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Sex, lies and surveillance tapes

Publish date: 18 October 2017
Issue Number: 1705
Diary: Legalbrief eLaw
Category: Forensic

The so-called spy tapes scandal which has dramatically altered SA’s political landscape was back in the headlines with Friday’s Supreme Court of Appeal judgment, which confirmed that the 783 corruption charges against President Jacob Zuma should be reinstated. Legalbrief reports that the legality of the recordings is now being addressed amid speculation that Zuma’s attorney, Michael Hulley, may avoid prosecution for being in possession of the tapes as no one has challenged the legality of the recordings. The smoking gun is recordings of telephone conversations between the boss of the now defunct Scorpions, Leonard McCarthy, and the former NPA head, Bulelani Ngcuka. The conversations were perceived to have reflected political interference in the timing of the serving of an indictment on Zuma, who was facing corruption charges. The issue of the spy tapes was again in the spotlight in the SCA last week, notes Business Day. How or from whom Hulley obtained the recordings has never been revealed. The legality of the spy tapes has also never been challenged in a court. Constitutional law expert Pierre de Vos said Hulley should be prosecuted, but a certificate proving the validity of the recordings was required. If the recordings were valid, it would have been illegal for anyone to pass them on to Hulley and illegal for the attorney to accept them. In his SCA judgment, Judge Mahomed Navsa said there were ‘heavy penalties’ for contravention of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, including those related to prohibition of disclosure. Navsa said that a judge’s certificate – which would have indicated the breadth of the authorisation to record telephone conversations – was not made available to the Appeal Court or the High Court. The NPA would not comment on whether Hulley could face prosecution, notes the report.

Full City Press report

The Western Cape High Court has also examined the secret surveillance used in the investigation against former provincial Police Commissioner Arno Lamoer. According to a News24 report, the court is holding a trial-within-a-trial to determine whether an application to conduct surveillance of Lamoer, tow truck company owner Salim Dawjee, and Brigadiers Darius van der Ross, Sharon Govender and her husband Colin Govender, was procedurally correct. In the witness stand was Colonel Abdul Enus, commander of an investigative unit in the Hawks, who has been hauled over the coals over the manner in which the accused were investigated. Dawjee's counsel William King SC questioned Enus about the security clearance credentials of head of the Western Cape's Crime Intelligence Unit, Major-General Mzwandile Tiyo. Enus acknowledged that Tiyo had meetings to discuss the accused.

Full Fin24 report

In the US, it has emerged that disgraced film producer Harvey Weinstein was snared by a wired Italian lingerie model two years ago. The New York Times reports that Ambra Battilana set up a sting to entrap Weinstein on the evening of 28 March 2015 at a rendezvous at the TriBeCa Grand. She had reported to the police the night before that Weinstein had groped her during a business meeting. The police helped her to set up her next meeting with Weinstein, making sure she was wearing a wire. Battilana asked Weinstein why he had touched her breasts at his office, and he said: ‘I won’t do it again.’ The investigation that unfolded over the next two weeks was perhaps the biggest threat ever faced by Weinstein. As the police and prosecutors investigated the model’s allegations, the movie mogul set in motion a team of top-shelf defence lawyers and publicists to undermine her credibility. They gathered court records from Italy about a previous sexual assault complaint she had filed and then dropped. Stories questioning her motives popped up in the tabloids with anonymous sources. In the end, the Manhattan District Attorney, Cyrus R Vance Jnr, announced he would not press charges. Once the criminal case was closed, Weinstein silenced Battilana with a substantial payment.

Full report in The New York Times

And in Canada, police have determined that a device that functioned as a cell phone tower has ‘likely unlawfully intercepted’ private text messages from unsuspecting bystanders. The Globe and Mail reports that the revelation highlights the growing capabilities of, and legal problems posed by, portable surveillance devices that target cell phone data. The findings centre on federal correctional officials who launched a surveillance effort that aimed to locate inmates' contraband phones in an Ontario prison, but which also ended up intercepting several text messages sent by jail guards. Legal and privacy observers say this determination of unlawfulness likely amounts to the first known police allegation of such a device violating Canada's Criminal Code. The findings come as surveillance gadgets are growing more capable, and spawning fears about whether criminals are now using them to dredge data from the smartphones of the wider public.

Full report in The Globe and Mail

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