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[2015] ZAWCHC 128
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S v Brown (CC 54/2014) [2015] ZAWCHC 128 (17 August 2015)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO:CC 54/2014
DATE:
17 AUGUST 2015
REPORTABLE
In
the matter between:
THE
STATE
Versus
TERRANCE
STEPHAN
BROWN
..............................................................
Accused
REASONSFORRULINGINTRIALWITHINATRIALMADEON17AUGUST
2015
BOZALEK,
J:
[1]
On 17 August 2015, at the conclusion of a
trial within a trial, I ruled that certain images found on a mobile
phone,
Exhibit 1
in the trial (‘the phone’), were admissible in evidence
and these are the reasons for that ruling.
[2]
The accused stood trial on two counts of
attempted murder, one count of murder and certain ancillary charges,
all of which arose
out of an incident in 16
th
Street, Bishop Lavis on the evening of 9 March 2014 when an
unsuccessful attempt was made on the life of a gang member.
Tragically,
a young child was fatally wounded and another bystander
shot in the leg in the incident. The State’s principal witness
identified
the accused as the gunman and testified that she observed
something drop from his pocket during the shooting. Immediately after
the gunman left she returned to the scene and found that it was a
phone which she identified as
Exhibit
1
. Shortly thereafter she gave the
phone to Dylan Botha, a member of the criminal gang to which her
partner, one Reagan Baptiste,
and who had been the target of the
original shooting, also belonged. This witness, Ms Joy Cronje
(‘Cronje’), was unable
to state what Botha had done with
the mobile phone. In later testimony it emerged that Botha had been
shot dead in 2015.
[3]
The accused pleaded not guilty to the
charges and raised an alibi. In the course of his written plea
explanation he stated that
he had lost his mobile phone on the day
prior to the shooting incident. In addition his counsel, Mr Mohamed,
put to the various
witnesses that the phone placed before Court,
Exhibit 1
,
was not the accused’s. When the prosecutor gave notice that she
proposed to lead evidence concerning material which had been
downloaded from the phone, Mr Mohamed stated that he objected to the
admissibility of the evidence on the following grounds:
1.
that the integrity of the ‘
chain’
i.e. the evidence of safekeeping of the phone from the time that it
was allegedly picked up by Cronje to the time that material
was
downloaded therefrom, had not been, and could not be, proved;
2.
that the evidence sought to be admitted was
both hearsay and irrelevant;
3.
that such evidence was not covered by the
terms of a subpoena issued by a magistrate in relation to the phone
in terms of
sec 205
of the
Criminal Procedure Act, 51 of 1977
;
4.
in any event, any material downloaded from
the phone without the authorisation of a magistrate was unlawful and
an invasion of privacy.
[4]
A trial within a trial was held to
determine the admissibility of the material sought to be introduced
by the State which, at that
stage, comprised 5 images or photographs
found amongst those stored on the phone. During the course of the
enquiry counsel for
the State indicated that it sought only to rely
on three of the five images and advised that the material was
tendered simply with
a view to proving that the phone in question was
that of the accused or, more accurately, had been in his possession
at the time
of the shooting.
SUMMARY
OF THE EVIDENCE IN THE TRIAL WITHIN A TRIAL
[5]
The state led the evidence of four
witnesses, the first of which was Lieutenant Colonel Linnen, the
commander of the Co-ordination
Centre (also known as the ‘
War
Room’
), a newly created technical
division of the SAPS. He testified that his everyday duties involved
downloading video surveillance
material and data from mobile phones.
Such data could include the lists of contacts on a phone, video and
photographic images as
well as the messages sent or received through
the phone using various messaging formats. This he was able to do
using a computer
software programme available to the police since
approximately 2008 and in respect of which he had received training.
According
to Linnen the programme emanates from Sweden and is widely
used by security agencies internationally.
[6]
To effect the downloading from a mobile
phone it is simply connected to a laptop containing the software
programme which then proceeds
to read all the data on the phone and,
using the same principle as Bluetooth, downloads it into a file.
Linnen testified that the
software programme in question did not
permit any tampering with the data on a phone, either purposefully or
accidentally. Linnen
testified that if, for example, he used the
phone in question before downloading its contents, this would reflect
in the data which
is downloaded. In the present case he had deleted
nothing from the phone and, even if information was deleted, it could
be retrieved.
