S v JWARA AND OTHERS 2015 (2) SACR 525 (SCA)

Evidence — Admissibility — Evidence of cellphone communications monitored and intercepted in terms of Interception and Monitoring Prohibition Act 127 of 1992, s 2(2) — Whether fact that Act predating and therefore not referring to cellphone communications meaning that judge’s direction authorising interception and monitoring of cellphone communications invalid for being ultra vires Act.

Evidence — Admissibility — Evidence of cellphone communications monitored and intercepted in terms of Interception and Monitoring Prohibition Act 127 of 1992, s 2(2) — Circumstances in which evidence still admissible, even though application for direction did not strictly comply with formalities — Procedure followed as closely as possible and evidence could not be obtained in any other manner as accused were police officials and endemic corruption therein — Evidence admissible.

Whilst carrying out investigations into the activities of a suspected illegal drugs E manufacturer, the investigating officer came upon references to what appeared to be corrupt behaviour on the part of the first appellant, a superintendent in the South African Police Service (SAPS) who was the head of the West Rand Organised Crime Unit. Because of the sensitivity of the situation and the difficulty of obtaining further evidence, the investigating officer obtained a direction under the Interception and Monitoring Prohibition Act 127 of 1992 (the Interception Act) to monitor cellphone calls made to and from the first appellant’s phone. As a result of the information obtained by this monitoring, an extension of the direction was obtained in respect of the cellphones of the second and third appellants. The three appellants were subsequently tried in the High Court on inter alia numerous charges under the Prevention of Organised Crime Act (POCA), and with fraud and dealing in drugs. They were convicted on some of the counts and the first appellant was sentenced to an effective 25 years’ imprisonment, the second appellant to an effective 22 years’ imprisonment and the third appellant to an effective 20 years’ imprisonment. On appeal against their convictions they attacked the admissibility of the evidence obtained under the Interception Act and contended inter alia that the Act did not provide for the interception of cellphone communications, as cellphones were not operative in South Africa when the Act was promulgated. The appellants also contended that the court a quo had erred in finding that, even if the application for the monitoring direction did not strictly comply with the provisions of the Interception Act, the evidence obtained as a result of the direction was nevertheless admissible. They contended that the failure to obtain evidence within the strict confines of the Interception Act meant that the evidence fell outside the protective umbrella provided by the Act and resulted in a violation of the right to privacy under s 35(5) of the Constitution.
Held, as regards the applicability of the Interception Act to cellphone communications, that the appellants’ submissions in this regard had been dealt
with in the matter of S v Cwele 2011 (1) SACR 409 (KZP) and the court did not disagree with the finding in that matter that this form of communication was included in the Interception Act.
Held, further, that, in the circumstances where the procedure in the Interception Act had been followed as closely as possible and the monitoring of the conversations was the only means to investigate the crime, as the suspects were all members of the SAPS, and because of the endemic corruption therein no other investigative tools could be used without jeopardising the investigation, the exercise of the discretion by the judge was not only a proper one, but to have excluded that evidence would also have led to a failure of justice. The provisions of s 35(5) of the Constitution therefore did not serve as a basis to exclude the evidence obtained pursuant to the directions, and the admission of the evidence by the court a quo could not be impugned.