I attended the Cyber Law Conference at the Innovation Hub in Pretoria last week, and although a lot of the “technology law” went over my head, I did manage to get the just of the presentations and capture the summary. Should you be interested in the further information on the presentations, please contact the conference organiser Barend Burgers. My notes follow below..
Opening by Andries Nel – Deputy Minister from Department of Justice and Constitutional Development
Andries mentioned that government is behind the drive for electronic systems and that the evidence of this is in the recent appointment of the IJS Board, who are tasked with driving electronic processes and workflow through the justice systems, starting at inception when opening the case.
There is also a move to change court and other judiciary procedures to allow for electronic handling and process to eliminate paper – which will assist greatly in the disappearance of court and case documents.
Sizwe Snail of Snail Attorneys
Often e-gambling crime is used to launder money, especially to neighbouring countries where the money can be cashed in easily. They open the account, gamble and then cash out either the remainder of the credit or winnings. E-gambling is controlled with the Gambling Act as well as the Lotteries Act.
According to the acts, it is legal to offer e-gambling if:
• Must have an official gambling license
• The gambler must be over 18 years of age
• It must be legal for people to gamble in that specific jurisdiction
• The gambler must have a registered account open with the gambling provider
• Must abide by the Regulations.
The problem is that the Regulations have not been finalised and gazetted, and therefore GAMBLING IS ILLEGAL IN SOUTH ARICA – as referred to in the case Casino Enterprises (Pty) Limted vs Gamblin Board and Others – 2010(6) SA 38(GNP) – 16th August 2010.
One Liner: Gabling is illegal in South Africa at present.
E-Justice and the Attorneys’ Profession
LSSA is working with government through the justice department to allow for information to reach all players, including the most rural of areas.
LSSA is also working with the Masters office to start allowing electronic enquiries into the process.
There is a drive to start delivering content via cellular smartphones to outlying areas, a difficult challenge as in the smartphone device you have 3 operating systems to deal with from the word go.
In KZN 75% of all law firms have 2 partners or less.
One liner: Masters Office Portal has been established for attorneys to access information and are asking that attorneys give feedback on the portal.
Prof Omphemetse Sibanda
e-Justice in SA and in Europe
The benefits of e-Justice:
• Efficiency in the departments
• Lower cost per transactions
• Speed up the process
• Instil confidence from the citizens and business.
There is a new drive behind e-justice due to the new service delivery charters. There needs to be a single effort for the new e-justice system and not have single segmented efforts from all sections of the departments.
In the EU electronic systems and usage of computers are far more prevalent, therefore the adoption of an e-justice system is far easier than in South Africa where usages of computers would be a huge education curve.
One liner: The new Service Delivery for the justice cluster will help in driving the e-justice system into reality.
Pieter du Rand
Also says that the drive now to deliver on the justice cluster will help speed up the deliver on the electronic systems.
For the e-Justice system to work, these issues need to be considered:
• Streamlined and efficient criminal justice process
• Effective person management
• Ability to deal with victims and perpetrators effectively.
Programme Execution Strategy
1. Upgrade each department’s systems
2. Integrate between departments
The maintenance court, JDAS, has already started using technology in allowing electronic enquiries into the payment system.
Challenges that face the e-justice system are things like training, resources and recent budget cuts, due to the slump in the economy.
One Liner: The maintenance court, JDAS, has already started using technology in allowing electronic enquiries into the payment system.
Advocate Paul Louw
Cyber Crime and e-Justice
There are three kinds of cybercrime:
• Commercial Identity Theft
• Financial Identity Theft
• Cloning Theft
Often data integrity breaches that happen inside the corporate office originate from 3rd party contractors – vet them properly and limit the movement around the organisation.
In the USA, 5% of all cyber criminals are caught!
Better information sharing between the justice departments will go a long way in the improving of case management in the justice system.
Investigating officers should be able to do remote computer investigations on perpetrators systems, including across borders.
One Liner: Biometrics is the only easy solution to identity theft in South Africa.
Directorate for Priority Crime Investigation (DPCI)
A specialised unit in the SAP is to be launched on the 1st January 2011 which will specialise in cybercrime and ecommerce crime. Already 14 people with vast experience in Information Technology have been posted to positions within the new department.
It is important to start profiling these cybercriminals to be able to quickly narrow down the search for criminals.
One Liner: New cybercrime investigating unit to be launched in the SAP on 1st January 2011.
