ASPIRANT%20PROSECUTOR%20PROGRAMME%20-%20Study%20Guide%20-%202025-part-5.docx

##### [DEFINITION OF AN EXPERT WITNESS] ##### [NATURE OF EVIDENCE] - Direct (factual) evidence where the witness personally and objectively ascertained certain facts by applying his/her knowledge, experience and expertise; and - Opinion evidence where the witness interprets and/or exp...

##### [DEFINITION OF AN EXPERT WITNESS] ##### [NATURE OF EVIDENCE] - Direct (factual) evidence where the witness personally and objectively ascertained certain facts by applying his/her knowledge, experience and expertise; and - Opinion evidence where the witness interprets and/or expresses an opinion based on certain data/information/facts/findings. Such evidence will normally be circumstantial in nature with the result that, if ruled admissible, the evidence should further satisfy the rules as set out in **[R v Blom 1939 AD 188 at 202]** namely that -- - the inference sought to be drawn must be consistent with all the proved facts; and - the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. - *"It must never be forgotten that the function of the expert is not to decide the case. The function of the expert is to provide the court with the tools to assist it in deciding the case. The extent to which the opinions advanced by an expert are to be accepted will depend upon whether, in the judgment of court, those opinions are founded on logical reasoning or are otherwise valid."* **[Ncube and others 2011 (2)] [SACR 471 (GSJ])**. - The expert - is competent to express the particular fact or opinion; and - has personal knowledge of or experience in the topic in question; or - relies on the knowledge or experience of other acceptable experts in the particular field of expertise. **[Manday v Protea Assurance 1976 (1) SA 565 (E)]** - The evidence is not based on a hypothetical situation but that grounds exist upon which the fact or opinion is founded. **[Mkohle 1990 (1) SACR 95 (A)]** - When the expert conducted a scientific examination/analysis (e g DNA-testing), the processes (including control measures) applied, were executed and recorded with such care that it can be verified by any objective scientist at any time and eventually also by the trial court (presiding officer). **[Maqhina 2001 (1) SACR 241 (T*)*]** - It remains the duty of the court to establish whether the witness possesses sufficient skill, training or experience to assist it and is therefore competent to testify as an expert. ### [OPINION EVIDENCE] - Where the knowledge and competency fall within the experienced gained by the lay person. - Where a qualified expert assists the court in determining facts in issue that require specialised knowledge not available to the court. ### [Exceptions] H. TYPES OF EVIDENCE ----------------- - **SIMILAR FACT EVIDENCE** i. it is irrelevant ii. it can be prejudicial against the accused i. Continuos conduct -- VALKIN v DAGGAFONTEIN MINES LTD 1960(2) SA 507(W); S v LEBOGANG 1980(4) SA 236(O); R v MAHARAJ 1947(2) SA 65(A) ii. Improbability of chance or similarity -- R v ROETS 1954(3) SA 512(A); R v JONES 1970(2) PH H 129(A), S v MOTSHEKWA 1993(2) SACR 247(A) iii. Common origin -- LAUBSCHER v NATIONAL FOODS Ltd 1986(1) SA 553(ZH) iv. Presence at a certain place-- R v DLAMINI 1960(1) SA 880(N); S v KHANYAPA 1979(1) SA 824(A) v. Contradiction of an otherwise available witness -- S v M 1970(1) SA 323(RAD); S v SOLOMONS 1959(2) SA 352(A) - Section 197, Act 51 of 1977 - Section 211, Act 51 of 1977. S v PAPINYANA 1986(2) PH H 115(A) - Section 240, Act 51 of 1977 - Section 241, Act 51 of 1977 #### A previous consistent statement can best be described as a statement by a witness which was made (orally or in writing) at a stage prior to the time when it is repeated in court. ###### To refute allegations of recent fabrication ###### Previous identification - Which crimes? - Voluntary report - the so called first report. This does not mean that the statement has to be a spontaneous one. It merely means that there should not have been any undue pressure brought to bear on the victim to tell what happened. The statement may be in the form of answers to questions. - Complainant must testify -- **R v KGALADI 1943 AD 255 -** It is to prove consistency. If the complainant does not testify, there is no previous consistent statement. ###### (d) Statutory Exceptions - Explanation of plea -- Section 115 - Section 212(12), Act 51 of 1977. *Viva Voce* evidence about Section 212 certificate - Section 215(4), Act 51 of 1977. - Section 222, Act 51 of 1977. - CIRCUMSTANTIAL EVIDENCE ----------------------- - CORROBORATION: -------------- ##### [RULE AGAINST SELF-CORROBORATION] i. It must be admissible -- **R v QWABE 1939 AD 255** ii. Can be provided by any means -- such as the evidence of another witness, circumstantial evidence, real evidence like a video recording, etc iii. Corroboration must come from a source outside the fact that needs to be corroborated -- **R v CHRISTIE 1914 AC545; S v ROSSOUW 1994(1) SASV 626(OK)** iv. It must be on a material aspect -- S v P 1957(3) SA 444(A); S v ARTMAN 1968(3) SA 48(A) v. Corroboration does not alter the evidentiary burden - S v KEARNEY 1964(2) SA 495(A); R v NDLOVU 1983(4) SA 507(ZS) vi. Corroboration can also be provided by the opposing party -- S v W 1963(3) SA 516(A); S v ROSSOUW 1994(1) SASV 626(OK) i. confirmed in material respects; **OR** ii. the commission of the crime must be proved by means of other evidence, independent from the confession. - CAUTIONARY RULE --------------- - SINGLE WITNESS -------------- ###### Section 208, Act 51 of 1977 - ACCOMPLICES ----------- - CHILDREN -------- - TRAPS ----- - CREDIBILITY ----------- 1. **[TENDENCY TO LIE]** 2. **[CONTRADICTIONS]** 3. **[ATTITUDE AND CONDUCT OF THE WITNESS IN THE WITNESS STAND MUST] [BE HANDLED WITH CARE.]