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[2015] ZAWCHC 118
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S v Miller and Others (SS13/2012) [2015] ZAWCHC 118; [2015] 4 All SA 503 (WCC); 2016 (1) SACR 251 (WCC) (2 September 2015)
Links to summary
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO: SS13/2012
DATE:
02 AUGUST 2015
REPORTABLE
In the matter
between:
The State
And
Philip Miller and
8 Others
Ruling
re Admissibility of Captain Lodewyk Brink’s Evidence
GAMBLE, J
INTRODUCTION
[1] The eight
accused are charged with a number of offences under the Prevention of
Organised Crime Act, 121 of 1998 (“POCA”)
, and the
Marine Living Resources Act,18 of 1998, the core of the State’s
case being that they collectively ran an enterprise
involving the
unlawful processing, packaging and export of abalone .
[2] The accused were
arrested over a period of 8 months in 2006 (February – October)
along with several others. In October
2008 their trial commenced in
this Division and at that stage there were some 18 accused before
Erasmus J. A number of procedural
objections were raised at the
commencement of the hearing, all of which were unsuccessful (See S v
Chao and others 2009(1) SACR
479 (C))
[3] Certain of the
accused then offered pleas of guilty in terms of section 112 of the
Criminal Procedure Act, 51 of 1977 (“the
CPA”) and were
duly convicted and sentenced. Thereafter the trials were separated
and the case continued in regard to the
remainder of the accused. The
matter was removed from the trial roll and sent back for pre-trial
management. During this period
certain of the accused skipped bail
leading to further delays in the matter. Finalisation of the
pre-trial procedures was also
delayed while the parties awaited the
outcome of the Constitutional Court decision in the case of Savoi and
others v National Director
of Public Prosecutions and others 2014(5)
SA 317 (CC). That judgment, delivered on 20 March 2014, dealt
extensively with the constitutionality
of POCA.
[4] Eventually, the
matter was sent to trial on 11 August 2014 before this court sitting
with assessors. At the commencement of
the trial one of the accused,
Stanley Dlamini, absconded and after a warrant for his arrest had
been issued, the trial continued
against the remaining eight accused.
[5] The trial has
run in fits and starts for a number of reasons. During the fourth
term of 2014 accused number one required neck
surgery and counsel for
accused number three, seven and eight, Mr Theunissen, was permitted
to withdraw due to apparent differences
with his clients. These
events led to the matter standing down. The matter ran fairly
regularly during the first term of 2015 and
on 16 March 2015 (the
38th day of the trial) the State called Capt Lodewyk Brink to the
witness box to testify regarding, inter
alia, his analysis of
cellular phone communications between the accused inter se as well as
with various of the State witnesses
and other parties.
[6] It seems that
the accused were taken by surprise by this turn of events since no
witness statement from Capt Brink was contained
in the police docket.
After expressing their frustration at the absence of such a statement
to work off counsel were assured that
they would be given ample
opportunity to digest the evidence and to take instructions thereon
before cross-examining. I should
mention that the prosecution too was
frustrated by this latest development: as lead counsel for the State,
Ms Greyling, later put
it “both the State and the defence were
required to play catch up.”
[7] The day before
the Easter recess commenced on 26 March 2015 Capt Brink had been in
the witness box for six days in examination-in-chief.
The court
ordered that the matter stand down for three weeks (a week longer
than the recess) and defence counsel were thereby offered
the
opportunity to prepare cross-examination. The evidence-in-chief of
Capt Brink then stood down to 20 April 2015 to enable him
to consider
further documentation and to prepare further documentary exhibits.
By agreement with the defence certain other witnesses
were interposed
while this took place.
[8] When the sitting
of the court in the second term recommenced on 20 April 2015 the
State completed the evidence-in-chief of Capt
Brink. He was then
fully cross-examined by counsel for accused number one, Ms Joubert.
[9] At the
commencement of the cross-examination for accused numbers 2, 4 and 5,
Mr Uijs SC reiterated his earlier frustrations
at being unable to
manage and understand the evidence and prepare cross-examination of
Capt Brink. Mr Uijs then cross examined
the witness for several hours
before the court adjourned at its usual time. At that stage the
witness was requested by several
counsel to conduct certain further
enquiries regarding the location of certain cell phone handsets in
relation to transmitter base
stations and to revert to the court with
his conclusions in tabular form. The witness stood down to this end
for a week.
[10] When the court
then resumed sitting we were informed that Capt Brink had not
finished his follow-up work and his evidence stood
down further for
another week, to 4 May 2015. In the interim further witnesses were
interposed.
[11] When the matter
recommenced on 4 May 2015 counsel for accused number six , Mr
Banderker, informed the court that his client
was suspected of having
suffered a minor heart attack and upon admission to hospital had been
diagnosed with TB. When this was
confirmed two days later, the matter
was postponed to 3 August 2015, the first day of the third term on
which criminal courts sat.
THE CHALLENGE TO THE
EVIDENCE
[12] A couple of
days before the court recommenced sitting on 3 August 2015 Mr Uijs
filed a notice of motion on behalf of each of
his clients in which it
was sought to strike out all of the evidence of Capt Brink relating
to cell phone traffic and usage. The
notice of motion was supported,
not by any affidavit, but by Mr Uijs’ detailed heads of
argument with annexures. At the start
of proceedings the State asked
for time to deal with the notice of motion and the matter stood down
yet again. In response to the
defence application the State filed a
notice of opposition as well as affidavits by the investigating
officer, Inspector Potgieter,
and Capt Brink. Eventually, on Monday,
24 August 2015 the notice of motion was argued in open court.
[13] The parties
agreed that the belated challenge to the admissibility of Capt
Brink’s evidence should be dealt with by way
of a
trial-within-a-trial. No viva voce evidence was led at the
trial-within-a-trial and it was agreed that all of the evidence
which
had been adduced in the trial so far would be imported into the
trial-within-a-trial. It was also agreed that the statements
filed by
the State in opposition to the notice of motion would stand as
written statements submitted under section 213 of the CPA.
[14] Ms Joubert
indicated to the court that accused number one did not support nor
oppose the application: he adopted a neutral
position thereto.
Counsel for the remaining accused all stated that their clients
supported the application to strike out the evidence.
