S v MILLER AND OTHERS 2016 (1) SACR 251 (WCC)
Evidence — Witnesses — Issue of subpoenas in terms of s 205(1) of Criminal Procedure Act 51 of 1977 — Validity of — Error in date supplied on subpoena — Understandable error not affecting validity of subpoena in circumstances of case.
Evidence — Witnesses — Issue of subpoenas in terms of s 205(1) of Criminal Procedure Act 51 of 1977 — Scope of — Police acquiring cellphone records of accused — No requirement that police seek authority of cyber inspector in terms of ECTA — Electronic Communications and Transactions Act 25 of 2002, s 81 read with ss 85 and 86.
The accused were charged with various contraventions of the Prevention of Organised Crime Act 121 of 1998 and the Marine Living Resources Act 18 of 1998 relating to the unlawful trading in abalone. Part of the evidence tendered by the state consisted of cellphone traffic between the accused and state witnesses. The evidence was presented by a police official who obtained subpoenas from a magistrate in terms of s 205 of the Criminal Procedure Act 51 of 1977 (CPA), directing two cellphone service providers to hand over itemised-billing documents of specified phone numbers after the accused’s cellphones had been lawfully seized. It was contended for the accused that the subpoenas were fatally defective and, in addition, that their right to privacy had been breached by the police accessing their data in conflict with various statutory provisions. The gravamen of the latter complaint was that the police should not have had access to any data on any cellphone without prior authorisation from the relevant authority in terms of ss 85 and 86 of the Electronic Communications and Transactions Act 25 of 2002 (ECTA), given that they were in essence minicomputers containing facilities such as word-processing software with which to send emails; search programs using search engines; and generally storing information, music and photographs.
Held, as to s 205, that the complaint, that the date stipulated on the subpoenas on which the person subpoenaed was to appear before the magistrate was non-existent (31 November 2006) and the subpoenas therefore invalid, could not be upheld. The error was an understandable one if regard were had to the purpose of such date and the fact that if the person were willing to provide the documentation to the police, that was the end of the matter and the date became irrelevant. An incorrect date would not permit the person subpoenaed to simply ignore the request contained in the subpoena.
Held, further, as to the complaint that the information contained in the documentation provided by the service providers went beyond the detail of the subpoena, the court was unable to say at that stage whether the admission of this evidence would render the trial unfair. It would, however, be detrimental to the administration of justice to exclude the evidence from the record as a case, such as the present, should be decided on all the available evidence. There was also no particular secret to the IMEI numbers (unique identification numbers) provided by the service providers, as many cellphones contained that number on the back of the handset’s casing and it could also be obtained from the cellphone itself by keying in a code which was widely known.
Held, further, that the defence had not established that the subpoena was wrongly issued or that it fell to be declared invalid.
Held, further, as to the effect of ECTA, that the ‘authority’ contemplated in s 86(1) of ECTA was the ‘cyber inspector’ and the immediate problem was that, notwithstanding the operation of ECTA for some 13 years, no cyber inspector had yet been appointed. (Paragraph  at 262d–f.)
Held, further, that s 81(2) of ECTA, providing for the powers of cyber inspectors, contained the important word ‘may’ which was indicative of a permissive power to ask for assistance rather than a peremptory directive that the police ‘shall’ apply for such assistance in all instances where they wished to access cellphone data. Having regard to the Act in its entirety, and in particular to s 81(2), the main purpose of ECTA was to regulate electronic commercial transactions and communications related thereto. (Paragraphs – at 264h–265f.)
Held, further, that the evidence should not be excluded because of the ‘fruits of the poisoned tree’ doctrine. Our law was not hit by the same anomalies that beset other jurisdictions, and, through the considered application of s 35(5) of the Constitution, our courts were able to address the issue of privacy, which was invaded through access to data on seized cellphones, and the investigation of crime which was so necessary in a country such as ours with its notoriously high crime rate and disregard for the rights of others, by attempting to achieve some sort of balance. (Paragraph  at 269j–270b.) The evidence was held to be admissible.