** - HEARSAY EVIDENCE ---------------- i. Permission of the other party - section 3(1)(a) ii. Provisional admissibility -- section 3(1)(b) iii. Judicial discretion - section 3(1)( c) - CONFESSIONS AND ADMISSIONS: --------------------------- ##### [ADMISSIONS:] ##### [TYPES OF ADMISSIONS:] - **[FORMAL ADMISSIONS]** ###### Van der Westhuizen v S \[2011\] ZASCA 36; 2011 (2) SACR 26 (SCA) at para 34. ##### [THE MAIN DISTINCTION BETWEEN A FORMAL AND INFORMAL ADMISSION:] - The statement must have been made by the accused, alternatively he must have accepted the fact by way of his actions or conduct. - The statement must have been made voluntarily. - The name of the declarant in the statement must correspond with the name of the accused in the charge sheet - S v DHLAMINI 1981(3) SA 1105(W) - Where applicable, a certificate by the interpreter must be applied to the document - It must appear *ex facie* the document itself that it was made voluntarily 2. CONFESSION ---------- ##### [DEFINITION] - Section 217(1) -- Made to private persons, justice, and magistrates (not in writing) -- State carries the burden to prove that all the prerequisites has been met before it can be admitted in evidence. S v KHOZA 1984(1) SA 57(A) iii. Accused in his sound and sober senses - R v RAMSAMY 1954(2) SA 491(A) iv. Without any undue influence - S v MAVELA 1990(1) SASV 582(A); S v KONDILE EN ANDERE 1995(1) SASV 394(OK); S v NDIKA AND OTHERS 2002(1) SACR 250(SCA) ONUS OF PROOF ------------- a. Intentionally and without the knowledge or permission of the dispatcher to intercept a communication which has been or is being or is intended to be transmitted by telephone or in any other manner over a telecommunications line; or b. Intentionally monitor any conversations or communications by means of a monitoring device so as to gather confidential information concerning any person, body or organization, is committing a crime 1. **Subject to the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992), a person who intentionally accesses or intercepts any data without authority or permission to do so, is guilty of an offence.** 2. **A person who intentionally and without authority to do so, interferes with data in a way which causes such data to be modified, destroyed or otherwise rendered ineffective, is guilty of an offence.** 3. **A person who unlawfully produces, sells, offers to sell, procures for use, designs, adapts for use, distributes or possesses any device, including a computer program or a component, which is designed primarily to overcome security measures for the protection of data, or performs any of those acts with regard to a password, access code or any other similar kind of data with the intent to unlawfully utilise such item to contravene this section, is guilty of an offence.** 4. **A person who utilises any device or computer program mentioned in subsection** 1. **A person who performs or threatens to perform any of the acts described in section 86, for the purpose of obtaining any unlawful proprietary advantage by undertaking to cease or desist from such action, or by undertaking to restore any damage caused as a result of those actions, is guilty of an offence.** 2. **A person who performs any of the acts described in section 86 for the purpose of obtaining any unlawful advantage by causing fake data to be produced with the intent that it be considered or acted upon as if it were authentic, is guilty of an offence.** 1. **A person who attempts to commit any of the offences referred to in sections 86 and 87 is guilty of an offence and is liable on conviction to the penalties set out in section 89(1) or (2), as the case may be.** 2. **Any person who aids and abets someone to commit any of the offences referred to in sections 86 and 87 is guilty of an offence and is liable on conviction to the penalties set out in section 89(1) or (2), as the case may be.** 1. **Any person who---** a. **Unlawfully possesses;** b. **Creates, produces or in any way contributes to, or assists in the creation or production of;** *[Copyright offences]* ================================== ###### What You Need to Know About Copyright: 3. Put music on your website without permission 4. Post an article without permission, even if it\'s about you 5. Use an image by linking to it rather than copying it (This is still copyright infringement) *[CYBER CRIMES ACT 19 of 2020]* =========================================== 1. The creation of offences which have a bearing on cyber crime 2. Criminalize disclosure of data messaging that is harmful 3. Provide for Protection Orders 4. Regulate the jurisdiction 5. Powers to investigate cyber crime 6. Mutual assistance 7. Establish a designated point of contact 8. Provide for proof by way of affidavit 9. Impose obligations to report cyber crimes 10. Capacity building 11. Executive power to enter