock the Samsung cell phone.
This could have been between 07:00 and 10:00 that morning.
72. The captain testified that he had the items at his office as he had to access
the phones and the sms messages on the phones. This was after the accused
had identified both cell phones as his. He can’t remember if he also identified
the Sim cards . The Sim cards were still in their casings as i t seems they had
not been used yet.
73. When the captain was alone in his office the cell phones were not yet sealed
in the forensic bags as the phones were only put in the forensic bags and
sealed in the following morning.
74. The captain explained that Leisa went back to 1 [...] C[...] Street as at their
offices they could not find the accused’s passport, so they thought it was left
behind in his room and that is why Sergeant Leisa had to go back to the
house with the accused.
75. The captain can’t remember if Sergeant Leisa or the accused gave the cell
phone to him.
76. The captain testified that he worked on the Nokia cell phone when he was
alone in his office. He had worked on the Samsung cell phone when t he
accused was still present in his office.
77. The captain stated that Sergeant Leisa sealed the bags in his presence when
they were in the vault. the phones were kept in a ste el cabinet which was
inside the vault.
78. The captain was referred to his statement again. According to the statement
of Rakgetse the Vodacom ICCID number is 8[...]3 . The IMEI of the cell phone
is 8[...]3 whereas according to the captain ’s statement there is the extra
numbers being 8825MG. The ca ptain s tated that the numbers are the same
except that in his statement there is the extra 8825MG which is visible in the
Sim card but he cannot explain why Colonel Rakgetse did not put these
numbers in her statement.
79. It was also pointed out to the captain that the Samsung IMEI number in his
statement is not the same as in Rakgetse’s statement. In his statement the
number is 3[...], whereas Rakgetse ’s is 3[...]3 . The difference being that the
last digit /2 is not contained in Rakgetse’s stat ement. The captain answered
that as far as he knows the important numbers are the first 15 numbers. He is
not aware of the significance of the last digit of 2 .
80. According to the captain’s statement, the IMEI number of the Nokia Cell
phone is 3[...]2 , whereas Rakgetse’s IMEI numbers are 3[...]5. The captain
agreed that he can see the discrepancy, there is a digit 6 missing in
Rakgetse’s numbers.
81. The captain insisted that a cell phone IMEI number s are always 15. He
demonstrated this by opening his own cell phone dialling *#06# and gave the
IMEI numbers of his cell phone as 8[...]4 . The numbers are 15.
82. The captain agreed that the date of 20 August 2019 is the probable date on
which he gave the exhibits to Warrant Officer Mills to take to the Cyber Crime
Invest igation Unit for downloading as this is the date on which the Cyber
Crime Investigation Unit received the exhibit as per exhibit GG2.
83. The captain agreed that the exhibit could have been kept at his office for 6
days.
84. It was put to the captain that the accused 8 denies that the Nokia cell phone
belong s to him or that it was found in his possession . The captain stated that
accused 8 ide ntified the Nokia cell phone in his office as his and accused 8
provided the cell phone number s to the captain.
85. It was also put to the captain that the Samsung cell phone does not belong to
accused 8. The captain stated that it is not true as accused 8 provided the
captain with the cell phone numbers as well as the pin code to access the
phone. While in the office the phone rang and, on the screen, it appeared that
the caller was saved as Whitey. The accused told them that Whitey is his
brother , Vinus.
86. The captain stated that he answered the phone and told Vinus that there was
a warrant for his arrest, and he must hand himself over to the police a t
Vereeniging. Whitey told the captain that he is in Namibia and dropped the
call.
87. It was put to the captain , that the room in which they found the accused in, is
not his, but belongs to Vinus. The captain answered that they found the
accused alone in th at room.
88. It was put to the captain the Vodacom and CLTE Sim cards , do not belong to
accused 8. The captain responded by saying that accused 8 never denied
that the cards are his. He only told them that the cards have never been used.
89. The captain denied that the discrepancies of the numbers compromised the
identity of the cell phones.
90. It was put to the captain that the Samsung in the forensic bag does not belong
to the accused, and it is not the one that was found in his possession. The
captain said it can be answered when the forensic bag is opened and the
IMEI numbers compared , and with the pin code the accused gave to him.