[15] The challenge
to Capt Brink”s evidence was founded on two bases. Firstly, it
was alleged that certain cell phone records
procured by the State
under section 205 of the CPA had been obtained unlawfully since the
subpoenas presented to the issuing magistrate
in terms of section 205
were allegedly fatally defective. Secondly, it was said that the
accuseds’ rights to privacy protected
under section 14 of the
Constitution of the Republic of South Africa, 1996, had been
unlawfully invaded when Capt Brink had accessed
the data contained on
the accuseds’ various cell phones which had been lawfully
seized by the police during their arrests.
It was contended that this
conduct was unlawful because it breached certain statutory provisions
to which I shall refer later.
Counsel argued that in terms of section
35(5) of the Constitution the evidence therefore fell to be excluded.
The section reads
as follows –
“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 the
trial unfair or otherwise be detrimental to the administration of
justice.”
[16] To fully
understand the extent of the objection some further background detail
in respect of Capt Brink’s evidence is
required. After the
accused’s cell phones (as well as those of certain of the State
witnesses) had been lawfully seized Capt
Brink prepared subpoenas
(hereafter referred to as “the 205’s”) to be issued
by the by the magistrate, Cape Town
under section 205 of the CPA.
These subpoenas directed the responsible officials at Vodacom and
MTN, two of South Africa’s
cellular network service providers
(“SP’s”) to hand over to Capt Brink so-called
“itemised billing”
documents in respect of , inter alia,
a number of specified cell phone numbers, including numbers of most
of the accused and certain
of the State witnesses
[17] This
information, once supplied by the SP’s, was fed into a laptop
computer equipped with a software program called “Analyst
Notebook”. The latter is evidently a software tool that is used
to collate data and to provide a visual link where similarities
are
found. So, for example, when supplied with the requisite data from
the SP’s it will show when particular cell phone numbers
have
been in contact with each other. If one then establishes the identity
of the subscribers to these numbers , one can establish
who called
who, for how long they spoke, what handsets were used during the
conversations and where each handset was geographically
located
during the call. Identification of the subscriber to a particular
cellular number can be established through various channels.
Firstly
the subscriber can furnish the number personally. Secondly, the SP
can be asked to identify the subscriber, and thirdly,
one can access
a particular subscriber’s handset and establish from the
address book what name the subscriber has allocated
to a particular
number
[18] Having applied
“Analyst Notebook” Capt Brink produced several diagrams
which depicted cell phone traffic between
various numbers. These
diagrams, which were colloquially referred to as “spiders”,
were placed before the court in
documentary form. Such a spider would
generally depict the principal cell phone in the middle of the
diagram and the various other
numbers with which contact had been
made around the periphery of the diagram. By way of lines connecting
the number in the middle
with those around the periphery one can
establish the frequency of cell phone contact. It is important to
observe, at this stage,
that Analyst Notebook does not in any way
interfere with the data which it is required to analyse. As I
understand it, it is simply
an organisational tool which saves the
individual the arduous task of doing the exercise manually.
[19] The objection
of the defence, then, is that the primary data which is loaded onto
the police computer was unlawfully obtained
in breach of section 205.
In addition, it is said that Capt Brink breached the accused’s
rights of privacy by interpreting
the data furnished to him, and in
particular that he should not have had access to any data on any cell
phone lawfully seized by
the police without prior authorisation. I
turn then to the 205 issue.
SECTION 205
[20] The relevant
provisions of section 205 read as follows –
“(1) A judge
of a High Court, a regional court magistrate or a magistrate may,
subject to the provisions of subsection (4)
and section 15 of the
Regulation of Interception of Communications and Provision of
Communication-related Information Act, 2002,
upon the request of a
Director of Public Prosecutions or a public prosecutor authorised
thereto in writing by the Director of Public
Prosecutions, require
the attendance before him or her or any other judge, regional court
magistrate or magistrate, for examination
by the Director of Public
Prosecutions or the public prosecutor authorised thereto in writing
by the Director of Public Prosecutions,
of any person who is likely
to give material or relevant information as to any alleged offence,
whether or not it is known by whom
the offence was committed:
Provided that if such person furnishes that information to the
satisfaction of the Director of Public
Prosecutions or public
prosecutor concerned prior to the date on which he or she is required
to appear before a judge, regional
court magistrate or magistrate, he
or she shall be under no further obligation to appear before a judge,
regional court magistrate
or magistrate.”
[21] Section 205 was
extensively used in the pre-constitutional era for the examination of
persons (often members of the media)
to obtain information regarding
the sources of their reports , or generally to glean information
about the commission of an offence.
The leading cases dealing with
section 205 from that era emanate from this Division and include
Haysom v Additional Magistrate,
Cape Town and another 1979(3) SA 155
(C) and S v Matisonn 1981(3) SA 302 (A). In the democratic era the
Constitutional Court has
confirmed that the section is constitutional
(See Nel v Le Roux NO and others 1996(3) SA 562 (CC). In deciding the
case that Court,
fully conscious of the invasions of the various
protected rights in the Bill of Rights which the section caused,
found that, if
properly applied, section 205 was an important
evidence gathering mechanism in the preparation of criminal
prosecutions.
[22] In Haysom the
court held that, once the subpoena had been authorised it could be
assumed, in the absence of evidence to the
contrary, that the
magistrate authorising issue had done so after the exercise of a
proper judgment. In the present matter the
magistrate had before him
the documents placed before this court in terms of section 213. Once
he was satisfied, upon perusal of
those documents, that the person
subpoenaed was likely to give the material evidence referred to in
the subpoena, the magistrate
was under a duty to authorise the
subpoena. In the event that the person so subpoenaed wished to attack
the validity of the subpoena
it would be up to that person to produce
countervailing evidence to persuade the magistrate that the subpoena
was not validly authorised.
I do not understand Matisonn to have
overruled these principles.
[23] Counsel for the
defence relied heavily on one of the judgements of Bozalek J in S v
de Vries and others in this Division in
regard to a ruling on a 205
subpoena. The judgment is reported at 2009(1) SACR 613 (C). In that
matter the court set aside a 205
subpoena after hearing oral evidence
from the magistrate. That evidence unequivocally established that the
magistrate had not applied
his mind properly to the application for
the subpoena but seems rather to have granted it because he held the
petitioning prosecutor
in high regard. I agree with the approach of
the learned judge, based as it is on the judgments in Haysom,
Matisonn and Nel that
the function of the magistrate is not merely
that of a “rubberstamp”, and that the subpoena must be
drawn in such a
fashion that it is “as narrowly tailored as
possible to meet the legitimate State interest of investigating and
prosecuting
crime.”
