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Gauteng Hawks head Maj-Gen Ebrahim Kadwa has no choice but to give the police access to his phone, which he says contains state secrets, after suffering yet another blow in his legal challenge to block the state from accessing information on it.The high court in Johannesburg last week dismissed Kadwa’s application for leave to appeal to the Supreme Court of Appeal against a judgment that dismissed the court bid to have his phone returned.The phone was seized by police in May during Kadwa’s arrest in a case related to a breach of the Precious Metals Act and a charge of defeating and obstructing the course of justice.The state intends to give the Madlanga commission inquiry evidence obtained from the phone. In order to stop the state from accessing his phone, Kadwa now has to seek special leave to appeal directly to the Supreme Court of Appeal (SCA). Kadwa’s co-accused, crime intelligence boss Maj-Gen Feroz Khan’s phone was seized the same day of his arrest on May 10 and evidence, including links to alleged tender scandals, has since been publicly displayed at the Madlanga commission. Kadwa’s main contention in the litigation ― against police minister Firoz Cachalia, investigating officer Calvin Khorommbi and the Madlanga commission ― was that the phone was taken without a seizure warrant and therefore was unlawful. Acting Johannesburg high court judge Bruce Leech, however, found the Criminal Procedure Act allows the police to seize an article when suspecting it could have been used in the commission of a crime — even when they do not have a seizure warrant. The police had an arrest warrant. In dismissing the appeal application, Leech said Kadwa has no reasonable prospects of success that the SCA could find the phone was seized unlawfully by the police. “There is nothing before me to suggest that the appeal would have a reasonable prospect of success and there is no other compelling reason why the appeal should be heard, including no conflicting judgments on the matter under consideration. In the circumstances, the application brought by the applicant falls to be dismissed,” Leech found. The evidence showed police brought themselves within the ambit of section 23 of the Criminal Procedure Act, he said, finding that the seizure of the applicant’s mobile telephone was lawful. Kadwa has the option to file a special appeal directly to the SCA to block police from accessing the phone. He has not yet served the state with papers indicating that he will do so. Without an appeal the phone seizure remains lawful. The police, during the litigation, threatened to criminally charge Kadwa, arguing that he refused to give them the passwords to access the phone after they had obtained a cybercrime warrant on May 20. This was days before he initiated the application. State attorney letter threatening to criminally charge Maj-Gen Ebrahim Kadwa. Picture: (Screens) Kadwa argued he was served with the warrant after the police were issued with the urgent application and challenged the effect of the cybercrime warrant pending the litigation in the high court. The Cybercrimes Act states that any person who hinders a police official or who refuses to comply with a search warrant is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years or to both a fine and imprisonment.