91. It was put to the captain that the cell phone that the captain brought to court
has cracks whereas the one that the police seized from accused 8 was new.
The captain maintained that this could be established through the IMEI
numbers. The captain confirm ed that nothing was changed, altered or
interfered with on both phones.
92. The captain stated that no p hotograph s of the phones were taken.
93. On re -examination, the captain stated that he does not know what the ICCID
numbers are for. He was given the Samsung Sim card, and he confirm ed that
the IMEI numbers are in column forms.
94. An objection by the defence for the captain to charge the cell phone and open
it to ascertain the IMEI numbers of the phone . The objection was overruled.
The phone was therefore recharged and opened. The captain read the IMEI
numbers of the phone being the same as in his statement except that the
number in the phone end with /02 where the captain in his statement did not
have the 0 before the 2. In other words, the captain’s last number is /2 instead
of /02.
95. That was the case for the State in the trial within a trial.
96. Advocate Mokoena called her client, accused 8, Tobias Mutoti, to the witness
stand.
97. Mr Mutoti testified that he is aware that we are dealing with a trial within a trial
in respect of the two cell phones and Sim cards that the State alleged were
found in his possession.
98. He testified that on 15 August 2019, he was in the room of his cousin, Vinus
Indongela. At about 04:00 he heard a big sound. The door of the room was
being kicked inwar ds. He saw lights from a torch and a gun was put to his
face. There were a lot of people in the room. They shouted that they are
police.
99. The people instructed him to stand up. He did that. The police asked him if he
was Vinus. He responded by telling the police that he is Tobias. He told them
that Vinus is his cousin and has left for Namibia. According to the accused
there were more than ten people inside the room.
100. Captain Fouche asked him for his phone. He showed it to him. He was
instructed to lie wit h his stomach on the floor. Captain Fouche asked him for
the pin code of his phone. He, the accused , asked the captain what he was
going to do with his phone ’s pin code . They started to kick him , and he gave
them his pin code as he realised that he was goi ng to be hurt if he did not give
the police his phone ’s pin code .
101. The police started to search the room . Sergeant Leisa asked him for his
passport. He told him that the passport was in the wardrobe with other
documents. The police found a traffic ticket with the name of Vinus Indongela
and they said that he is the person that they were looking for.
102. After he had given the pin code to Captain Fouche, Captain Fouche worked
on the phone. It was a white Samsung cell phone.
103. After the police finished searching in the room, they then put him on the back
of a police van. From House 1 [...] C[...] Street, the police went to another
house where they also searched but not for a long time. The police then drove
with him to their offic es.
104. At the offices, the police instructed him to lie on the floor with his stomach.
Captain Fouche was busy with his (accused ’s) phone. He doesn’t know what
Captain Fouche was searching for on the phone.
105. The police then asked him for his passport. They searched him for his
passport. He doesn’t know if the police found the passport or not. They then
told him that he was under arrest.
106. One exhibit bag with the Nokia cell phone was handed over to the accused.
Accused testified that he does not know the Nok ia cell phone that was in the
exhibit bag. He had never seen the Nokia cell phone before.
107. The second exhibit bag with the Samsung cell phone was handed to the
accused. The accused looked at the Samsung cell phone and he testified that
the Samsung cell ph one is not his. He testified that this cell phone has cracks.
His was new. He testified that he saw here in court Captain Fouche switching
on the cell phone without a pin code. He testified that the one that the police
took from him required a pin code to be accessed .
108. Mutoti testified that it is not true that he went back with Sergeant Leisa to
House number 1 [...] C[...] Street. He stated that if Seargeant Leisa went back
to the house, he did that alone not with him.
109. Accused stated that Whitey is not Vinus but a friend.
110. Accused testified that at no stage was he asked to identify a cell phone or cell
phones. He stated that he last saw his cell phone when Captain Fouche was
working on it at their offices. He testified that from the captain’s office
Sergeant Leisa took him to the Vereeniging police station where he was
locked up in the cells .
111. To a question by Advocate Marriot the accused testified that both cell phones
in the exhibit bags are not his. He has no knowled ge of the contents of the cell
phones . Whether its WhatsApp messages or whatever else is in the phones ,
he has no knowledge of what is there .