Privacy – Employers vs Employees
You cannot monitor calls/internet usage unless you have a policy in place to request permission.
It may be a good idea to have a disclaimer pop-up box to address this, as often changes to policies or employment contracts may flair up labour issues.
Make sure you always use the “best evidence” rule – don’t print the email if you have access to the electronic original, take the original with a projector and explain to the court why this is the best evidence.
The court will allow electronic evidence – you need to convince the court why it is so vital, often specialists in the field are needed.
Often you can get local jurisdiction by identifying the goods or IP that are housed or located locally.
One Liner: Use “best evidence” when using electronic evidence – the additional information contained with the data is vital!
Kendall Watt and Gerrie van Gaalen
Secure Forensic email storage
85% of all confidential information is contained in email.
The board of directors in each firm are the custodians of the electronic stored information.
When creating a policy, start with your business ethics, workflows etc and make sure your policy is a practical representation thereof.
Credit applications, whether successful or not, have to be retained for 3 years.
When drafting a new electronic storage and management policy:
• Establish the status and successfulness of the current policies
• Look at which laws have to be addressed
• See what the retention requirements are for each type of information
• Determine the current compliance
• Research the business processes and ethics
• Draft the new policy.
One Liner: Credit applications whether successful or not have to be retained for 3 years.
How Vodacom can help access to justice?
Vodacom has donated BlackBerry phones to all school principals with applications to enable them to manage their schools better, especially the remote rural schools. A task that before took 2 to 3 hours a day, now takes 10 to 15 minutes.
Data sharing between justice departments must start to happen and the smartphone is the perfect tool to assist with this. Especially to the police person on the street – applications can be developed to make their lives a lot easier and assist with accurate data which will save time.
One Liner: Vodacom has donated BlackBerry smartphones to school principals to assist in managing their schools.
The role of the mobile in e-justice
A great video on the “What does it all mean – IT Stats and figures.”
Existing e-government systems can assist e-justice
What are the reasons that government is slow to move on e-justice?
• Shelf ware – Applications when complete or close to complete are shelved
• Vendor Lock-in – When vendors develop new systems they often lock in the government so that it makes it almost impossible to either adapt the system or change the system
• Political Migration – When the political landscape changes, new custodians believe that irrespective of how well previous systems have worked, that they simply must go
• No Skills excuse – It is believed that unless it is locked into a proprietary development system it will not work
• Replacing old technology – Even though the systems work well, it is often changed as it is seen as “old technology”
• Duplicate technology – The same department will have various vendor systems, just because they like that flavour – which means future development is impossible.
How to start the e-justice systems?
• Fix the current systems
• Stop the wastage
• Invest in people – they will then be able to mould the systems in the future.
One Liner: Who Am I Online is a classic example of a completed project that is shelved without valid reasons.
Prof Mervyn King
The role of IT in corporate governance and it’s relevance to e-justice
The King Commission was established in 1992, through a request by Nelson Mandela. King I tackled the challenge of allowing all races and class of person to be included in the company structures.
King II was released in 2002 and tackled the sustainability of companies and the reporting of such.
In 2009 work started on moulding the King III where the cornerstone is corporate governance and sustainability. Something that the commission looked at was the fact that listed companies are no longer owned by large family consortiums but pension funds, which are actually the citizens of the country.
Company reporting now includes social, financial, environment and sustainability aspects.
JSE listed companies will have to report on corporate governance, other companies will have to “apply or explain” on the adoption of King III. All international governance trends have been incorporated into King III.
Dispute resolution will evolve into a huge issue with the cross border transacting and hosting of information.
One Liner: IT risk form part of the companies risk management.
MobiGov – e-justice can benefit from mobile
Four goals to M-Gove
• customer orientated customised services
• system and driven government innovation
• preventative system for safer society
• sustainable advancement of e- gov.
• governance structure
• process innovation
• performance management
• human resources
• global leadership.
These stages of e- gov
- stage one-emerging
- a web presence
- stage two-enhanced
- easy access to public information
- stage three-interactive
- interactive portal sites
- stage four-transactional
- two-way communication between citizens and government
- stage five-connected
- online services and integrated back-office infrastructure
What is Mobi-Gov?
The use of mobile devices through a mobile connection provided by MTN in to government applications.