Questioned about the security of the phone whilst it
was in the custody of his unit he explained that its integrity was
ensured
by careful procedures, all of which had been documented.
Linnen added that the integrity of the exhibit prior to its reaching
his
unit was not something over which he had any control nor would
he, in the ordinary course, investigate this aspect.
[7]
Asked about the legal basis for his
authority to download material off a mobile phone, Linnen cited the
provisions of sec 20 of
the Criminal Procedure Act, 51 of 1977 (‘the
CPA’) and sec 15 of the Electronic Communications and
Transactions Act,
25 of 2002 (the ECTA’). He explained that as
far as details of the ownership or registration of a mobile phone,
including
its SIM card, are concerned, these so-called RICA details
(an acronym for the Regulation of Interception of Communications and
Provision of Communication-Related Information Act, 70 of 2002) could
only be obtained from the relevant service provider and not
through
the software programme his unit used. When, using a standardised
form, a mobile phone is presented to him by an investigating
officer
with a request to download material, he assumes that the device has
been lawfully obtained.
[8]
Regarding the phone in question Linnen
testified that it was received by his unit on 25 March 2014 and that
he personally received
it the following day. He then effected the
download in a matter of some twenty minutes, producing a 29 page
file. Thereafter the
file had been viewed by the investigating
officer who had selected five images (stored photographs) which he
wished to utilise
in criminal proceedings against the accused. The
data downloaded from the phone indicated that the five images had
been sent to
the phone within 2 or 3 minutes of each other at
approximately 13:26 on 7 March 2014 from certain other mobile phones,
the make
and model of which he could identify. Because of the small
size of the images as they appeared in the downloaded file he had
them
enlarged for viewing purposes. Finally, Linnen explained that he
had obtained the telephone number relating to the phone’s
SIM
card by using it to send a ‘
please
call me’
message to his own phone
and reading the telephone number off that received message.
[9]
Sergeant Koki, the investigating officer,
confirmed that he had booked the phone into the Command Centre with a
request that photographic
images, text and contacts lists be
downloaded, for the purposes, initially, of a bail application
brought by the accused which
was to have commenced in May 2014. Koki
had eventually selected the images downloaded from the phone on which
the State now sought
to rely. He testified that he had first become
aware of the existence of the phone on the day after the shooting
when he noted
that it had been booked into the police station’s
SAP 13 register in the early hours of that day by a colleague, Major
Muller.
After he had read Muller’s statement regarding his
handing in of the phone and discussed the matter with him he had
decided
to have the contents of the phone analysed. He identified the
phone which had been handed in at Bishop Lavis police station by
Major Muller as
Exhibit 1
before the Court. On that same day he had taken a statement from the
witness, Cronje, wherein she made mention of a phone which
she said
she had picked up at the crime scene and handed to Dylan Botha very
shortly after the shooting. Koki testified that he
had obtained the
RICA details relating to the registration/ownership of the phone and
SIM card from the service provider by using
the phone’s number
which Colonel Linnen had provided to him. He obtained the RICA
information by applying to a magistrate
for a subpoena in terms of
sec 205 of the CPA requiring the service provider to provide such
information. That information indicated
that the SIM card was
registered in the name of one Francois Leendertz at a certain address
in Delft. When he tried to trace this
person he found that no one at
the address knew anything about him and various other avenues he
explored were also unsuccessful.
[10]
Major Muller testified that he had been on
duty at the crime scene on the night of the shooting. Later that
night, at Bishop Lavis
police station, he had been approached by a
member of the neighbourhood watch well known to him and who had
handed him a red mobile
phone on the basis that he did not want his
name to be used at any stage for fear of possible reprisals. That
person told him that
another unnamed person had handed him the phone
earlier that night stating that it had been picked up at the scene of
the shooting
by a gang member, also unnamed. These last intimations
were, of course, hearsay, but since defence counsel indicated that he
had
no objection thereto I allowed the evidence for the purpose of
explaining why Major Muller had considered it appropriate to take
possession of the phone and book it in as an exhibit through the SAP
13 register. He identified
Exhibit 1
as the phone which he had been handed by the neighbourhood watch
member. In cross-examination Muller conceded that he could not
say
whether anyone had tampered with the phone between the time it was
first picked up and when it was handed to him.
[11]
The accused did not give evidence in the
trial within a trial nor did he lead any witnesses.