112. He testified that Whitey is his friend and that is what he told Captain Fouche.
He testified that he has no idea why was this never put to Captain Fouche. He
testified that he was never alone with Captain Fouche. Leisa was always
there.
113. Accused testified he cannot remember his cell phone numbers nor the pin
code for his phone. And he cannot dispute the cell phone or pin code numbers
furnished by Captain Fouche as he cannot remember them.
114. Accused testified that Vinus left three days prior to the police arresting him.
He confirmed that his belongings were in the room in which the police found
him.
115. Accused 8 confirmed that a Samsung cell phone was found in his possession,
but it is not the one exhibited in court. It was put to the accused that it was
never denied to the police that the phones were found in his presence, what
was denied is that the ph ones were found in his possession. Accused stated
that his counsel did deny that.
116. It was put to the accused that it was never denied that both cell phones were
handed to the captain by Seargeant Leisa. Accused stated that he has no
comment to that.
117. Defence case. No witness were called on behalf of the defence.
118. Colonel Rakgetse was recalled by the court in terms of section 167 of the
Criminal Procedure Act to clarify issues that were not raised during her
evidence in chief and cross examination which b ecame contentious when
Captain Fouche was cross examined .
119. Rakgetse explained that there is a difference between the ICCID and IMEI
number s. The ICCID number s relate to Sim cards whereas the IMEI nu mber s
relate to the handset, that is the cell phone gadget.
120. She does not know if the ICCID numbers, in terms of digits are always the
same neither does she also know the those of the IMEI.
121. She testified that the extra digits of 8825 numbers and letters MG con tained in
Sergeant Leisa’s statement did not appear on her tool when she was
downloading the data from the Sim card . She did not need the extra numbers
and the letters , that is the 8825MG that appear on the captain’s statement to
do the extraction.
122. She further testified that as far as the forward slash 2 (/2) of Leisa’s statement
is concerned, that the /2 is not necessary for her purposes. And that the serial
number of the phone according to their tool does not include the /2. This as
the tool she used b rought up the IMEI numbers without the /2.
123. She confirmed that as far as the IMEI numbers of the Nokia cell phone, her
numbers were 14 whereas Sergeant Leisa’s numbers are 15. She conceded
that her numbers missed the digit 6 after the 77.
124. To a question by Advocate Marriot, Rakgetse testified that the serial numbers
indicated in Leisa statement refers to the same phone that she downloaded
except that Leisa did not mention the make of the phone.
125. She testified that the Nokia cell phone is th e same besides that she missed
the digit 6 in her statement. She further stated that the phones were in the
forensic bags which contained the same numbers as mentioned in Leisa’s
statement.
126. Asked by Mr Motloung she confirmed that she is not an expert on cell phones
she can not say if the IMEI numbers of a cell phone are 14 or 15.
127. She conceded that if there was a difference between her serial numbers and
those of the investigators, there would of course be a problem but fortunately
there are supporting d ocumentation to verify the phone.
128. To a question by Adv Mokoena, Rakgetse conceded that the serial number of
the Samsung in her statement ended with /6 whereas Leisa’s ended with /2
but insisted that it was still the same phone.
129. She insisted that the evidence bag s that Sergeant Leisa sealed the phones in
are the same evidence bags from which she took out the phone s.
130. She stated that she got the serial numbers from her tools when she was
downloading the data from the handset s.
131. Advocate Marriott for the State contended that the State proved that the chain
of custody of the exhibits was not broken and that the court should find that
the cell phones and the Sim cards are admi ssible and be used as evidence
against accused 8.
132. Wherea s Advocate Mokoena for accused 8 contend ed that the chain of
custody o f these exhibits had been broken immensely and that this evidence
is unreliable and may have been and or have been ta mpered with. She
therefore contends the court should rule the exhibit s are inadmissible as
evidence against accused 8 . She contends that to rule that the evidence is
admissible against the accused would render the trial to be unfair against
accused 8 as provided for by section 35 of the Constitution of South Africa.
133. The ma in bone of contentions by the defence are:
(i) The register used by the OLX team to register the exhibits has not been
produced in this court.
(ii) That the Samsung cell phone exhibited in this court is not the same
Samsung cell phone that was seized from the accused.