[24] In this matter
the magistrate had before him the affidavits furnished by the police
in which the alleged offences are described
in significant detail. In
addition, the magistrate had before him the affidavit of a potential
accomplice witness (Salvin Africa).
The argument for the defence is
premised on the wording of the completed subpoena. It is said that
the “finished product”
suggests that the magistrate
failed to apply his mind properly to the document before him. That
submission is based on a number
of factors. Firstly it was said that
the description of the alleged offences in respect whereof material
was sought was not accurate.
Counsel accepted that the detail
furnished was comprehensible and that this factor on its own was not
sufficient to render the
subpoena invalid. Then it was said that the
language of the subpoena (which was to be served on a female) was
inappropriate in
that it vacillated between the masculine and
feminine. The document contains the word “responsible person”
as the person
sought to be subpoenaed. However, the person’s
name is thereafter spelt out in full in brackets.
[25] But the thrust
of Mr Uijs’ attack on the subpoena relates to the date upon
which the person subpoenaed may appear before
the magistrate if the
subpoena is to be attacked or resisted. That date is given as 31
November 2006 - a non-existent date on our
calendar. It was said that
this was the clearest indication that the magistrate had not applied
his mind to the subpoena. In my
view the error is an understandable
one. Common experience in the preparation of court documents and
judgments, remind one how
easy it is to overlook a typographical
error, notwithstanding that the document has repeatedly been perused
or edited. Indeed Mr
Uys candidly conceded when the application was
initially brought that he himself had overlooked the mistake in the
subpoena several
times before he picked it up.
[26] In considering
whether a non-existent date should necessarily render the subpoena
invalid, one must have regard to the purpose
of such date. The 205
does not require the person subpoenaed to appear on a particular date
without more. If the person is willing
to provide the documentation
sought to the police that is the end of the matter and the date
becomes irrelevant. It is only if
the person wishes to oppose the
subpoena that the date becomes relevant. Then the person may appear,
legally represented if she
so wishes, and attempt to persuade the
magistrate why she should not be ordered to hand over what was
sought. And, were that to
happen, common sense tells one that a
responsible person would approach the magistrate on either 30
November or 1 December and
ask for an opportunity to be heard. An
incorrect date would not in my view permit the person subpoenaed to
simply ignore the request
contained therein.
[27] Mr Uijs asked
the court to have regard to the cumulative effect of these
shortcomings in the subpoena and to conclude beyond
reasonable doubt
that the subpoena was invalid. In my considered view this is not the
only reasonable inference to be drawn in
the circumstances and I am
not satisfied that the defence has established that the magistrate
failed to properly consider the documents
or to exercise his
discretion properly. The objection must be determined on the evidence
before the court and what that evidence
shows is that a number of
documents detailing the alleged offences were placed before the
magistrate. Those documents were placed
before this court by
agreement in terms of section 213 and the court is entitled to accept
the contents thereof accordingly. Neither
the State nor the defence
sought to rely on the provisions of section 213(4) to enable the
magistrate in question to be cross-examined
in regard to the
subpoena. Accordingly, there is no direct evidence before this court
that the magistrate failed to apply his mind
to the document placed
before him by the public prosecutor and to that extent this case is
entirely distinguishable from de Vries.
[28] In his argument
in reply Mr Uijs raised one further point. He observed that the
information contained in the documentation
specified in the
subpoenas, in some instances, went beyond the detail of the subpoena.
So, for example, the SP’s provided
the so-called IMEI number
which is the unique identification number of every cell phone, much
like an individual’s identity
number. Mr Uijs pointed out that
this number was not requested in the majority of the subpoenas issued
and that the SP’s
had provided the information of their own
volition. Ms Greyling pointed out that the SP’s had collated
the information sought
in tabular form printed on ordinary A4 pages.
This she observed was the customary way in which itemised billing was
presented to
the police and the way in which it was normally placed
before the court. In that regard Ms Greyling is clearly correct -
this court
has customarily encountered the documents in that form.
[29] To the extent
that information not specifically sought in the 205 has been placed
before the court it is arguable that such
information falls outside
the ambit of the subpoena and may therefore be unlawfully before the
court. In such circumstances Ms
Greyling requested the court to
receive the evidence under the exception contained in section 35 (5)
of the Constitution. I am
prepared to assume, without deciding, that
the information referred to has found its way into the court record
unlawfully. I am
unable to say at this stage that the admission of
this evidence has, or will, render the trial unfair. I am however
persuaded that
it would be detrimental to the administration of
justice to exclude such evidence from the record. In the first place,
a case such
as this should be decided on all the available evidence.
Furthermore, there is no particular secret in an IMEI number. Counsel
were agreed that many cell phones contained that number on the back
of the handset’s casing. It can also be obtained from
the cell
phone itself by pressing in a code which is widely known.
[30] Having regard
to the foregoing I am not persuaded that the defence has established
that the subpoena was wrongly issued or
that it falls to be declared
invalid. The first attack by the defence on the admissibility of Capt
Brink’s evidence, that
the subpoenas were unlawfully issued,
must therefore fail.
THE COMMUNICATIONS
RELATED STATUTES – ECTA & RICA
[31] For the second
leg of the defence argument , Mr Uijs referred the court to 2
statutes – the Electronic Communications
and Transactions Act
25 of 2002 (“ECTA”) , which came into operation on 30
August 2002 , and the Regulation of Interception
of Communications
and Provision of Communication-related Information Act 70 of 2002
(“RICA”) , which came into operation
on 30 September
2005. I shall commence with the latter.
[32] Section 12 of
RICA provides as follows –
“12
Prohibition of provision of real-time or archived
communication-related information
Subject to this Act,
no telecommunications service provider or employee of a
telecommunication service provider may intentionally
provide or
attempt to provide any real-time or archived communication-related
information to any person other than the customer
of the
telecommunication service provider concerned to whom such real-time
or archived communication-related information relates.”
[33] It will be
observed that section 205(1) which has been set out above contains a
cross-reference to section 15 of RICA. The
latter section reads as
follows –
“15
Availability of other procedures for obtaining real-time or
archived communication-related information
Subject to
subsection (2), the availability of the procedures in respect of the
provision of real-time or archived communication-related
information
provided for in sections 17 and 19 does not preclude obtaining such
information in respect of any person in accordance
with a procedure
prescribed in any other Act.
