Tapped calls: judge to rule

2010-10-22 00:00

IT would be unconstitutional for the state to make use of the contents of intercepted phone calls between Sheryl Cwele and her co-accused, Frank Nabolisa, and “trample” on her right to privacy, her advocate, Mvuseni Ngubane, said yesterday.

He was opposing a bid by state advocate Ian Cooke to admit into evidence transcripts of conversations allegedly intercepted between Nabolisa, Cwele, alleged drug mule Tessa Beetge and other people between April and June 2008.

Ngubane maintained that even if the police had been entitled to monitor Nabolisa’s cellphone conversations in terms of a judge’s directive, the information obtained could not be used as evidence against a third party — in the present case, Cwele.

Cooke submitted that the conversations — which took place between April 29, 2008, and June 16, 2008 — were legally intercepted by the police in terms of a directive issued by a judge under the Interception and Monitoring Act of 1992.

The directive, issued by Judge J. Swart on March 20, 2008, allowed police to monitor two cellphone numbers which belonged to Nabolisa.

Nabolisa’s advocate, Koos van Vuuren SC, argued, however, that the tapping of Nabolisa’s cellphones was “illegal” on the grounds that the 1992 legislation did not allow cellular conversations to be monitored and intercepted.

He argued that cellphone calls are only covered by the new Interception and Monitoring Act (which came into effect on June 30, 2008) and the old Act was limited to “telecommunications” on a landline.

Van Vuuren argued that before the new Act commenced, a great deal of time, effort and investigations were launched to make special provision for the monitoring of cellular phones, which were not in use before 1993.

Cooke said public interest should also play a part when the court evaluates whether the conversations ought to be admitted.

He submitted the administration of justice could be brought into disrepute if criminals are perceived to “get off the hook on a technicality”.

“Both the judge and the police acted in good faith … Clearly the judge was aware that the directive he issued concerned monitoring of cellular phones,” said Cooke.

He said the evidence is highly relevant to unravel “what everyone wants to know” — namely how it came about that Tessa Beetge ended up being arrested for trafficking drugs in Brazil, when she was supposed to go to London.

Before adjourning the trial to December 13, Judge Piet Koen said he would notify the legal teams as soon as he has reached a decision as to whether or not to admit the calls.

The judge ruled that the contents cannot be publicised, however, until the evidence is formally admitted in court.


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