(iii) That the Nokia cell phone is not the property of the accused. That it was
not found in his possession.
(iv) That captain Fouche tampered with the exhibits when he worked on the
cell phones alone in his office.
(v) That the SAP13 register at the Vereeniging Police Station was not
completed correctly or that those who are indic ated to have completed
the columns of the register have not been called by the State to confirm
their signatures and to confirm that the exhibits were properly sealed.
(vi) That there is a difference between the IMEI numbers of the cell phone as
contained in the statement of Captain Fouche/Seargeant Leisa and
those in the statement of Colonel Rakgetse.
134. It is not disputed that a Samsung cell phone was seized from the possession
of accused 8. What is in dispute is whether the Samsung cell phone that is
presently presented in this court as an exhibit is the same Samsung cell
phone that was seized by the police from the accused. The court will come
back this issue in more detail later.
135. Accused 8 denies that the Nokia cell phone is his or that it was found in his
possession. He testified that he saw th is Nokia cell phone for the first time
here in court. On the other hand, Leisa testified that the cell phone was found
in the possession of the accused. In his evidence in chief Leisa testified that
he can’t remember exactly where the Nokia cell phone was found . But he
maintained that it was found in the possession of the accused. Only under
cross examination did he concede that in his statement he stated that he and
accused 8 went back to the room where they found the accused and when he
lifted a blanket o n the bed he found the Nokia cell phone. According to his
statement he and the accused went back to the room to look for the accused’s
passport as when they came to their offices, they could not locate the
accused’s passport. It was thought that the passpo rt was left behind in the
room.
136. Fouche in his oral evidence in court corroborate d what is stipulated in Leisa ’s
statement. That is the aspect that Leisa went back to the room to look for the
accused’s passport and that Leisa came back with the Nokia cell phone. This,
however, is not contained in the captain’s statement. He stated that the
reason this was not contained in his statement is because it is Leisa who went
there and he, the captain was not with Leisa when Leisa went back to the
room with accused 8.
137. According to both Leisa and Fouche, accused 8 ident ified the Nokia cell
phone as his. The police and the accused agree that the accused was alone
in the room.
138. The accused denies that he and Leisa went back to the room where the police
found him. And seemingly as an after thought he testified that if Leis a went
back to the room, he went there alone not with him. The accused testified that
at their offices the police asked him for his passport. He does not know if the
police found the passport or not. They simple thereafter told him that he is
under arrest. The accused did not testify as to what the police told him was
the reason for his arrest. To this end Advocate Mokoena referred the court to
the case of S v Ipeleng 1993 (2) SACR 185(T) which states that it is
dangerous to convict an accused person on the basis that he cannot advance
a reason why the State witness will falsely implicate him. In my view, there is
a difference between asking an accused to explain why a state witness will
falsely implicate him and asking him if the police told him why he is arrested.
Its simple its either the police told him why he is arrested or not. This is
different from asking why the police would lie and say he was arrested for this
whereas he was arrested from something else.
139. It is so that there is a void between Leisa’s oral evidence in court and his
statement. But can that then mean that his evidence must therefore be
rejected? In S v Oosthuizen 1982 (3) SA 571 it was held that “Not every error
made by a witness affects his credibility, in each case the trier of fact has to
take into account such matters as the nature of the contradictions, their
number and importance and their bearing on other parts of the witnesses’
evidence. The court must after evaluating the evidence be satisfied that the
truth has b een told. ”
140. The court is mindful that this incident took place almost 5 years ago and
obviously because of the fallibility of the human memory some details would
be hard to remember. The court takes cognisance that Leisa deposed to his
statement on 16 Augu st 2019 a day after the incident when the events of the
previous day were still fresh in his memory. The court accepts considering the
contemporaneity of his statement and the events that what is contained in his
statement is true.
141. The court finds that t he Nokia cell phone was found in the possession of the
accused . That it is his phone, and it was under his control. The court accepts
that Leisa as per his statement and as corroborated by Fouche went back to
the room where he in the company of Accused 8 found the Nokia cell phone in
the room occupied by the accused. If this was not so, it would not have been
necessary for Leisa to complicate things and state that he and accused 8
went back to the room because they could not locate the accused ’s passport
in their office. If the police were lying in this respect, they would simple have
testified that the Nokia cell phone was found together with the Samsung cell
phone and the Sim cards when the accused was picked up at 1[...] C[...]