Any real-time or
archived communication-related information which is obtained in terms
of such other Act may not be obtained on
an on going basis.”
[34] Counsel were
in agreement that the prohibition contained in section 12 of RICA was
ameliorated by section 15 thereof. In other
words if the police wish
to obtain cell phone records from MTN or Vodacom they may do so
provided they make use of a 205, and provided
further that a separate
subpoena is issued in respect of each individual request. In light of
my finding regarding the validity
of the 205’s, and subject to
the aforementioned qualification under section 35(5) of the
Constitution, there can be no debate
about the lawful possession by
the police of such records in this case. The crux of the objection
raised by Mr Uijs on behalf of
the defence was what could be done
with such records once they had been handed over by the SP’s. I
shall revert to this question
later once I have dealt with the
seizure of cell phone handsets and other items by the police.
SEARCH AND SEIZURE
[35] During the
various arrests which gave rise to the initial prosecution, and later
this prosecution, the police seized a number
of cell phones from
persons present on the respective scenes. They also seized on
occasion unused SIM cards for cell phones contained
in what were
referred to as “starter packs”, and the remainders of
used starter packs from which details of SIM cards
and cell phone
numbers could be established. Some of these arrested persons were
subsequently prosecuted, some became State witnesses
in terms of sec
204 of the CPA (“204’s”) and others were left to
continue life as before.
[36] In conducting
the various raids the police acted generally in terms of Sec 20 of
the CPA which is to the following effect –
“20. State may
seize certain articles
The State may, in
accordance with the provisions of this Chapter, seize anything (in
this Chapter referred to as an article) –
(a) which is
concerned in or is on reasonable grounds believed to be concerned in
the commission or suspected commission of an offence,
whether within
the Republic or elsewhere;
(b) which may afford
evidence of the commission or suspected commission of an offence,
whether within the Republic elsewhere; or
(c) which is
intended to be used or is on reasonable grounds believed to be
intended to be used in the commission of an offence.”
[37] Sec 20 sets out
the general powers of the State to seize articles in order to obtain
evidence for the institution of a prosecution
or the consideration of
instituting such a prosecution. Those general powers are exercised
under the specific powers granted under
sections 21, 22, 23 and 24 of
the CPA which empower the seizure of articles in terms of a search
warrant, without a search warrant,
from an arrested person and during
the search of premises respectively. As I have said it is common
cause between the defence and
the State that the police obtained
possession of the cell phones, SIM cards and starter packs lawfully
and it is not necessary
to consider the provisions of sections 21 to
24 further.
[38] Ms Greyling
argued that the general power conferred under section 20 to seize
“anything” entitled the police to
have access to the
contents of any such article seized without further ado. So, for
example, she submitted that if a diary or photo
album had been seized
, the police could page through them and if a locked safe had been
seized the police could call in a locksmith
to open it in order that
they could see what was inside. I did not understand Mr Uijs to take
issue with this approach. He accepted
that this was the sensible
interpretation to be placed on the search and seizure provisions of
the CPA. However, he argued, that
the specific provisions of ECTA
required the police to take further steps in regard to cell phones
given the fact that they are
in essence these days mini computers,
containing as they do facilities such as word processing software
with which to send emails,
search programs using search-engines and
generally storing information, music and photographs. It is therefore
necessary to have
regard to the relevant provisions of ECTA upon
which Mr Uijs relies.
[39] The genesis of
the argument is to be found in section 86 of ECTA. It is contained in
the penultimate chapter of the Act (Chapter
XIII) which bears the
heading
“CYBER CRIME”.
That chapter has its own definition provision contained in section 85
which reads as follows –
“85 Definition
In this Chapter,
unless the context indicates otherwise –
“access”
includes the action of a person who, after taking note of any data,
becomes aware of the fact that he or she
is not authorised to access
that data and still continues to access that data.”
[40] Then follows
section 86(1) which is to the following effect –
“86
Unauthorised access to, interception of or interference with data
(1) Subject to the
Interception and Monitoring Prohibition Act, 1992 (Act 127 of 1992),
a person who intentionally accesses or intercepts
any data without
authority or permission to do so, is guilty of an offence.”
[41] Mr Uijs argued
that the “authority” contemplated under section 86(1)
rested solely with the “cyber inspector”
contemplated for
appointment in section 80 of ECTA. The immediate problem with that
approach is that notwithstanding the operation
of ECTA for some 13
years no cyber inspector has yet been appointed. The anomaly which
then arises, so it is argued, is that the
police may simply not
access any data on a lawfully seized cell phone. If one poses the
question why the police would wish to seize
a cell phone from a
suspect, if not to access the names and addresses stored thereon , or
to view the in-coming or out-going call
logs , counsel’s
submission has far-reaching consequences for the police in the
investigation of crime. It is therefore
necessary to analyse ECTA to
establish whether counsel’s interpretation is in fact what the
Legislature intended.
THE APPROACH TO
STATUTORY INTERPRETATION
[42] The so-called
“golden rule” of statutory interpretation has
traditionally been to ascertain the intention of the
legislature,
primarily by giving the words of the provision under consideration
their ordinary grammatical meaning.(Manyashe v
Minister of Law and
Order 1999(2) SA 179 (SCA) at 185 B-C) However as Van Heerden JA
points out , with reference to all the leading
appellate cases , in
Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman
Primary School 2008(5) SA 1 (SCA) at para’s
17 – 20 , the
contemporary approach is to promote a “purposive construction”
of a statutory provision. Accordingly,
where the words of a statute
are not linguistically limited to a single ordinary grammatical
meaning, one must have regard to the
context in which these words are
used in the Act in question, seen against the background of the
purpose of the legislation. (See
also LAWSA Vol 25 Part 1 2nd ed at
p290 et seq). Moreover, sec 39(2) of the Constitution enjoins a court
to promote the spirit,
purport and objects of the Bill of Rights in
interpreting any legislation.
[43] In my view, it
is impermissible to peer at section 86 through blinkers as the
defence sought to do. The entire Act must be
examined contextually ,
and the interrelationship of the parts making up the whole must be
considered.
[44] A purposive
approach requires the court to consider the primary purpose of ECTA.
That purpose is established by first having
regard to the long title
of ECTA which reads as follows –
“To provide
for the facilitation and regulation of electronic communications and
transactions; to provide for the development
of a national e-strategy
for the Republic; to promote universal access to electronic
communications and transactions and the use
of electronic
transactions by SMMEs; to provide for human resource development in
electronic transactions; to prevent abuse of
information systems; to
encourage the use of e-government services; and to provide for
matters connected therewith.”