[12]
On behalf of the accused counsel relied on
the various grounds earlier cited for the exclusion of the evidence
contending that its
admission would violate his client’s rights
to a fair trial in terms of sec 35(3) and (5) of the Constitution. On
the State’s
part it was contended that the phone had been
lawfully obtained, that the downloading of data had been lawful and
did not require
the authority of a magistrate and that no right to
privacy had been violated. Further, it was contended, the images in
question
were real evidence which should be admitted since there was
no proof that there had been any tampering with this data.
DISCUSSION
[13]
It is useful first to set out certain of
the main prescriptions relating to the admission of evidence and, in
particular, evidence
which constitutes electronic communication.
[14]
As
a starting point, sec 35(5) of the Constitution provides that
evidence obtained in a manner that violates any right in the Bill
of
Rights must be excluded if the admission of that evidence would
render a trial unfair or otherwise be detrimental to the
administration
of justice. Generally speaking, where evidence is
obtained without a warrant or direction, with an improperly obtained
warrant
or direction, or without following the conditions set out in
the warrant or direction, a Court must decide whether to admit it or
not. In
Key
v Attorney-General, Cape Provincial Division, and Another
[1]
Kriegler J summed up the position as follows at paragraph [13], 196 A
- B:
‘
What
the Constitution demands is that the accused be given a fair trial.
Ultimately …, fairness is an issue which has to
be decided
upon the facts of each case, and the trial Judge is the person best
placed to take that decision. At times fairness
might require that
evidence unconstitutionally obtained be excluded. But there will also
be times when fairness will require that
evidence, albeit obtained
unconstitutionally, nevertheless be admitted’.
[15]
Section 20 of the CPA provides that the
State may seize anything ‘
which is
concerned in or is on reasonable grounds believed to be concerned in
the commission or suspected commission of an offence
…’
or ‘
which may afford evidence of
the commission or suspected commission of an offence …
’.
Section 21 provides that any such articles may only be seized under a
search warrant but this is subject to sec 22 which
deals with the
circumstances in which an article may be seized without a search
warrant. These circumstances, however, do not include
situations
where the article in question has been lost, left or abandoned at a
crime scene and, furthermore, is unlikely
to be claimed by
someone.
[16]
The ECTA was introduced to provide inter
alia for the admissibility of evidence generated by computers since
its predecessor, the
Computer Evidence Act, 57 of 1983, was generally
considered to have failed to achieve its purpose in this regard and,
in any event,
had not regulated criminal proceedings. It provides for
wide definitions of data – ‘
electronic
representations of information in any form’ -
and
data message
s – ‘data
generated, sent, received or stored by electronic means and includes
– (a) voice, where the voice is
used in an automated
transaction; and (b) a stored record;’
.
An electronic communication is defined as meaning a communication by
means of data messages. One of the objects of the ECTA is
to ‘
promote
legal certainty and confidence in respect of electronic
communications and transactions’.
Although electronic data in the form of images such as photographs
and videos are not specifically referred to in either definition,
in
my view, on a purposive interpretation of the ECTA’s
provisions, they constitute a form of information.
[17]
The ECTA follows an inclusionary rather
than an exclusionary approach to the admission of electronic
communications as evidentiary
material. This appears from sec 11
which deals with the legal recognition of data messages. It provides
that information is not
without legal force and effect merely on the
grounds that it is wholly or partly in the form of a data message.
Clearly, the overall
scheme of the ECTA is to facilitate the
admissibility of data messaging as electronic evidence. Section 15 of
the ECTA deals with
the admissibility and evidential weight of data
messages in legal proceedings. It reads in part as follows:
‘
1.
In any legal proceedings, the rules of evidence must not be applied
so as to deny the admissibility of a data message, in evidence
–
a)
on the mere grounds that it is
constituted by a data message; or
b)
if it is the best evidence that the
person adducing it could reasonably be expected to obtain, on the
grounds that it is not in
its original form.
2.
Information in the form of a data message must be given due
evidential weight.
3.
In assessing the evidential weight of a data message, regard must be
had to –
a)
the reliability of the manner in
which the data message was generated, stored or communicated;
b)
the reliability of the manner in
which the integrity of the data message was maintained;
c)
the manner in which the originator
was identified; and
d)
any other relevant factor.’