Street, Bethworth park.
142. On the other hand , Fouche testified that after he warned the accused of his
constitutional rights, the accused admitted that the Nokia cell phone is his .
The accused gave him the cell phone number s of this Nokia cell phone. He
accessed the Nokia cell phone and because of information he saw on the
phone he then arrested the accused. And that is why the police arrest ed the
accused. By that time , according to evidence the police did not have his
passpo rt and his status in the country had not yet been established.
143. The evidence of both Sergeant Leisa and Captain Fouche is that they kept an
exhibit register at their offices to make entries of exhibits relating to the OLX
cases. They testified that they made an entry into the register when the
exhibits were put into the forensic exhibit bags.
144. It is, in fact , so according to the evidence of both Sergeant Leisa and Captain
Fouche that the register to record the exhibit at the OLX team offices is now
not traceable. Both do not know what happened to this register. According to
Captain Fouche he left the register in the safe when he retired from the SAPS.
145. There is no reason for both Sergeant Leisa or the captain to mention that the
exhibit s were registered in the exhibit register if th is register did not exist . In
fact, Sergeant Leisa was so confident about th e existence of the register that
he undertook to go to their offices and come back with the register on the
following day. If there was no such register, it is difficult to believe that he
would have undertaken to do this if he knew that there was no such reg ister.
146. This court finds that Leisa as testified documented these exhibit bags in the
exhibit register in their offices. There is no basis to find that the exhibits were
not properly documented at the offices of the OLX team.
147. There is no evidence before this court that the exhibits were interfered with,
tampered or altered in any way at the offices of Captain Fouche. The court
can not infer that because Captain Fouche was left alone with the phones
whilst he worked on them, he therefore tampered with the phones. Of course,
it would have been ideal for the captain, to work on the cell phones in the
presence of the accused. But there is no reason to infer that he interfered or
tampered with the phones in any form or manner.
148. In S v Mtsweni 1985 (1) SA 590 A , it was stated that “Inference must
carefully be distinguished from conjecture and speculation. There can be no
inference unless there are objective facts to infer to the other facts which to
establish. In some cases, the other facts can be inferred with as much
practical certainty as if they had been actually observed, in other words the
inference does not go beyond reasonable probability. But if there are no
positive facts from which the inference can be made, the method of inference
fails and what is left is mere speculation or conjecture.”
149. According to advocate Mokoena, this court should without any shred of
evidence infer that Captain Fouche tampered with the exhibits only by reason
that he was left with the phones alone in his office when workin g on these
phones.
150. According to Advocate Mtsweni, the fact that the Samsung cell phone could
now be accessed without a pin code as alleged by the accused and as in fact
testified to by Captain Fouche means that the Samsung cell phone has been
tampered wi th. The problem with the contention by Advocate Mtsweni is ,
firstly that he assumes that this Samsung cell phone is the same one that was
seized from the accused whereas the accused denies that this Samsung cell
phone is his. The second problem is as state d above there is no shred of
evidence or a reason to infer that the Samsung cell phone has been tampered
with.
151. In S v Makhubo (A20/2023) [2023] ZAFSHC 185 (2 October 2023) the court
held that the mere challenge of the evidence will not be sufficient to af fect the
evidential value of prima facie evidence presented by the State. An accused
who does so is obliged to lay a foundation for contesting such evidence. No
foundation was laid in this matter to suggest or even to infer that the police
tampered or inte rfered with the exhibits. This court can not make a finding on
speculation or conjecture .
152. Advocate Mokoena further urged the court that it should find that the chain of
custody of the exhibits was not properly proved by reason that the officers
who compl eted and signed the SAP13 register at Vereeniging Police Station
were not called to testify to the authenticity of their signatures and to testify
about the state of the exhibit bags when the bags were at the police station.
She referred the court to decid ed cases, amongst others the cases of S v
Matshaba 2016 (2) SACR 651 (NWM) in which it was stated that the State
must establish the name of each person who handled the evidence, the date
on which it was handled and the duration.