[45] One then turns
to the definitions section where the word “data” is
defined as “electronic representations
of information in any
form”. I am prepared to accept , as suggested Mr Uijs that,
broadly speaking, this definition could
include the information
stored on a cell phone’s list of contacts, any notes saved
thereon or photographs taken with a cell
phone and stored in its
memory bank.
[46] The next
section of relevance is section 2 of ECTA which details the objects
of the Act. There are some eighteen of them set
forth as follows –
“2 Objects of
Act
The objects of this
Act are to enable and facilitate electronic communications and
transactions in the public interest, and for
that purpose to-
(a) recognise the
importance of the information economy for the economic and social
prosperity of the Republic;
(b) promote
universal access primarily in underserviced areas;
(c) promote the
understanding and, acceptance of and growth in the number of
electronic transactions in the Republic;
(d) remove and
prevent barriers to electronic communications and transactions in the
Republic;
(e) promote legal
certainty and confidence in respect of electronic communications and
transactions;
(f) promote
technology neutrality in the application of legislation to electronic
communications and transactions;
(g) promote
e-government services and electronic communications and transactions
with public and private bodies, institutions and
citizens;
(h) ensure that
electronic transactions in the Republic, conform to the highest
international standards;
(i) encourage
investment and innovation in respect of electronic transactions in
the Republic;
(j) develop a safe,
secure and effective environment for the consumer, business and the
government to conduct and use electronic
transactions;
(k) promote the
development of electronic transactions services which are responsive
to the needs of users and consumers;
(l) ensure that, in
relation to the provision of electronic transactions services, the
special needs of particular communities and,
areas and the disabled
are duly taken into account;
(m) ensure the
compliance with accepted international technical standards in the
provision and development of electronic communications
and
transactions;
(n) promote the
stability of electronic transactions in the Republic;
(o) promote the
development of human resources in the electronic transactions
environment;
(p) promote SMMEs
within the electronic transactions environment;
(q) ensure the
efficient use and management of the .za domain name space; and
(r) ensure the
national interest of the Republic is not compromised through the use
of electronic communications.’
[47] Section 3 of
the Act is a particularly important provision since it deals
expressly with interpretation –
“This Act must
not be interpreted so as to exclude any statutory law or the common
law from being applied to, recognising
or accommodating electronic
transactions, data messages or any other matter provided for in this
Act.”
[48] Chapter VIII of
ECTA deals with the protection of “personal information”.
The latter phrase is extensively defined
in the definitions clause
(which I shall not recite to avoid prolixity) but that definition
does not expressly include names, addresses
and cell phone numbers of
other persons. In addition the protection of personal information
afforded by this Chapter only applies
to such personal information as
has been obtained through an electronic transaction.
[49] Ms Greyling
drew the court’s attention to section 15 of ECTA which deals
with the admissibility and evidential weight
of data messages. The
following provisions are of relevance here –
“15(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;”
[50] Finally, I must
deal with the argument presented by Mr Uijs in regard to section
81(2) of the Act. Under the general heading
“81 Powers of cyber
inspectors” there is the following –
“(2) Any
statutory body , including the South African Police Services, with
power of inspection or search and seizure in terms
of any law may
apply for assistance from a cyber inspector to assist it in an
investigation: Provided that –
(a) the requesting
body must apply to the Department [of Communications] for assistance
in the prescribed manner; and
(b) the Department
may authorise such assistance on certain conditions.”
[51] Mr Uijs
submitted that this section supported the argument that the police
could only access cell phone data upon the authority
of the
non-existent cyber inspector after following the necessary procedure
prescribed by the Department of Communications. I do
not agree.
Section 81(2) contains the important word ‘may’ which is
indicative of a permissive power to ask for assistance
(with the
correlative power of the Department to offer assistance
conditionally), rather than a peremptory directive that that
the
police “shall” apply for such assistance in all instances
where they wish to access cell phone data. In any event,
given the
importance of speedy investigatory steps in the fight against crime
it seems counter-productive to require the police
to follow a
bureaucratic procedure to access digital information, a procedure
which would not be required in respect of non-digital
evidential
material.
[52] Having regard
then to the Act in its entirety, and in particular the sections to
which I have referred above, I am driven to
conclude that the main
purpose of ECTA is to regulate electronic commercial transactions and
communications related thereto. In
this regard the State referred the
court to a journal article written by Associate Professor Julien
Hofman of the University of
Cape Town in
2006 SACJ 257.
The author
explains the background to ECTA , pointing out that it is based on
the United Nations Commission on International Trade
Law Model Law on
Electronic Commerce (the so-called “Model Law”).
“The Model Law
was drafted to promote electronic commerce by providing an electronic
equivalent for written, signed and original
documents. It does this
by adopting what it calls a functional equivalent approach.
Functional equivalence recognises the differences
between written and
electronic communication. Rather than using a legal fiction to create
an artificial identity between the two,
the functional equivalent
approach regulates electronic documents so they can perform the same
commercial functions as non-electronic
documents.
…..(The)
functional equivalence of data messages as evidence is clearly
necessary to make the functional equivalence of data
messages as
documents effective. This will ensure a “media-neutral
environment” for anyone relying on electronic evidence.
It will
neither discriminate against those transacting electronically nor
give them an unfair advantage. This approach not only
respects
international law and encourages electronic commerce. It also does
away with the incentive to engage in “format
shopping”.
It is most
instructive in my view to note the author’s repeated references
to “electronic commerce”.
[53] Prof Hofman
deals extensively in this article with the import of section 15 of
ECTA in relation to the admissibility of data
messages in civil and
criminal proceedings and, in particular, to problems occasioned by
the rule against the admission of hearsay.
It is not necessary for
the purposes of this ruling to go into any detail of the discussion
on that score other than to say that
the basis for the discussion is
the relevance of such evidence in documents dealing with electronic
commerce. However, there is
some interesting discussion in relation
to search warrants.
“Data messages
not transmitted but stored on a computer will not fall under the
interception directions in RICA. Anyone who
needs such information as
part of a criminal investigation will have to apply for a search
warrant in terms of chapter 2 of the
Criminal Procedure Act or
other
legislation that provides for search warrants.