Government is e- government’ s own stumbling block. Their policies like Sentech providing connectivity instead of MTN or Vodacom causes huge delays. A great start by government would be to keep these obstacles out of the way.
At the moment emptying have an initiative where they have provided the Metro police with cameras in the vehicles to take pictures of the car’s registration and to have it checked by the registration network. Once the registration is checked the information is fed back to the officer.
One liner: MTN have assisted Metro police in providing registration cameras in vehicles.
With regards to the retention of records as per section 16 of the ECT act, the data must be as easy to retrieve as if it was a physical document or file.
When using electronic evidence you must be able to prove that the evidence you have is the original or is the best available copy. One needs to be careful here that the application or program used at the time of creation is available to reproduce the evidence as originally was displayed.
The Law commission electronic evidence paper is asking that interested parties make comments on the e-evidence issue.
The “cloud” (Software As A Service) is everywhere and nowhere – how do you track or take possession of the servers containing the data?
One liner: With the electronic retention of records the data must be as easy to retrieve as he it were a physical file.
e-Filing – a case study
Litigation with large volumes of documents is a perfect case for electronic litigation management (ELM) like BriefCase. However for low volumes of documents the simple use of Adobe PDF files in a folder will also be a great benefit.
Documents used as litigation management is expensive when compared to electronic litigation management:
• the copying of documents, most often 5 to 7 copies, is costly
• review of the documents is usually charged per hour.
Electronic Litigation Management allows for:
• reduced costs
• saves time
• gives the appearer more tome to compose themselves as retrieving the evidence in electronic form is much faster than the opposing party using manual.
Electronic correspondence and e-filing is allowed in the following courts on condition:
Magistrate Court rules:
Latest revisions to rule 9(9) (a) and (b) allow for parties to correspond via email
Supreme Court of Appeal
Can use email or e-filing, but the original (printed) must follow within 10 days
In the notice of motion you can specify that you are going to use email, and offer the email address for all correspondence.
To facilitate international correspondence, email and e-filing are being used. When deciding to use e-filing it is often referred to as the “Cooke-Infology” clause.
One Liner: For large volume litigation management BriefCase should be used, but for small litigation management there is no reason why Adobe PDF could not be used with great results.
Mr Lungile Dukwana
CIPRO and e-justice
We had an overview on what the CIPRO office has achieved in the last 10 or so years, and how they currently do all of the enquiries and business through their external facing web site.
One Liner: They should look at other portals to see how far they are off target in an effective e-business site (author).
Protection of personal information legislation
Mark Heyink discussed pending protection of personal information legislation, focusing on the conditions for lawful processing of personal information. He pointed out that compliance with the proposed legislation would require any organisation processing personal information to focus on its information governance, information management and information security. He stressed the importance of information security in light of the duty to report breaches of personal information to data subjects and the potential liability issues arising from both the Bill once enacted, and other legislation for instance the Companies Act, Consumer Protection Act etc.
In dealing with e-filing Mark pointed out that internationally e-filing is increasingly accepted, encouraged and implemented. The fact is that South Africa, and in particular the Department of Justice and the Law Society, have fallen way behind developments in this area globally. He also pointed out that efforts have been made to pilot e-filing projects, however, these have failed to find support with important role players, who appear to have simply lacked the political will to progress these projects.
Discussion on Electronic service of pleadings
Hosted by Mark Heyink
• Constitution right of Access to Courts becoming a reality
• Justice being enhanced by better control and elimination of corruption
• No lost dockets and files
• Unnecessary delays being eliminated
• Prohibitive costs being significantly reduced
• An SA company with a strong base in the SA legal community investigated matter thoroughly
• Invested significant sums of money in the investigation
• Sought the alliance of largest provider of e-filing globally
• Offered to run pilots free of charge and with no favours
• Actively engaged with the legal community, Rules Board and Department of Justice to champion e-filing
• Launched a court application with the knowledge of all interested parties to clarify legal status of electronic communication
• Despite express agreement interested parties oppose the application
• The opposition is spurious and self serving
• When later engaged agree to co-operate but simply don?t
• Destroyed modern machinery to protect jobs and halt progress
• No political will in DOJ, and organised profession to embrace technology
• We fall further and further behind
• The Law and Justice is rendered a joke
• Attorneys criticised for turning a blind eye to Apartheid- we are repeating the blindness.
For further information contact Barend Burgers from Barend Burgers Attorneys on +27 871505212.