153. Also in S v Ndlovu [ 2023] ZWBHC 2 (23 November 2023 ), it was stated that
it must be shown in court that the evidence is authent ic i.e. it is the same
exhibit seized at the crime scene and it was at all times in the custody of a
person designated to handle it.
154. If I understand these cases correctly, what is stated is that the State must
always account for who handled the exhibits a t all the relevant times. If that is
the case, do we have a missing link in this matter as to who handled the
exhibits from time to time. In other words, do we have a period in which we
don’t know where and, in whose possession the exhibits were ? Or do we
have a period in which we don’t know who handled the exhibits ? I don’t think
so.
155. The evidence in this court is that the exhibits were at all times known where
they were kept or handled and who was responsible for them. The evidence
of both Fouche and Leisa is that the exhibit s were kept in the safe over the
night of 15/16 August 20 19. S ergeant Leisa testified that he took the exhibits
to the Vereeniging Police Station on 16 August 2019 to book them in the
SAP13 there . He made an entry of the exhibits i n the SAP13 and as required
in terms of the SAP 13 requested the officer in charge to “receive” the exhibits
and release them to him at the same time. There is no evidence that the
officers at the police station handled the exhibits. The exhibits were neve r
taken into the SAP13 room. Leisa explained that usually when an officer takes
exhibits to the police station the officer will hand them over to the officer in
charge at the Client Service Centre where the SAP13 register is kept. The
SAP13 clerk collects and signs for all the exhibits at the end of the day shift.
In this case, he did not hand over the exhibits at the Client Service Centre. He
only book ed them in and retained the exhibits which he then took them to
Captain Fouche. Captain Fouche kept the ex hibits until they were taken to the
Cyber Crime Investigation Unit for downloading.
156. In any event the Supreme Court of Appeal in S v Jantjies en Ander 1993 (2)
SACR 475 (A ) approved of the dictum of Eloff J in S v Boyce 1990 (1) SACR
13 (T) where the learned Judge said;
“Waar n ontleder n gemerkte en verseelde pakket in dieselfde toestand
as waarin dit versend is, ontvang dit nie van belang is in wie se
bewaring die gseelde houer was va ndat die monster geneem is totdat
dit by die ontleder u itgekom het nie.”
157. In other words, the Appeal Court found that when an analyst receives a
marked and sealed evidence bag in the same condition in which it was sent to
him or her it is not necessary to prove in whose custody the sealed bag was
from when the exhibit was taken until it reaches the analyst.
158. The court further stated that
“Wat wel van belang was, en wat deur die staat bewys moes word, was
dat die tablette wat Sersant Swart in die besit van die appellante gekry
het, dieselde tablette is wat by on tleding bevind is metakaloon te bevat.
Dit is prima facie bewys deur die bewerings in die beedigde verklaring
rakende die ontvangs van die verseelde en gemerkte pakket, en die
ontleiding van die inhoud daarvan.”
159. The cases quoted by Advocate Mokoena are ca ses that were decided in the
Provincial Divisions. The Jantjies decision is a decision of the Supreme Court
of Appeal, and I am not aware that the decision has ever been overturned. So,
I am bound to follow it. The courts that decided the matters mentioned by
Advocate Mokoena for reasons unknown to this court, did not refer to the
Jantjies matter.
160. I therefore find that there is no substance in the argument that the State was
obliged to call the officers who completed and signed the SAP13 register at
the Vereeniging Police Station. In any event as I indicated above, there is no
evidence that they han dled the exhibit bags.
161. In her work titled “DNA in the courtroom, Principles and Practice” Lierinka
Mentjies -Van der Walt posits as follows:
“The chain of custody requirements has two objectives:
(a) The first is to lay a proper foundation connecting the evi dence to the
accused or to a place or object that is relevant to the case.
(b) The second purpose of the chain of custody for physical evidence is to
ensure that the object is what its proponent claims it to be.
(c) She further states that the chain of custody is the means of verifying the
authenticity and legal integrity of trace or sa mple evidence by
establishing where the evidence has been and who handled it prior to
the trial. Any person who had contact with the evidence must also be
accounted for. ”
162. According to Leisa he placed the Samsung cell phone with the Sim cards in a
forens ic exhibit bag with seal number PA5002450880 and the Nokia cell
phone in a forensic exhibit bag with seal number PA5002450879 .