[18]
I agree with the observation of Gautschi AJ
in
Ndlovu v Minister of Correctional
Services and another
[2006] 4 All SA
165
(W) at page 172 that sec 15(1)(a) does not render a data message
admissible without further ado. The provisions of sec 15 certainly
do
not exclude our common law of evidence. This being the case the
admissibility of an electronic communication will depend, to
no small
extent, on whether it is treated as an object (real evidence) or as a
document.
A
DOCUMENT OR REAL EVIDENCE
[19]
Section 221(5) of the CPA provides that a
document includes any device ‘
by
means of which information is recorded or stored’
.
In
Seccombe and others v
Attorney-General
1919 TPD 270
at page
277 it was noted that the word document ‘
is
a very wide term and includes everything that contains the written or
pictorial proof of something. It does not matter of what
material it
is made’
. As Professor J Hofman
stated, in an article, (
Electronic
Evidence in criminal cases
, in
2006 SACJ 257
at page 268), in motivating his contention that
graphics, audio and video that are in a data message form should be
treated in
the same way as documents, the view that such material
must be regarded as real evidence ‘
is
conceptually simple and appeals to those who dislike excluding any
evidence. But it does not take into account the way graphics,
audio
and video are, to an ever-increasing extent, recorded, stored and
distributed in digital form and fall under the definition
of a data
message. This means that graphics, audio, and video now resemble
documents more than the knife and bullet that are the
traditional
examples of real evidence. In data message form, graphics, audio and
video are susceptible to error and falsification
in the same way as
data messages that embody documentary content. They cannot prove
themselves to be anything other than data messages
and their
evidential value depends on witnesses who can both interpret them and
establish their relevance’
.
[20]
Given
the potential mutability and transient nature of images such as the
images in this matter which are generated, stored and
transmitted by
an electronic device I consider that they are more appropriately
dealt with as documentary evidence rather than
‘
real
evidence’
.
I associate myself, furthermore, with the approach followed in
S
v Ndiki
and
others
[2007] 2 All SA 185
(CK) where Van Zyl J expressed the view
[2]
that the first step in considering the admissibility of documentary
evidence is to examine the nature of the evidence in issue
in order
to determine what kind of evidence one was dealing with and what the
requirements for its admissibility are. In the present
matter the
evidence sought to be introduced by the State appears to be
photographs of the accused and its purpose in doing so is
to offer
proof, or render it more probable, that the phone,
Exhibit
1
,
on which they were found, belonged to the accused and must have been
dropped by him at the scene of the crime. Adopting this approach,
the
ordinary requirements of our law for the admissibility of such
evidence is that the document itself must be produced, which
document, ordinarily speaking, must be the original and the
authenticity of the document must be proved. These requirements are,
of course, qualified by those specific provisions of the ECTA having
a bearing on electronic communications.
[21]
Applying these requirements to the present
matter, the images in question were downloaded from the phone,
reproduced in hard copy
(paper) form and enlarged. There was no
suggestion that either the devices or the software which Linnen used
to produce or enlarge
the images was unreliable or that he
manipulated the data or electronic communication in any way.
[22]
As regards the images being in their
original form, sec 14 of the ECTA provides that a data message
satisfies the requirements of
original form if it meets the
conditions in that section. These are, in short, that the integrity
of the information from the time
when it was first generated in its
final form as a data message has passed assessment in terms of sec
14(2) and, secondly, that
information is capable of being displayed
or produced to the person to whom it is to be presented. The second
requirement is clearly
met. As regards the first requirement, sec
14(2) provides that integrity must be assessed:
‘
(a)
by considering whether the information has remained complete and
unaltered …
(b)
in the light of the purpose for which the information was generated;
and
(c)
having regard to all other relevant circumstances.’
[23]
In the present matter the undisputed
evidence is that the images could be traced back to a certain phone
or phones which transmitted
them to
Exhibit
1
, all of this taking place within
a minute or two on 7 March 2014. Linnen did not suggest that the
images had been tampered with
at any stage and no such proposition
was put to him. He testified, furthermore, that the software he used
precluded him from tampering
with the images. The evidence of the
phone being found at the crime scene and the fact that it was handed
to the police shortly
before midnight suggests that, accepting for
the time being Cronje’s evidence that it was dropped at the
crime scene, the
phone was in unknown hands for at most four hours
that night before being handed over to Major Muller. There is no
evidence or
even a suggestion that any person tampered with the phone
or, more accurately, the images stored thereon, during this period.
