dc.description.abstract |
In the Republic of South Africa (‘RSA’), there are exponentially increasing and indeterminable
consequential risks and breaches involved in the spontaneous and indispensable personal,
official and general anatomic uses of the quicksilver, complex and delicate conscriptive,
interoperable, non-compartmentalised and non-passworded compartmentalised online
communication devices, technologies, networks, applications, and services. These risks and
breaches result in a disequilibrium in the following antithetical legal vector argument. On the
one hand, these risks and breaches are attributed to the non-recognition, and inadequate
protection of the independent and unique right in online communication, the concept of which
originates from the jurisprudence of the broad gamut of the right to privacy. On the other hand,
these risks are exacerbated by the increasing, unrestrictive and perpetual techno-legal abuse of
online communication by law enforcement agencies or officers (‘LEAs’ or ‘LEOs’) of the
alternative conduct of the covert online criminal investigation (‘OCI’) of serious offences,
arising from the dearth of and non-compliance with the regulation for the conduct of an OCI.
This dual study clinically examines the irreconcilable conflict between the protection of the
right in online communication and the public criminal mandate of the State to conduct an OCI
of serious offences. Firstly, this study investigates the existence of the levels of risks involved
in the conscriptive, interoperable, non-compartmentalised and non-passworded
compartmentalised continua of privacy interests in online communication, requiring a
corresponding protective and secure regime in the conduct of an OCI. Secondly, it probes into
the various substantive and procedural thresholds required in the limitation of the right in online
communication when conducting an OCI. Lastly, it examines the mechanisms for institutional and structural independence, competence, due process, separation of powers and checks and
balances in the conduct and oversight of the conduct of an OCI in the RSA.
Consequently, the examination of the above issues reveals the absence, inadequacy of, and
non-compliance with the substantive and procedural constitutional, legislative and policy
framework that caters for the protection of the right in online communication and the conduct
of an OCI in the RSA. Accordingly and specifically, this study proposes that the RSA adopts
an adequate constitutional and single legislative framework to address the contemporary
societal techno-legal tapestry in the conflict between the right in online communication and the
conduct of an OCI of serious offences in the RSA as follows.
Firstly, it is imperative to unequivocally, in the legal framework in the RSA, including the
Constitution, consider the existence of higher levels of risks and the simultaneous or
consequential recognition of the higher levels of protection of the invaluability in online
communication —including the emerging quantum computing— in contrast with non-online
communications. This contrast hierarchically compels the unimpeachable protection of the
independent right to the secrecy of online communication (‘SOC’), which is inadequately and
incongruously protected as mere online privacy in section 14 of the Constitution of the RSA.
Secondly, it is equally crucial to consider the application of or compliance with adequate
substantive and procedural scientific threshold requirements to conduct an OCI of serious
offences in the RSA. These requirements include the application of: online conscription;
section 205 of the Criminal Procedure Act; ‘no server, but law’ principle as opposed to the
U.S. ‘no server, no law’ principle; robotic and non-robotic OCI; ex-parte and non-ex-parte
verbal and written quadripartite techno-legal individual and mass online criminal investigation
of privileged and non-privileged online communications by ghost and non-ghost applicants;
pre and post OCI data management procedure and admissibility of void and voidable evidence.
Furthermore, it is of great importance to apply the all-embracing proportionality principle in
section 36 of the Constitution in which this study, from a contrarian belief, classifies serious
offences into six categories under four criteria and propounds some definite and functional
Popoola mathematical and non-mathematical formulae in the standard of proof required to
conduct an OCI, the procedure of which should be incorporated in a legislation.
Thirdly and finally, it is of utmost significance to, in the legal framework in the RSA, including
the Constitution, consider the application of or compliance with safeguard mechanisms in the
conduct of an OCI. These mechanisms are to ensure the inviolability of the principles or
requirements of structural and institutional independence, competence, due process, separation
of powers and checks and balances in the conduct and oversight of the conduct of an OCI of
serious offences by LEAs or LEOs and other stakeholders respectively. |
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