- The Johannesburg High Court decided that cellphone records can be used as evidence even if a Vodacom witness does not testify.
- Judges found that cellphone data generated automatically by telecommunications systems is real evidence because it does not involve human intervention.
- This ruling played a key role in upholding the convictions of two men for kidnapping, murdering and stealing from German businessman Uwe Gemballa.
Cellphone records generated automatically by telecommunications networks can be admitted as evidence in criminal trials even when no Vodacom witness is called to authenticate them, the High Court in Johannesburg has ruled.
The judgment was handed down in an appeal brought by Thabo Mohapi and Garlond Holworthy, who challenged their convictions and sentences for the kidnapping, murder and theft of German businessman Uwe Gemballa.
Mohapi and Holworthy were convicted in 2015 of kidnapping, murdering and robbing German businessman Uwe Gemballa and were each sentenced to an effective 25 years' imprisonment. Their appeals against both conviction and sentence were dismissed.
The body of the founder and big boss of the popular Porsche tuner, Gemballa, was found eight months after his disappearance. He was 54 at the time of his disappearance. He had been lured and travelled to South Africa on a business trip related to the opening of a non-existent dealership in Johannesburg.
During their appeal, one of the central issues before the court was whether Vodacom records and RICA documents relied upon by the State should have been excluded because the telecommunications employee expected to authenticate them never testified.
Judge D Dosio, with Judge C Moosa and Judge I Cox agreeing, rejected the challenge and confirmed that the cellphone records were properly admitted and relied upon during the trial.
Arguments over whether evidence should be allowed
The State's case was built largely on circumstantial evidence, including CCTV footage and cellphone records showing the movements and communications of the accused.
Holworthy argued that the State failed to prove the authenticity and correctness of the Vodacom records because it did not call the witness who was expected to verify them. The defence contended that without such authentication, the records remained inadmissible hearsay and could not be used to place the accused at locations linked to the crimes. The court disagreed.
Judge Dosio found that courts do not automatically require a representative from Vodacom, MTN or another cellular provider to testify whenever cellphone records are introduced into evidence. Instead, the crucial question is whether competent evidence establishes how the records were obtained and demonstrates that they are reliable.
The court accepted the evidence of Lieutenant Colonel Schnelle, a specialist in telecommunications investigations, Lieutenant Colonel Neethling, who conducted cellphone tower mapping, and Vodacom engineer Budhia. Their evidence explained how the records were generated, obtained and analysed.
The judges noted there was no suggestion during the trial that the records had been altered, manipulated or tampered with.
How cellphone records are different from other evidence
A significant part of the judgment focused on the legal nature of cellphone records. Judge Dosio considered whether the records should be treated as documentary evidence or real evidence. The distinction was important because documentary evidence often requires proof from a person responsible for creating it, while real evidence depends on proof of reliability.
The court found that cellphone records are created automatically by telecommunications systems and not by human beings. Information such as call times, call duration, tower connections and location data is recorded electronically by computer systems operating within the network.
Because the records are generated without human intervention, the court held that they constitute real evidence rather than hearsay evidence.
Judge Dosio wrote that, “Cellphone records (data generated automatically by a telecommunications system) are admissible as evidence, even without formal authentication by a service provider witness, provided that their reliability, integrity, and method of production are sufficiently established through competent evidence.”
The judgment further noted that the records had been lawfully obtained from Vodacom through statutory investigative procedures and delivered directly to investigators.
Cellphone data showed where the accused were
The records became an important part of the State's case because they tracked the movements of the accused on the day Gemballa arrived in South Africa.
The data placed both appellants at OR Tambo International Airport on the evening of 8 February 2010 and showed communication between them during the relevant period. The records later placed both men in Edenvale near the property where Gemballa was held before his death.
Budhia's evidence showed that one of the cellphones was not merely near the airport but inside the terminal building itself when Gemballa arrived.
The court found that the cellphone records corroborated one another and demonstrated coordinated movements and communications between the accused at crucial times.
Neither appellant testified to explain the cellphone evidence or challenge the communication patterns revealed by the records.
Appeals turned down
Judge Dosio found that the cellphone records had been properly admitted and that the trial court was entitled to rely on them when determining the guilt of the accused.
The judges concluded that the evidence, viewed as a whole, supported the finding that the appellants participated in the kidnapping and murder of Gemballa.
Finding no misdirection by the trial court, the High Court dismissed both appeals and confirmed the convictions and sentences.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
