4.2 Search and Seizure (ECT Act Section 81 – Section 83)
The ECTA has now created ‘Cyber inspectors’ who, with the authority of a warrant, may enter any premises or access information that has a bearing on an investigation (into possible Cyber-crime). These cyber police will be employees of the Department of Communications (Geredal, 2006, p.281). Their powers have been well defined in the Act in which includes the authority to search premises or information systems, search a person or premises if there is reasonable cause to believe they are in possession of article/document/record with bearing on investigation. Cyber inspectors may also demand the production of and inspection of any licences or registration certificates in respect of any law, take any extracts of books or documents on any premises or information system with a bearing investigation, and also the power to inspect any facilities on premises with a bearing on an investigation in terms of Section 82.
In terms of section 80(1) of the ECT Act, the director-general may appoint any employee of the department as a cyber inspector empowered to perform the functions provided for in the chapter. Subsection (2) further provides that a cyber inspector must be provided with a certificate of appointment signed by or on behalf of the director-general in which it is stated that he or she has been appointed as a cyber inspector. Such a certificate provided for in subsection (2) may be in the form of an advanced electronic signature (Geredal, 2006, p.281).
To avoid issues of unnecessary red-tape which may hamper a prosecution, Cyber inspectors in terms of Section 83 are also empowered to access and inspect the operation of any computer or equipment forming part of an information system-used or suspected to have been used in an offence and require any person in control of, or otherwise involved with the operation of a computer to provide reasonable technical assistance. Van der Merwe however correctly points out that the said cyber inspector have not yet been introduced and suggest that the scorpions be the designated law enforcement agency to be blessed with these powers (Van der Merwe, 2008). However with the scorpions future in limbo maybe it would be better to look at the South Africa Police. Buys argues that there are constitutional concerns with regards to the search and seizure provisions (in particular section 14 of constitution-privacy) which still need to be addressed by the South African courts.
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