163. If I understood the arguments of both the State and the defence, there is no
dispute that Colonel Rakgetse received forensic bags with the ser al numbers
that correspond with the aforementioned seal numbers. That is in fact, her
evidence.
164. According to Lei sa and Fouche the cell phone number of the Nokia cell phone
was or is 0[...]2 and the IMEI number is 3[...]2 .
165. Further a ccording to Leisa and Fouche the cell phone number s of the
Samsung cell phone is 0[...] and the IMEI number is 3[...].
166. The question is whether the cell phones that were found in the possession of
accused 8 are the same cell phones in the exhibit bag s that ha ve been
brought to court as exhibits.
167. The court has already indicated that there is no dispute that a Samsung cell
phone was seized by the police from accused 8. The accused disputes that
the Samsung cell phone that is in the exhibit bag is his. It was put to Captain
Fouche through his counsel that his cell phone was new and had no
scratches, that the Samsung cell phone brought to court has scratches.
Captain Fouche responded and said it can be proved through accessing the
cell phone using the pin code that the accused gave to him and thereafte r
ascertain the IMEI number of the phone.
168. The above question by Advocate Mokoena and response of Captain Fouche
prompted Advocate Marriott in her re -examination of the captain to request
the captain to charge the phone and to access the phone through the pin
code to ascertain the IMEI numbers of the phone. The defence objected to
this process contending that it amounted to leading new evidence. The court
as aforesaid, overruled the objection.
169. The captain charged the Samsung cell phone. After charging it sufficiently, he
accessed the phone without a pin code which was allegedly furnished to him
by accused 8. He then dialled the *#06# to access the IMEI numbers of the
cell phone. He read the IMEI numbers as 3[...]4 .
170. Advocate Mokoena contends th at the IMEI numbers of the Samsung Cell
phone are not the same because the numbers read by the captain in court
end with /02 whereas those of Colonel Rakgetse end with /6. In view of the
court’s opinion regarding the identity of the phone the court is not going to go
into detail as to the discrepancy of the numbers.
171. The court’s main concern is that this Samsung Cell phone in the exhibit bag
was accessed by the captain without the need to dial a pin code as alluded to
by the captain and the accused. The court allowed the captain to charge the
phone so that he could precisely demonstrate that the phone is accessed
through a pin code supplied to him by the accused and to ascertain if the IMEI
numbers are the same as per his statement.
172. There was no explanation from the captain as to why the phone could now be
accessed through no pin code. Advocate Marriott stated that that could be
because the phone has been accessed at the Cyber Crime Investigation Unit.
That is speculation. And in any event as alluded to by Mr Mtsweni, there is no
evidence that Colonel Rakg etse was supplied with a pin code to access the
phone. And even if so, the phone would have presumable have locked after
the Colonel had worked on it. But all these are speculations.
173. As stated in the work of Lierinka Mentjies -van der Walt a foundation shou ld be
laid connecting the evidence to the accused . The court must be certain that
the evidence is what its proponent claims it to be.
174. As it happened in the case of Bamba v S, (20089/14) [2014] ZASCA 219 the
phones were not placed in an exhibit bag when they were put in the safe
where there were other exhibits . As I said I don’t to express a view about the
correctness of the IMEI numbers . Although the facts of the Bamba case are
distinguishable from the facts of this case the court held that utmost c are is
required of police in recovering, storing, recording and conveying exhibits.
THE SIMCARDS
175. In the courts view, there was not much contentious arguments about the
identity of the SIM cards except that Leisa did not note the ICCID numbers of
the cards when he registered the exhibits in the SAP13 register at the
Vereeniging Police Station. The other issue is with the extra numbers and
letters of 8225 MG on one of the SIM cards. In the co urts view this is not a
serious discrepancy as was explained by Colonel Rakgetse that she got the
numbers from her tool when she downloaded the data from the card, these
extra numbers and letters did not appear from the tool and the tool did not
need these extra numbers and letters to download the data from the Sim card .
