2. Common law position: Prior to the ECT Act It is submitted that prior to the enactment of the ECT, the common and statutory law at that time could be extended as widely as possible so as to cater for the arrest and successful prosecution of online offenders. One can easily apply the common law crimes of defamation, indecency (Online child pornography, decimation of child porn), crimen iniuria (also known as Cyber-smearing) fraud (Cyber fraud) (S v. Van den Berg 1991 (1) SACR 104 (T)), defeating the ends of justice, contempt of court (in the form of publishing any court proceedings without the court’s permission online or by other electronic means), theft (S v. Harper 1981 (2) SA 638 (D) and S v. Manuel 1953 (4) SA 523 (A) 526 where the court came to the conclusion that money which had been dematerialized could be stolen in its immaterial form) and forgery to the online forms of these offences. The applicability of the common law however has its own limitations and narrows significantly when dealing with online crimes involving assault, theft, extortion, spamming, phishing, treason, murder, breaking and entering into premises with the intent to steal and malicious damage to property.
When looking at the crimes of breaking and entering with intent to steal as well as the crimes of malicious damage to property two commonly known categories of Computer crimes come to mind. On the one hand, hacking and cracking and on the other hand the production and distribution of malicious code known as viruses, worms and Trojan Horses. In S v. Howard (unreported Case no. 41/ 258 / 02, Johannesburg regional magistrates court ) as discussed by Van der Merwe, the court had no doubt whether the crime of malicious damage to property could apply to causing an entire information system to breakdown. The Court mentioned further that the crime no longer needed to be committed to ‘physical property’ but could also apply to data messages of data information. (van der Merwe, 2008, p.70).
The Interception and Monitoring Act, the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICPCRIA) Act 70 of 2002, the Electronic Communications and Transactions Act and the Promotion of Access to Information Act (PROATIA) generally prohibits the unlawful interception or monitoring of any data message which could be used in prosecuting hacker and crackers.