into agreement with foreign states for the detection, prevention, mitigation, and investigation of cyber crimes 12. Delete and amend provisions of certain laws 13. Incidental matters 1. [LEGAL RECOGNITION OF DATA MESSAGING] a. *In the form of a data message; and* b. *accessible in the manner usable for subsequent reference*" 2. [ORIGIN] - There is no existing international treaty on cyber-crime which has being drafted by the United Nations, - The closest to such a treaty is the European Union --Originated Counsel of Europe convention on Cyber Crime, - South Africa has signed, but did not ratify the said convention however has complied with the first part of the convention in terms of which member States are obliged to: - Criminalize the illegal access to computer system, - Illegal reception of data to computer system, - Interfering with computer system without right, intentional interference with computer data without right, - Use of inauthentic data with the intent to put it across as authentic data (forgery), - Infringement of copyright rights online, - Interference with data of functioning of computer system, - Child pornography related offences. - POCA, - FICA, - Copyright Act, - Harassment Act and hate speech, - Admissibility and evidential weight of data messages (ECT Act), - An*ton Pillar* orders. 4. [SECTIONS AND SIGNIFICANT FEATURES OF THE CYBERCRIMES] [ACT] +-----------------------------------+-----------------------------------+ | **SECTION** | **PROVISIONS** | +===================================+===================================+ | | | +-----------------------------------+-----------------------------------+ | **SECTION 1- DEFINITIONS** | The most significant definitions | | | include: | | | | | | **Article** -- means any: | | | | | | - - - - | +-----------------------------------+-----------------------------------+ +-----------------------------------+-----------------------------------+ | | ii. iii. | +===================================+===================================+ | **SECTION 2 -- UNLAWFUL ACCESS** | Makes provision for unlawful | | | securing of access in respect of | | | computer systems or computer | | | storage medium, | | | | | | The Section regulates that any | | | person who unlawfully and | | | intentionally secures access to | | | data, a computer program, a | | | computer data storage | | | | | | medium or, a computer system is | | | guilty of an offence. | +-----------------------------------+-----------------------------------+ | **[SECTION 3]** | Creates an offence if an unlawful | | | interception of data occurs, | | | | | | An unlawful interception of data | | | may take the form of wiretapping, | | | installing a sniffer to monitor | | | communications on a network and | | | packet sniffing. | +-----------------------------------+-----------------------------------+ | **[SECTON 4]** | Creates an offence if a person | | | unlawfully and intentionally uses | | | of possess and software or | | | hardware tool, whose purpose is | | | to contravene [Sections 2(1) and | | | (2), 3(1), 5(1), 6(1) or 7(1) (a) | | | or (d).] | +-----------------------------------+-----------------------------------+ | **[SECTION 5]** | Creates an offence if a person | | | unlawfully and intentionally | | | interferes with a data computer | | | program. | +-----------------------------------+-----------------------------------+ | **[SECTION 6]** | Creates an offence if a person | | | unlawfully and intentionally | | | interferes with a computer data | | | storage medium or computer system | | | and similar to Section 5 and 6 | | | provides a clear definition of | | | what constitutes and interference | | | in this context. | +-----------------------------------+-----------------------------------+ | **[SECTIONS 7,] [8, 9 | Respectively creates an offence | | AND 10]** | if: | | | | | | - | +-----------------------------------+-----------------------------------+ +-----------------------------------+-----------------------------------+ | | - - - | +===================================+===================================+ | **[SECTION 11]** | Provides for aggravated offences | | | and maps out clearly that its | | | application extends to [Section | | | 3(1), 5(1), 6(1) or | | | 7(1)] insofar as the | | | passwords, access codes or | | | similar data and devices are | | | concerned. | +-----------------------------------+-----------------------------------+ | **[SECTION 12]** | Provides that theft of | | | incorporeal property included in | | | the common law offence of theft | +-----------------------------------+-----------------------------------+ | **[SECTION 13]** | This section contains important | | | terminology used in part of the | | | Act and defines: "disclose"- and | | | the methods of disclosure, groups | | | of persons: | | | | | | including "race, gender, sex, | | | pregnancy, marital status, ethnic | | | or social origin, colour, sexual | | | orientation, age, disability, | | | religion, conscience, belief, | | | culture, language, birth or | | | nationality", as contained in | | | POPIA, | | | | | | "Related person" and "violence". | +-----------------------------------+-----------------------------------+ | **[SECTION 14]** | Creates an offence in the event | | | that a person discloses, by means | | | of an electronic communications | | | service, data message to a | | | person, group of person or to the | | | general public with the intention | | | to incite damage to property that | | | belongs to a person of group of | | | persons. | +-----------------------------------+-----------------------------------+ | **[SECTION 15]** | This Section creates an offence | | | if a person unlawfully and | | | intentionally disclosures a data | | | message which threatens a person | | | or damage to property belonging | | | to that person or related persons | | | or violence against that person | | | or related persons. | +-----------------------------------+-----------------------------------+ | **[SECTION 16 --] | Creates an offence if a person | | [DISCLOSURE] [OF | unlawfully and intentionally | | DATA] [MESSAGE | disclosures, by means of | | OF] | electronic communication service, | | [INTIMATE] | a data message of an intimate | | [IMAGE]** | image of a person without the | | | consent of such person. On the | | | definition of intimate image -- | | | "non-consensual pornography, | | | involuntary pornography, involves | | | the distribution of sexually | | | graphic images of individuals | | | were at least one of the | | | individuals depicted did not | | | consent to the dissemination. | +-----------------------------------+-----------------------------------+ | **[SECTION 17]** | Creates an offence in the event a | | | person unlawfully and | | | intentionally attempts, conspires | | | with another person, or aids and | | | abets, incites, instigates, | | | instructs, commands or procures | | | another to commit an offence set | | | out in terms of Part I and Part | | | II contained in Chapter 2 of the | | | Act. | +-----------------------------------+-----------------------------------+ | **[SECTION 18]** | Creates various alternatives when | | | the evidence presented in | | | criminal proceedings does not | | | particularly prove the commission | | | of an offence that is charged but | | | rather proves contravention of | | | another Section of the Act. | +-----------------------------------+-----------------------------------+ **[SECTION 19]** Sets out appropriate sentences if found guilty. ------------------------------------------------------------ -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **[SECTION 20]** This Section provides for civil relief. **[SECTION 21]** Provides that the Complainant who lays a charge with the South African Police Services, that an offence contemplating that [Section 14, 15 and] has allegedly been committed against them may on an ex-parte basis apply to the Magistrates Court for a Protection Oder, pending the finalisation of the criminal proceeding. **[SECTION 22]** Provides that the Court determining the application must consider any additional evidence if it deems fit including oral evidence or evidence by affidavit which must form part of the record of the proceedings. **[SECTION 23]** Makes provision where the application for a protection order made in terms of [Section 21] and the Court is satisfied that in terms of [Section 23] a protection order must be issued and the particulars of the person referred to in [Section 20(1)(a)] who disclosures the data message or electronic communication services referred to in [Section 20(1)(b)] whose service is used to host or where it is used to disclose such data message is unknown, the court is entitled to adjourn such proceedings on conditions as it deems appropriate. **[SECTION 24 --] [JURISDICTION]** Any Court in South Africa has jurisdiction to try any offence referred to in Part I and Part II of Chapter 2 of the Act, the definition in respect of jurisdiction is confusing and, in all probability, will be challenged as there does not appear to be jurisdictional requirements sufficient to justify the appropriate Court for hearing of the matters involving the Act. **[SECTION 25]** Provides pertinent definitions of terms such as "access", "investigator" and "seize". **[SECTION 26]** Sets out standard operating procedures in respect of personnel in the Government that are responsible for the consultation process. **[SECTION 27]** Provides that the Criminal Procedure Act applies to Chapter 4 insofar as same is consistent with the Cyber-Crimes Act. **[SECTION 28]** Confers police officials with the authority to search for, gain access to or seize certain articles. **[SECTION 29]** Delineates the types of articles that may be subject to a warrant in terms of Section 28 **[SECTION 30]** Provides that an application for a warrant may be made orally. **[SECTION 31]** Confers authority to exercise powers in terms of Section 26 without a warrant but rather with the consent of a person who has authority to give consent for same. +-----------------------------------+-----------------------------------+ | **[SECTION 32]** | Confers authority on the police | | | officials to exercise powers set | | | out in Section 28 without a | | | warrant. | +===================================+===================================+ | **[SECTION 33]** | Confers authority upon a police | | | officer to conduct an arrest | | | without a warrant against a | | | person who commits an offence in | | | terms of Parts I and II of the | | | Act. | +-----------------------------------+-----------------------------------+ | **[SECTION 34]** | Makes it