Furthermore,
what evidence there is indicates that the phone was in
the hands of lay persons in the four hour period and it is thus
improbable
that any tampering with the images in question took place.
Most significantly, Linnen’s evidence was that the data
downloaded
revealed that the images in question had been transmitted
to the phone two days before the shooting at a stage when, on the
available
evidence, the phone was in the hands of the original owner
or possessor.
[24]
In my view, on a conspectus of this
evidence, the requirements of original form and of sec 14 of the ECTA
have been met. In any
event sec 15(1)(b) of the ECTA gives data
messages a further exemption from the requirement of original form
‘
if it is the best evidence that
the person adducing it could reasonably be expected to obtain’
.
In the light of the lack of any evidence as to who originally
transmitted the images to the phone,
Exhibit
1
,
and the limited purposes for which the evidence was tendered, namely,
to prove that the phone belonged to the accused, I consider
that the
State could not reasonably be expected to have produced better
evidence of these images. Finally, as regards authenticity,
I
consider that, seen as a whole, Linnen’s evidence establishes
the authenticity of the images in question which, in any
event, was
not disputed by the accused, the apparent subject of the images.
[25]
I turn now to deal with the various other
objections to the admissibility of the images raised on behalf of the
accused. Firstly,
it was contended that the data message or images
amounted to hearsay.
Section 3(4)
of the
Law of Evidence Amendment
Act, 45 of 1988
defines hearsay evidence as evidence, whether oral or
in writing, the probative value of which depends upon the credibility
of
any person other than the person giving such evidence. The three
images which the State seeks to introduce as evidence are
photographs,
apparently of the accused, and, subject to proof of his
identity and bearing in mind the limited purpose for which they are
tendered,
their probative value stands or falls by that simple fact.
In this sense, at least, the images are more akin to being ‘
real
evidence’
but, however they are
classified, they do not constitute hearsay evidence.
[26]
As previously mentioned defence counsel
attacked the integrity of the chain from the time that the phone was
allegedly picked up
by Cronje to the time that it was handed to the
police. It is correct that there is a four hour window period during
which any
number of persons could have tampered with the phone. This
is, comparatively speaking, a short period of time and there was no
evidence that the phone or the images had been tampered with. To have
done so would have required no small degree of technical skill.
Furthermore, and most importantly, Linnen’s undisputed evidence
was that the images in question had been transmitted to the
phone on
7 March 2014 and thus any form of interference or tampering would
have to have involved the manipulation of pre-existing
images on the
phone, a much more unlikely scenario than the placing of such images
on the phone in the four hour window period.
Seen in the context of
the evidence as a whole I consider that the lack of proof of the
integrity of the phone for the four hour
period is insufficient to
justify the exclusion of the evidence.
[27]
Defence counsel argued further that the
images in question were downloaded without the authority of a
magistrate and for that reason
alone were unlawfully obtained. As I
have indicated, the provisions of the CPA relating to the obtaining
of a search warrant were
inapplicable in the present case. In my
view, moreover, the police were entitled to seize the phone in terms
of
sec 20
of the CPA when it was presented to them by the member of
the neighbourhood watch with the explanation that it was found on the
crime scene. To the extent that any further justification for seizing
the phone was necessary this was provided the following day
when a
statement was taken from Cronje identifying the phone as the one
which she picked up at the crime scene after it had been
dropped by
the gunman.
[28]
Nor was any particular authority necessary
from a judicial officer in order to download material from the phone
with a view to identifying
its owner or possessor. Clearly, that
information was reasonably necessary in order to trace a suspect.
Counsel could not direct
my attention to any statutory prohibition
against the downloading of material in circumstances such as these.
To the extent that
defence counsel relied on a right to privacy this
approach was misconceived. The accused consistently denied that the
phone was
his and in the circumstances it would be untenable for him
to deny, on the one hand, ownership, possession or a legal interest
in the phone or the disputed images stored on it and, on the other
hand, to assert a right to privacy over such images.
[29]
Ultimately, the question must be whether
the downloaded information was obtained in a manner that violated any
right in the Bill
of Rights and if so, whether it must be excluded
because its admission would render the accused’s trial unfair
or otherwise
be detrimental to the administration of justice. I can
see no room for any such conclusion. The phone was found at the crime
scene
and the identity of its owner or possessor was clearly critical
to establishing the identity of the gunman. No party asserted a
claim
to ownership or lawful possession of the phone or, given the
circumstances in which it was apparently found, was likely to
do so.