Section 20(b)
of the
Criminal Procedure Act allows
the State to seize ‘anything (in
this Chapter referred to as an article) that may afford evidence of
the commission or suspected
commission of an offence whether within
the Republic or elsewhere”. “Anything” has been
held to extend to documents
and money and will certainly extend to a
computer or hard drive in which messages are stored”
The last sentence in
this extract from the article seems to suggest that there is
authority (“has been held”) for the
submission. However
in footnote 82, which is the basis for the submission, the author
points out that “there have been high
profile cases where
search warrants have been used to seize computers and the data on
computers but none seem to have found their
way into the law
reports”.
[54] The 2004
judgment of Thring J in this Division, which traversed this point in
part, was only reported in 2007 and would not
have been readily
available to the author in 2006 (See Beheersmaatskappy Helling I NV
and Others v Magistrate , Cape Town and Others
2007(1) SACR 99 (C)).
That matter involved a request by a foreign government for the
seizure of electronic information stored in
computers in Cape Town
for purposes of litigation in the Netherlands. The police had removed
a number of computers at the premises
of the applicant company in
Mowbray and its employees in Clovelly and Table View. The computers
were subjected to what was called
an “off-site search”
and data stored thereon was copied for onward transmission to the
Netherlands. The searches had
been conducted under warrants issued by
magistrates in terms of
sections 20
and
21
of the CPA read in
conjunction with the provisions of the International Co-operation in
Criminal Matters Act 75 of 1996. The applicants
applied to set aside
the warrants on the basis that the police had exceeded the powers
given to them in terms of the warrants.
In upholding the application
Thring J found that it was unnecessary to remove the computer central
processing units from the office
premises in Mowbray to copy them and
that in so doing the police had unnecessarily disrupted the business
of the applicant. It
was held that an off-site search was not
necessary and that the relevant data could have been retrieved by the
police at the applicant’s
premises. The warrants were therefore
set aside on that basis , but it is important to note that neither
the applicant nor the
court were in any way concerned with the fact
that data was ultimately downloaded off the computers.
[55] While the case
is not entirely in point, I consider it useful authority for the
principal submission made by Ms Greyling –
that the reason that
a cell phone is seized in a case such as this is to enable the police
to access and examine its contents,
be they phone numbers and
addresses, SMS messages, emails or photographs. Possession of the
instrument per se would be of no assistance
to an organised crime
investigation such as was undertaken here. Similarly in
Beheermaatschappij Helling , the court did not question
the
lawfulness of the accessing and downloading of data on the computers
as such but rather the manner in which it was done.
CONCLUSIONS
REGARDING THE APPLICATION OF ECTA
[56] Reverting to
the provisions of ECTA, I am not persuaded that it was the intention
of the Legislature when passing that Act
to criminalise or proscribe
the accessing of cell phone data by the police in circumstances where
the instrument had been lawfully
taken into possession during the
course of a criminal investigation. I say so for the following
reasons.
• Firstly, the
provisions of section 86 relied on by Mr Uijs are contained in a
chapter of ECTA called “Cyber Crime”.
The section when
read in context is aimed at criminalising the interference (in a
number of defined ways) with data on computers
that have been used
either in the course of electronic commerce or specifically for
computer-based crime, such as fraud, forgery
or extortion, to which
reference is made in section 87. The recent press reports of a
sophisticated mobile electronic bugging and
interception device
dubbed “The Grabber” which is used to gain access to bank
accounts , cell phone messages and the
like, and which was evidently
seized by the police, would fit the ordinary description of the term
“cyber crime”’.
I should mention,
too, that the Government has very recently published for comment by
30 November 2015 the Cybercrimes and Cybersecurity
Bill. This is a
very comprehensive piece of draft legislation running to some 68
sections which details the nature and extent of
what is considered to
be cybercrime, associated criminal contraventions and penal
sanctions. If passed in its present form it will
repeal and replace,
inter alia, sections 85 – 90 of ECTA. While it is still early
days in the preparation and passage of
this Bill , it must be said
that in its present guise it is certainly arguable that the Bill
would not seek to penalise the police
conduct complained of in this
matter.
• Secondly,
there is the proviso in section 3 (the interpretation clause) of ECTA
which specifically preserves the statutory
and common law powers of
search and seizure available to the police. If the purpose of the
seizure of a cell phone is to access
the data stored on it, and the
police have complied with the search and seizure provisions of the
CPA, they are, in my view, entitled
to do the obvious thing that any
police officer in possession of a seized object would do –
examine it for purposes of establishing
its potential use in an
offence and the subsequent criminal prosecution of such offence. The
situation is no different to the seizure
of a bloodied knife being
sent for finger print and DNA analysis, a photo album being viewed
for identification of potential suspects
depicted therein, or a
telephone/address book being studied to view the handwritten entries
therein. The preservation of the existing
search and seizure powers
in favour of the police contemplated in this section clearly remove
conduct in accordance with such powers
from the ambit of cybercrime
contemplated by ECTA.
• Thirdly, and
in any event, there is the very wording of section 86(1) which
criminalises the accessing or interception of
data, only in
circumstances where this occurs “without authority”. (The
subsection is to be read in conjunction with
the definition of
“access” in section 85 which covers the innocent
accessing of data and the continued use once thereof
the accessor has
gained knowledge of the fact that access was prohibited.) The section
in question does not seek to criminalise
a person accessing data
under “authority”. Given the provisions of section 3 to
which I have just referred , such authority
would of necessity
include a search sanctioned by section 20 of the CPA , and not be
limited to the powers of search and seizure
available under section
82 of ECTA to a non-existent cyber inspector.
• Fourthly, and
in any event, there is the further provision in section 86(1) of ECTA
which, in my view, legitimises access
to data pursuant to the
granting of ‘permission’ to the police to access such
data in a cell phone as they may require.
• Fifthly, and
in any event, there are the provisions of section 84 of ECTA which
permit any person who has obtained access
to information under
Chapter XII of ECTA (which is titled “Cyber Inspectors”)
to disclose such information to another
for purposes of the
prosecution of an offence.