obligatory for | | | electronic communications service | | | providers, financial institutions | | | or person who are in control of | | | information, objects, or | | | facilities to assist the police | | | official by providing technical | | | assistance and any other | | | necessary assistance in the | | | investigation process against a | | | cyber-crime suspect. | +-----------------------------------+-----------------------------------+ | **[SECTION 35]** | Creates an offence where any | | | obstruction or hindrance is made | | | against the police official | | | exercising powers in terms of | | | [Section 28 and 29] | | | of the Act. | +-----------------------------------+-----------------------------------+ | **[SECTION 36]** | This section requires the police | | | to exercise their powers decently | | | and without infringing upon a | | | person's other rights. | +-----------------------------------+-----------------------------------+ | **[SECTION 37]** | Sets out an offence that an | | | offence is committed where the | | | police official exercises Section | | | 28 powers wrongfully. | +-----------------------------------+-----------------------------------+ | **[SECTION 38]** | Creates an offence where any | | | person provides false information | | | under oath in relation to the | | | provisions set out in Chapter 4. | +-----------------------------------+-----------------------------------+ | **[SECTION 39]** | Provides that it is unlawful to | | | disclose information gathered | | | during the investigation unless | | | certain exceptions apply. | +-----------------------------------+-----------------------------------+ | **[SECTION 40] | Sets out what constitutes | | [SECTION 41]** | unlawful interception of indirect | | | communication. | | | | | | Empowers the designated police | | | officer to issue a preservation | | | of data direction against any | | | electronic communications, | | | service providers, referred to in | | | Section 40(3) or a financial | | | institution which has in its | | | possession of, receives or is in | | | control of certain data. Provides | | | that an expedited vision of data | | | direction maybe issued by a | | | police official where certain | | | requirements are met. | +-----------------------------------+-----------------------------------+ | **[SECTION 42]** | Confers powers upon a Magistrate | | | or a Judge to issue a | | | preservation of evidence | | | direction | +-----------------------------------+-----------------------------------+ | **[SECTION 43]** | Provides that an application for | | | such a direction may be made | | | orally | +-----------------------------------+-----------------------------------+ | **[SECTION 44]** | Provides for the disclosure of | | | data in terms of [Section 29 | | | (1).] | +-----------------------------------+-----------------------------------+ | **[SECTION 45]** | Provides that a police official | | | may without authorisation, obtain | | | and use publicly available data | | | from a person who is in | | | possession of it. | +-----------------------------------+-----------------------------------+ | **[SECTION 46] [TO | These Sections deal with the | | 51]** | international co-operation in | | | criminal matters and provides for | | | the mechanism by way of which the | | | National Commissioner of the | | | National Head of Directorate may | | | provide co- operation to foreign | | | law enforcement and other | | | agencies, make request | | | | | | for foreign assistance and | | | co-operation. | +-----------------------------------+-----------------------------------+ It also makes obligatory for an electronic communications service provider or financial institution to comply with an order of a designated Judge in terms of [Section 48(6)] and provides that the National Director of Public Prosecutions must inform the designated Judge of applicable authority in a foreign State of the outcome of a request for assistance and co-operation. It also provides for issuing a direction requesting assistance from a foreign State. -------------------------------------------------- ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **[SECTION 52]** Obliges the National Commissioner to establish a designated office with an existing structure of the South African Police Services that will be known as the designated points of contact for South Africa. **[SECTION 53]** Provides for inducing of evidence by way of affidavit in terms of interpretation of data, the design or function of data, computer program, computer data storage medium or computer system or computer science, electronic communications networks and technology, software engineering or computer programming. **[SECTION 54] [TO 56]** Provides that electronic communications service providers must within 72 hours of having become aware report any offence committed in terms of Part I of the Act and also provides that a cabinet minister responsible for policing must establish and maintain sufficient operational capacity to detect, prevent and investigate cyber-crimes and police officers have to receive requisite training and develop accredited training programs for SAPS members to achieve the purpose of the Act and the National Director of Public Prosecutions must keep statistics of prosecutions relating to cyber-crime.