Lawyers are eagerly hoping that some of the country`s new electronic laws may be put to the test in the Absa Internet banking fraud case, which is the first of its kind using keylogging identity theft.
The suspect arrested in connection with the Absa case is facing 10 counts of fraud and theft, and was brought before Bellville magistrate Clive Linden on Monday. The suspect was not asked to plea and charges were not laid before him as the prosecution is still considering its case.
"We are considering the possibility of laying additional charges against the suspect," says advocate Anthony Steven of the Western Cape directorate of public prosecutions.
However, Steven refused to elaborate whether or not these would involve the various sections of the Electronic Communications and Transactions (ECT) Act.
Lawyers say there is a possibility of charges being laid in terms of the "hacker" definition of the ECT Act that defines hacking as any unauthorised entry into an electronic device, which includes computers.
Reinhardt Buys of IT law firm Buys Incorporated says the possibility of various sections of the ECT Act being used is a positive step because at last some kind of legal guidance would be obtained on its implementation.
"It will be interesting to see how the case will pan out. The ECT Act defines the crime, but does not give guidelines on how the evidence should be collected," he says.
A high court judge was known to have said that 'people over 50 years of age don`t understand computers`, and many high court judges fall into that category.
Michael Silber, independent electronic lawyer,
Independent electronic lawyer Michael Silber says the ECT Act was designed to cater for those cases where it is difficult to prove that physical access had been gained to the computer.
"The ECT Act is broad, and we do need some practical application of how it is to be used," he says.
However, Silber says the charges of alleged fraud may be difficult to prove, "as there is some question whether or not a machine can be defrauded".
Silber adds that precedents are set in the high courts and not in the magistrate courts. If the Absa case remains at Bellville, no real precedent will be set for the whole country.
There are still questions as to whether magistrates and prosecutors have been sufficiently educated in how to deal with the ECT Act and other laws designed to protect against electronic theft and access to information.
Buys says more money needs to be spent on educating magistrates and prosecutors. "In the US there were problems in prosecuting similar cases and they had to go on a big educational drive there. This country needs to do the same," he says.
"A high court judge was known to have said that 'people over 50 years of age don`t understand computers`, and many high court judges fall into that category," Silber points out.
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