PERMISSION GRANTED
BY ACCUSED 2 & 4
[57] I referred
above to the furnishing of permission to a person to access data. The
facts of the present case are that accused
number two, Mr van
Rensburg , was aware of the fact that the police were intent on
arresting him. Accordingly, he surrendered himself
to the police at a
police station in the presence of his attorney. He willingly handed
over to the arresting officer his cell phone
which he had taken along
with him. Given what I have said above in regard to the purpose of
the seizure of a cell phone in a matter
such as this , there could
have been no doubt in the mind of Mr van Rensburg why the police
wanted his phone. Capt Brink recorded
that this cell phone had no PIN
(“Personal Identification Number”) thereby removing any
restriction on the police obtaining
access to the instrument. In such
circumstances , by handing over a phone sans PIN without protest or
objection, I am satisfied
that on the evidence now before the court,
accused number 2 tacitly gave “permission” as
contemplated by section 86(1)
of ECTA for the police to access the
data.
[58] A similar
situation applies to accused number 4, Mr du Toit. He was arrested at
his house in Bellville by the police after
a raid at a house in
Durbanville. During the arrest (the legality whereof is not in issue)
Mr du Toit handed 2 cell phones to the
arresting officer – one
in working condition and the other broken. In respect of the working
phone Capt Brink’s documents
contained in Exhibit 3 (and in
particular Exh 3.49) indicate that the phone’s PIN number was
furnished to the police by Mr
du Toit. Given that the PIN number has
to be entered into the phone to afford access to the data thereon , I
consider that on the
evidence now before court Mr du Toit also
furnished the necessary permission contemplated by section 86(1).
“ FORBIDDEN
FRUIT “
[59] Mr Uijs drew
the court’s attention to a recent decision of the United States
Supreme Court which dealt with the seizure
of cell phones and the
subsequent accessing of data thereon by the law enforcement
authorities. (See Riley v California 573 US
(2014). This case was,
very properly, drawn to the defence’s attention by the State.
Mr Uijs reminded the court of section
39(1)(c) of the Constitution
which enjoins a court to have regard to foreign jurisprudence where
appropriate, and urged the court
to apply the majority decision of
that court which excluded the data so accessed. Mr Uijs was unable to
assist the court with the
applicable rules of evidence which obtained
in California where this matter originated. However, he asked the
court to consider
that it was now required to apply the doctrine
commonly referred to as the “fruits of the poisoned tree”
and exclude
the evidence on that basis. The doctrine is to the effect
that once the procurement of evidence is in any way tainted by
illegality
, such evidence must be excluded without more.
[60] In de Vries at
para 28, Bozalek J was similarly urged to apply the doctrine. His
Lordship refused to do so pointing out that
the doctrine does not
form part of our law. (See S v Melani and others
1996 (1) SACR 335
(E), S v Marx and another
1996 (2) SACR 140
(W) and S v Malefo en
andere 1998(1) SACR 127 (W)). Indeed in Malefo , after a detailed
consideration of both local and foreign
authorities, the court
observed that not only was the doctrine a rigid exclusionary rule
that was at odds with our law (and in
particular the provisions of
section 35(5) of the Constitution), but that it had been roundly
criticised in America whence it came.
In the circumstances I decline
to follow the majority opinion in Riley .
[61] That having
been said , Ms Greyling drew the Court’s attention to the
minority concurring opinion of Justice Alito in
Riley in which he
bemoaned the natural consequences of the majority opinion, while
noting the following anomaly which is the hallmark
of the “’poisoned
fruit ‘ doctrine .
“I agree that
we should not mechanically apply the rule used in the pre-digital era
to the search of a cell phone. Many cell
phones now in use are
capable of storing and accessing a quantity of information, some
highly personal, that no person would ever
have had on his person in
hard-copy form. This calls for a new balancing of law enforcement and
privacy interests.
The Court strikes
this balance in favour of privacy interests with respect to all cell
phones and all information found in them,
and this approach leads to
anomalies. For example, the Court’s broad holding favours
information in digital form over information
in hard-copy form.
Suppose that two suspects are arrested. Suspect number one has in his
pocket a monthly bill for his land-line
phone, and the bill lists an
incriminating call to a long-distance number. He also has in his
wallet a few snapshots, and one of
these is incriminating. Suspect
number two has in his pocket a cell phone, the call log of which
shows a call to the same incriminating
number. In addition, a number
of photos are stored in the memory of the cell phone, and one of
these is incriminating. Under established
law, the police may seize
and examine the phone bill and the snapshots in the wallet without
obtaining a warrant, but under the
Court’s holding today, the
information stored in the cell phone is out.
While the Court’s
approach leads to anomalies, I do not see a workable alternative. Law
enforcement officers need clear rules
regarding searches incident to
arrest, and it would take many cases and many years for the courts to
develop more nuanced rules.
And during that time, the nature of the
electronic devices that ordinary Americans carry on their persons
would continue to change.
“
[62] Fortunately our
law is not hit by these sorts of anomalies because of the provisions
of section 35(5) of the Constitution.
Through the considered
application of that section, our courts are indeed able to address
the issue of privacy which is invaded
through access to data on
seized cell phones, and the investigation of crime which is so
necessary in a country like ours with
its notoriously high crime rate
and disregard for the rights of others, by attempting to achieve some
sort of balance.
APPLICATION OF
SECTION 35(5) OF THE CONSTITUTION
[63] And so I turn
to the last aspect which falls to be considered in the defence’s
objection to Capt Brink’s evidence,
the applicability of
section 35(5) of the Constitution. The section applies at 2 levels in
this case. Firstly, in the event that
the evidence was seized
unlawfully in violation of a right protected under the Bill of
Rights, and secondly, even if it was seized
lawfully, the section
applies because the accessing of stored data on a cell phone is prima
facie an invasion of the right to privacy
protected under section 14
of the Bill of Rights contained in Chapter 2 of the Constitution.
(See de Vries at para 65). I say,
prima facie, because it is
difficult to conceive that accused numbers 2 and 4 could continue to
assert the right to privacy where
they had willingly handed over
their cell phones to the police and afforded them access to the
contents thereof whether ECTA applied
or not.
[64] The default
position under section 35(5) is that such evidence falls to be
excluded if it would “render the trial unfair
or otherwise be
detrimental to the administration of justice.” A court is
therefore required to undertake a balancing act
between the competing
rights in considering all the relevant circumstances and apply a
value judgment which inevitably brings about
considerations of the
interests of the public and the administration of justice (See S v
Pillay and others 2004(2) SACR 419 (SCA)
para 85 et seq.)
