A step forward in use of digital evidence

In one of the first cases of its kind, South Africa’s 2020 Cybercrimes Act has been put to the test to secure a conviction of incitement based on WhatsApp evidence (see Dudula member fined for xenophobic incitement in Legalbrief Today). Karen Allen, a consultant at the Institute for Security Studies (ISS), says it is a major step forward in the use of digital evidence in the country and signals a growing confidence among prosecutors and investigators to bring cases to court using the law. She notes the conviction of Operation Dudula’s Philani Gumede comes at an important time as the country heads to national elections in 2024. ‘In a climate of political polarisation and factionalism within the governing ANC, online influence could play a significant role.’ Writing in ISS Today, Allen notes our Cybercrimes Act came into force in May 2021. It defines cybercrimes and details the powers to investigate, search, access or seize cellphones, computers, etc. Section 14 states that a data message that incites violence against a person or group, or incites damage to property, constitutes ‘malicious communications’. This, says Allen, recognises cybercriminals not only target computers or networks but may also use technology to perpetrate crimes such as extortion, fraud and incitement.

Allen notes after Gumede was arrested, a team of prosecutors led by senior prosecutor Advocate Roshiela Benimadho acquired a customised ‘cyber warrant’ to search his phone. A separate warrant was then secured to ‘seize’ its contents. The NPA is now pursuing similar cases under the Act. ‘It’s important to highlight the prosecution-guided nature of such investigations,’ said Benimadho. Allen says the Cybercrimes Act builds on the 2002 Electronic Communications and Transactions Act, and regulates the admissibility of electronic or digital evidence. It seeks to strike a balance between privacy issues, authenticity of evidence and the manner of extraction. She says given cybercrime’s borderless nature, access to digital data is also an issue. ‘Although it’s not the only means to collaborate, few countries have ratified the African Union’s ‘Malabo’ convention on harmonising cybercrime laws and enabling cross-border data exchange and legal assistance. There is a move to draft a UN-wide cyber convention that should help set common standards for data sharing for criminal investigations.’ Allen concludes: ‘Many in the cyber world believe that strategically and operationally, SA needs a shift in both mindset and work culture to adequately deal with these offences. Securing a conviction is a vital first step in what may increasingly become a multidisciplinary operation requiring professionalism and trust between the private sector, law enforcement and other stakeholders.’