In Buchler v Minister of SAPS, Buchler succeeded in having two search and seizure warrants set aside. SAPS and the Hawks seized materials from Buchler’s place of business, an internet café. The police believed that Buchler was using the materials to conduct illegal online gambling activities. Online gambling is deemed a Cybercrime in terms of the Cybercrimes Act if one does not have the right permissions in place.  SAPS and the Hawks relied on the warrants to search and seize materials from Buchler’s internet café to investigate potential illegal online gambling activities they believed were taking place. The court found the warrants that SAPS and the Hawks relied on were invalid because they were vague. The court ordered SAPS and the Hawks to return all seized materials to Buchler.

Who should care about this judgment and why?

  • Business owners that allow people to use computers, the internet, or networks on their premises because people could be using your equipment to commit cybercrimes.
  • Electronic service providers because you need to understand your responsibilities under the Cybercrimes Act.
  • SAPS, third party investigators and law enforcement authorities who investigate instances of Cybercrimes because you need to know what to look out for, how to lawfully obtain the relevant information and the consequences of getting it wrong.
  • Members of the Judiciary and the Magistracy who will issue warrants and decide matters of Cybercrime because you need to have a working understanding of the Cybercrimes Act to effectively apply the law.

What could you do about it?

Our insights on the judgment

There are three interrelated insights from this judgment.

1. There is a knowledge gap

It was clear from the judgment that SAPS and the Hawks carried out an unlawful investigation. The Hawks placed vague affidavits before a Magistrate. Despite this, the Magistrate issued warrants that led to the search and seizure of Buchler’s assets. Not one of these stakeholders noticed the flaws in the process.

Furthermore, the investigating authorities did not appear to know exactly which crimes they were investigating because they failed to set it out specifically in the affidavits. The investigating authorities also provided vague information relating to the evidence they needed for the purposes of their investigation. The Magistrate reviewed a vague set of documents and erroneously issued the relevant warrants. This was a serious cybercrime and even though the High Court found in favour of Buchler, the judgment might have gone SAPS’ way if they applied the law correctly when collecting and transporting evidence.

2. The need for practical, expert led training around cybercrime

In 2022, the Minister of Police published the Standard Operating Procedures for SAPS when investigating cybercrime. The document is not in effect yet. This judgment validates our opinion that there is a huge need for SAPS to get practical, expert led training when it comes to investigating cybercrimes. In its current form, the SAPS SOPs need more refinement to enable authorities to successfully prosecute cybercrime.

3. Successful investigating and subsequent prosecution of cybercrime is a long way away

In our predictions for the Law in 2023 we predicted that South Africa would struggle to catch and prosecute Cybercrimes. The points above indicate that this prediction is spot on. Successful prosecution starts with a proper, and lawful, investigation. The Courts and investigating authorities have a crucial role to play.

Digest

Facts

Buchler owned an internet café suspected of being involved in illegal online gambling activities. The Hawks approached the Magistrate to obtain two search and seizure warrant. One in terms of the Criminal Procedure Act (the CPA) and another in terms of the Cybercrimes Act. The Magistrate issued these warrants.

The Hawks set out the alleged illegal activities and information gathered by undercover agents in affidavits. The Hawks placed the affidavits before the Magistrate to consider. The Magistrate issued the warrants. SAPS executed the warrants and seized the materials.

Buchler challenged the award of the warrants on four grounds.

  1. The Magistrate did not apply their mind when issuing the warrant and did not appreciate the legal principles underlying the issuing of a valid warrant.
  2. The warrants were too broad and did not set out the alleged offence in specific enough detail.
  3. The information used in the affidavits could not be deemed to establish a reasonable suspicion.
  4. The information contained in the affidavits was not obtained in a lawful manner.

Reasoning

The court found that the information in the affidavits to be vague. The affidavits also lacked critical information. Because of this, the court found that the Magistrate could not have applied their mind when deciding whether to issue the warrants. Thus, the Magistrate should not have issued the warrants.

Furthermore, the court found that the information obtained by the undercover agents was unlawful. The CPA sets out strict rules about the use of undercover agents to gather information. In accordance with the CPA, investigating bodies must only use undercover agents as a last resort.

Without valid warrants, SAPS could not lawfully search and seize materials from Buchler’s place of business. SAPS and the Hawks also could not rely on the information in the affidavits. Thus, SAPs and the Hawks could not establish reasonable suspicion.

Order

The court ordered that:

  • the two warrants be set aside.
  • SAPS and the Hawks to return Buchler’s possessions to Buchler’s business.
  • SAPS and the Hawks pay costs.

Details of Buchler v Minister of SAPS

  • Universal citation: [2023] ZAFSHC 1
  • Case number: (6310/2022)
  • Full name: Buchler v Minister of SAPS N.O. and Others

Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Data Protection programme and Cybercrimes programme.