[65] The task of the
court in applying the predecessor of this section under the Interim
Constitution of 1993 (section 25(3)) was
described thus by Kriegler J
in the leading decision of the Constituional Court , Key v
Attorney-General,Cape Provincial Division
and another 1996(2) SACR
113 (CC) at 120g –
“[13] In any
democratic criminal justice system there is a tension between, on the
one hand, the public interest in bringing
criminals to book and, on
the other, the equally great public interest in ensuring that justice
is manifestly done to all, even
those suspected of conduct which
would put them beyond the pale. To be sure, a prominent feature of
that tension is the universal
and unceasing endeavour by
international human rights bodies, enlightened legislatures and
courts to prevent or curtail excessive
zeal by State agencies in the
prevention, investigation or prosecution of crime. But none of that
means sympathy for crime and
its perpetrators. Nor does it mean a
predilection for technical niceties and ingenious legal stratagems.
What the Constitution
demands is that the accused be given a fair
trial. Ultimately, as was held in Ferreira v Levin [NO 1996(1) SA
984(CC)], 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
constitutionally obtained be excluded. But there will also be times
when fairness
will require that evidence, albeit obtained
unconstitutionally, nevertheless be admitted.”
[66] In arguing that
the court should exclude the contested evidence , Mr Uijs laid great
stress upon the late emergence of the
cell phone evidence. He
complained that this caused great injustice to the accused who are
now required almost 10 years later to
remember details of telephone
calls which they were never warned to remember. Also, said Mr Uijs,
the recall of State witnesses
would be necessitated thereby
prolonging the matter. Finally, it was said that the accused were not
in possession of the necessary
software to verify the correctness of
Capt Brink’s conclusions and that the defence had been
confronted with piles of documentation.
[67] While the
protraction of the case has on occasion been due to systemic problems
which are part of long trials involving multiple
accused (illness and
disagreement with legal representatives) I cannot lose sight of the
fact that the accused too have adopted
positions , perhaps
strategies, which have led to the case taking long to conclude. There
are ways to avoid the leading of viva
voce evidence – for
example admissions can be made. The accused all pleaded not guilty
and offered no plea explanations.
That is their right under the CPA,
but this of necessity means that the State is obliged to take the
long route to establish their
guilt. We have all (I think) come to
accept in this matter that this is going to be a very long trial.
When the accused have needed
time to consult their legal
representatives, or the latter have needed time to prepare, they have
been accommodated accordingly.
I see nothing unfair in the further
protraction of this case – it is a complex and detailed matter
which will take long to
complete.
[68] It is apposite
also to mention that the application to strike out the evidence comes
at a very advanced stage of the proceedings.
The witness has
completed his evidence-in-chief and has been cross-examined in part.
The application was launched, not at the beginning
of his evidence,
nor when he stood down to do further investigation at the request of
the defence, but only when the court was
ready to recommence sitting
after yet another lengthy “systemic delay”. To his
credit, Mr Uijs informed the court with
his customary frankness, that
consideration of the 205 and ECTA points had only occurred to him
sometime in mid-June, almost as
if by way of late afterthought.
[69] As to the
objection regarding the late entry of the evidence and the bulky
nature thereof, this is undoubtedly a factor to
be considered. The
court does not know why it comes so late – perhaps it has
something to do with the defences put up by
the accused during cross
examination of State witnesses which has alerted the State to
evidence to disprove the allegations? What
the court does know is
that both sides have had to play catch-up, as it were. That is also
very much a systemic problem in a long
and complex trial involving
multiple scenes of crime and the linking up of the various role
players. The thrust of the cell phone
records has been, it seems (and
I must hasten to add that I do not wish to be heard to be evaluating
it at this stage) to demonstrate
which role players were in contact
with each other. It does not seem to me to be particularly relevant
(save for a few incidents)
when such calls were made. Rather, it
seems that the volume of calls may be of importance to the State. If
that is so, then Mr
X will know if he ever phoned Mr Z or not, and
will be able to instruct his counsel accordingly. And, if there be
doubt, the hard
copies of the itemised billings can be consulted for
purposes of verification. Having considered all the relevant
circumstances,
I am not persuaded that the accused’s fair trial
rights have been, nor will be, affected by the introduction of Capt
Brink’s
evidence.
[70] Section 35(5)
also enjoins the court to consider the administration of justice and
the possible detrimental effect thereon
should the evidence be
excluded. The unchallenged evidence thus far shows that huge
quantities of abalone have been stripped from
our coastline and have
found their way to the Orient where abalone is a prized delicacy. The
resource has been shown to be sorely
depleted and there can be little
debate that the law abiding public would expect those responsible
therefor to be brought to book.
The accused are charged under POCA
which predicates that they have been involved in a criminal
enterprise. The cell phone is an
integral part of modern day life,
and there are very few people who do not make use thereof. It
provides instant, mobile and private
communication to the users. The
cell phone is ideally suited to the commission of crime, whether for
common law offences or under
the more complex regime of POCA. Indeed,
hardly a day goes by in this court that we do not read or hear of the
involvement of cellular
communication in the commission of crime.
[71] As Kriegler J
suggested in Key , the ordinary law-abiding members of the public
expect the criminal courts to do their work
properly – to
acquit where there is reasonable doubt and to convict where there is
not. If in the process of the commission
of a string of offences the
State alleges that the suspects before court have made extensive use
of cellular communication in furtherance
of their illegal enterprise
(and of course I make no finding in that regard at this stage) then
the interests of justice, in my
considered view, demand that it
should be afforded the reasonable opportunity to present that
evidence. After all, nobody has obliged
anyone to make use of
cellular communication in a case such as this. If any of the accused
elected to do so, they willingly ran
the risk that those
communications may later be detected by the authorities.
[72] I further have
regard to the fact that the conduct of the police throughout in
regard to the cell phone evidence has been bona
fide. The requisite
warrants were applied for and obtained prior to the search and
seizure operations , save (as I recall) for
the raid in Bellville
South where the police had probable cause. In assessing the cell
phone data Capt Brink appears, at all material
times, to have
genuinely believed that he was entitled to do so. Indeed, conscious
of the fact that he was dealing with evidence
that could be
considered to be infringing on privacy rights, he took specific steps
to ensure that the evidence that he obtained
was used restrictively
and not made available to all and sundry.
CONCLUSION
[73] In the result,
I am not persuaded that the evidence of Capt. Brink is inadmissible
as alleged by the defence and I am satisfied
that it is properly
before this court. Accordingly, the application for the relief
contained in the notice of motion dated 29 July
2015 is dismissed.
It is further directed that the cross examination of Capt Brink
should continue.
GAMBLE J