THE NOKIA CELL PHONE
176. The court has already found that the Nokia cell phone is the property or was
in the possession of accused 8. The first leg of the Lierinka Meintjie -van der
Walt purpo se of the chain of the evidence is proved that the Nokia cell phone
is linked to the accused. The second purpose is ascertain whether the Nokia
cell phone sent to the Cyber Crime Investigation Unit is the same Nokia cell
phone that was seized from the accu sed and whether it is the same that is in
the exhibit bag brought to court.
177. As per the testimony of Leisa, he placed the Nokia cell phone, with the IMEI
number 3[...]2 in an exhibit forensic bag with the seal number PA5002450879.
178. This seal bag was delivered at the Cyber Crime Investigation Unit by Warrant
Officer Mills. The exhibit was allocated to Colonel Rakgetse for downloading.
According to Rakgetse , she took a photograph of the forensic bag, the cell
phone and the Sim card that she found inside the phone. According to her, the
IMEI number of the Nokia cell phone was 3[...]3 and the SIM card ICCID
number was 8[...]5 .
179. Rakgetse, d uring her initial evidence in chief and cross examination was not
questioned about the correctness of the IMEI numbers. Only when Captain
Fouche was cross examined, the defence raised the discrepancy in the IMEI
numbers, pointing out that Rakgetse’s number s were 14 whereas the
captain’s numbers were 15. The captain testified that the IMEI numbers of a
cell phone are always 15. To demonstrate this, he took out his cell phone
dialled #06# and gave the IMEI numbers of his cell phone as 8[...]4 . The
numbers are in fact 15.
180. The court considered the recalling of Rakgetse as essential in the outcome of
the case and ordered in terms of section176 of the Criminal Procedure Act 51
of 1977 that Colonel Rakgetse be recalled.
181. When asked by the court to point out the discrepancy of the IMEI numbers in
her statement and those of Sergeant Leisa, t he Colonel testified that in her
number she missed to include the digit 6 after the 77 digits. In other words,
the numbers in her statement after the 77 digits are 274 i nstead of 6274.
182. Under cross examination by Mr Motloung, she confirmed that she is not an
expert on cell phones. Her duties is just to download data form the exhibits
sent to the Unit . She can not say whether her numbers are correct or those of
the captain or sergeant Leisa are correct. But that she will ascribe the mistake
to herself as Leisa as the investigating officer would know the correct
numbers.
183. It is clear from a perusal of the numbers and the evidence of Captain Fouche
that the Colonel when she wrote the IMEI numbers of the Nokia cell phone
missed the digit 6 after the digits of 77. One does not have to be a rocket
scientist to notice the omissi on which the Colonel ascribed to her mistake.
184. It cannot be a mere coincident that the Nokia cell phone that fits the
description by Sergeant Leisa and Captain Fouche, that is placed in the
forensic bag number s described by both Sergeant Leisa and Captain Fouche,
that the forensic bag with the same corresponding number as recorded by
Leisa and with a similar IMEI number except that the IMEI number recorded
by the Colonel is short of one digit, which is the digit 6, is totally a different
Nokia cell phone t han that the one seized from the accused by the police.
185. The court is satisfied that the Nokia cell phone that was downloaded by the
Colonel is the same Nokia cell phone that was seized from the possession of
accused 8 and is the Nokia cell phone in the e xhibit bag that was resealed
with the SIM card in a new forensic bag with number PA5002714438.
186. As alluded to earlier the State failed to prove that the Samsung cell phone
presented as an exhibit in this court is the same Samsung cell phone that the
police seized from accused 8 by virtue that there is no explanation why the
Samsung cell phone that is presented as exhibit in court does not now require
a pin code to be accessed.
The court therefore makes the following orders:
(i) The Samsung cell phone with IMEI number 3[...] or /02 and the Sim card with
cell phone numbers 0[...] and ICCID number 8[...] are not admitted as
evidence against Accused 8 and its contents may not be opened.
(ii) The SIM cards with ICCID numbers
(a) 8[...]2
(b) 8[...]3 and
(c) 8[...]5 are admitted as evidence against Accused 8.
(iii) The Nokia cell phone with cell phone numbers 0[...]2 and IMEI number 3[...]2
is admitted as evidence against Accused 8 and its contents may be opened
and used as evidence against Accused 8.
Dated at Palmridge on this 27th day of February 2025
--------------------------------
JJ MLOTSHWA
Acting Judge of the High Court, Pretoria