Downloading data from the phone for the limited purposes of
establishing the identity of its owner or possessor is hardly
objectionable. By analogy, if the gunman had dropped a diary at the
scene of the crime it could not credibly be suggested that
the police
would be precluded from opening and reading it with a view to
establishing the identity of its owner or possessor.
[30]
Finally, defence counsel contended that the
downloading of the material from the phone fell outside the
parameters of a subpoena
issued by a magistrate in terms of
sec 205
of the CPA in respect of the phone’s RICA details and call
records. This argument misconstrues both the purpose of the
sec 205
procedure and the role it played in the present matter.
Section 205
provides for a judicial officer, upon the request of the prosecuting
authorities, to require before him or her the presence of
any witness
who can give material information as to any alleged offence provided
that, if such person furnishes that information
to the satisfaction
of the prosecuting authority beforehand, he or she is excused from
appearing before the judicial officer. This
procedure, read with
other provisions of the CPA, is regularly used to obtain
documentation, including cell phone records kept
by the major service
providers, where such records are regarded as necessary for the
investigation of crime. It was pursuant to
these provisions that the
investigating officer obtained RICA details relating to the phone,
Exhibit 1
,
and call records limited to a two day period.
[31]
Where,
as in the present case, the phone was already lawfully in the
possession of the SAPS and it had the capacity to download
data from
it using its own software programme, the State was under no
obligation to seek such further information or data from
the service
provider, using the
sec 205
or any other procedure. As mentioned
counsel was not able to draw to my attention, nor am I aware of, any
provisions in our law
which would preclude the SAPS in a situation
such as the present from subjecting the phone to analysis and
downloading information
where that was objectively necessary for the
purposes of a criminal investigation
[3]
.
It may well be that, at some future time, statutory intervention may
be considered necessary or desirable in order to hold the
balance
between the privacy of private electronic communications or data and
the interests of justice. Such legislation might conceivably
provide
that before the contents of any electronic device are analysed by the
SAPS, the authority of a judicial officer will have
to be obtained.
That stage has, however, not yet been reached.
[32]
Finally, it was contended that the
admission of the disputed evidence violated the accused’s right
to a fair trial and would
be in breach of
sec 35(3)
or (5) of the
Bill of Rights. This contention was largely unsubstantiated, however,
and I have already alluded to the anomaly of
the accused denying
ownership or possession of the phone but seeking to exclude the
admission of images found on it which tend
to prove the very issue in
dispute, namely, ownership or possession of the phone at the relevant
time. As regards
sec 35(5)
I find, for the reasons already furnished,
that the evidence sought to be introduced was not obtained in a
manner that violates
any right in the Bill of Rights. Even if I am
incorrect in this conclusion I consider that the admission of the
evidence would
not render the accused’s trial unfair or
otherwise be detrimental to the administration of justice.
[33]
In conclusion it is worth noting that the
process envisaged by
sec 15(2)
of the ECTA i.e. assessing the
evidential weight of the electronic communication sought to be
introduced in evidence, and in so
doing utilising the criteria
furnished in
sec 15(3)
, is one which will only be addressed after all
the evidence has been heard.
[34]
It was for these reasons that at the
conclusion of the trial within a trial I made an order in the
following terms:
The
three images set out on pages 4 and 5 of
Exhibit
S
, namely, photos 126.jpg,
127.jpg and 128.jpg and their corresponding enlargements in
Exhibit
T
are held to be admissible
evidence, as images found on
Exhibit
1
on 26 March 2014.
Bozalek,
J
[1]
[1996] ZACC 25
;
1996
(2) SACR 113
(CC) at paragraph
[13]
[2]
At
paragraph [53]
[3]
Subsequent
to hearing argument I have had the opportunity of considering the
reasons furnished by Gamble J for a ruling in a similar
enquiry in
the matter of S v P Miller and 8 others
(SS13/2012
,
delivered on 2 September 2015). It appears that he was presented
with full argument to the
effect
that the provisions of ECTA precluded SAPS from downloading data
from seized mobile phones, at least without the authority
of a
‘cyber inspector’ appointed in terms of ECTA.
Gamble J ultimately rejected this argument and I find myself
in
agreement with his reasoning insofar as a similar argument could
have been raised in the present matter.