The discipline of digital forensics requires a combination of skills, qualifications and knowledge in the area of forensic investigation, legal aspects and information technology. The uniqueness of digital evidence makes the adoption of traditional legal approaches problematic. Information technology terminology is currently used interchangeably without any regard to being unambiguous and consistent in relation to legal texts. Many of the information technology terms or concepts have not yet achieved legal recognition. The recognition and standardisation of terminology within a legal context are of the utmost importance to ensure that miscommunication does not occur. To provide clarity or guidance on some of the terms and concepts applicable to digital forensics and for the search and seizure of digital evidence, some of the concepts and terms are reviewed and discussed, using the Criminal Procedure Act 51 of 1977 as a point of departure. Digital evidence is often collected incorrectly and analysed ineffectively or simply overlooked due to the complexities that digital evidence poses to forensic investigators. As with any forensic science, specific regulations, guidelines, principles or procedures should be followed to meet the objectives of investigations and to ensure the accuracy and acceptance of findings. These regulations, guidelines, principles or procedures are discussed within the context of digital forensics: what processes should be followed and how these processes ensure the acceptability of digital evidence. These processes include international principles and standards such as those of the Association of Chiefs of Police Officers and the International Organisation of Standardisation. A summary is also provided of the most influential or best-recognised international (IOS) standards on digital forensics. It is concluded that the originality, reliability, integrity and admissibility of digital evidence should be maintained as follows: Data should not be changed or altered. Original evidence should not be directly examined. Forensically sound duplicates should be created. Digital forensic analyses should be performed by competent persons. Digital forensic analyses should adhere to relevant local legal requirements. Audit trails should exist consisting of all required documents and actions. The chain of custody should be protected. Processes and procedures should be proper, while recognised and accepted by the industry. If the ACPO (1997) principles and ISO/IEC 27043 and 27037 Standards are followed as a forensic framework, then digital forensic investigators should follow these standards as a legal framework.
Purpose The purpose of this paper is to critically analyse and discuss the identification of a generic investigation process to be followed by the commercial forensic practitioner in South Africa. Design/methodology/approach This paper is a cross-sectional design that commenced with a review of the current available literature, highlighting the different approaches, processes and best practices used in local and international forensic practices. The methodology includes primary data collected with questionnaires from commercial forensic practitioner (N = 75) process users. Findings This paper identifies the following five distinct categories in the forensic investigation process, with sub-processes, namely, initiation, planning, execution, reporting and reflection. Research limitations/implications The study focuses only on the South African members of the Institute of Commercial Forensic Practitioners (ICFP) fraternity in South Africa as the ICFP is a leading body that, through membership, offers a recognised professional qualification in commercial forensics. Practical implications An investigation process for commercial forensic practitioners in South Africa could be used by the ICFP that would provide a governance structure for the ICFP. Originality/value The originality of this paper lies in setting out of an account of forensic accounting processes and best practices nationally and internationally. The missing knowledge is that no such research is known to have been conducted in South Africa. Currently, to the authors’ knowledge, no formalised investigation process exists. The contribution of the study is that by using an investigation process, it may enhance the quality of forensic investigations and contribute to the successful investigation and prosecution of commercial crime in South Africa that will be beneficial to all stakeholders.
Purpose The purpose of this paper is to critically analyse the extent of protection available for whistleblowers in South African criminal cases. Design/methodology/approach This paper first provides a brief background of crime in South Africa and argues that the concept of the whistleblower is just a buss word or collective noun. The methodology of this paper consists of a literature review of whistleblowers and relevant laws that can be used to protect whistleblowers in South African criminal cases. Findings This paper concludes that the existing law as primarily contained in the Criminal Procedure Act 51 of 1977 provides appropriate protection for whistleblowers in South African criminal cases. Research limitations/implications Whistleblowers provide information on criminal, civil and disciplinary wrongdoings. This study focuses on the protection of whistleblowers pursuant to mainly the provisions of the Criminal Procedure Act 51 of 1977. Originality/value The originality of this paper lies in the approach to the handling of whistleblowers in South African criminal cases. This is the first research done with the emphasis on the use of mainly the provisions of the Criminal Procedure Act 51 of 1977 to protect whistleblowers in South African criminal cases. The contribution of the study is that, by using this approach, it can provide protection and save lives, and it may enhance the willingness of whistleblowers to blow the whistle, which will be beneficial to the community of South Africa as a whole.
Purpose The purpose of this paper is to identify and discuss impediments in the compilation of an application for a search and seizure warrant for digital evidence and the structure of such a warrant in South African criminal cases. Design/methodology/approach This paper provides a brief overview of international and local impediments, followed by a detailed discussion of the implications of these impediments and how it is approached in various jurisdictions. The methodology of this paper consists of a literature review. Findings Addressing the impediments in the compilation of the application and the warrant will be beneficial for forensic investigators, the South African Police Service (SAPS) and the administration of justice in South Africa. Research limitations/implications Search and seizures for digital evidence form part of civil, regulatory and criminal search and seizures. This study focuses on the search and seizure of digital evidence in criminal matters pursuant to mainly the provisions of the Criminal Procedure Act 51 of 1977 and the Cybercrimes Act 19 of 2020. Originality/value The originality of this paper lies in the approach to the drafting of applications for search and seizure warrants for digital information in South Africa. The contribution of the study is that, by using this approach, the SAPS can address the impediments during the application and compilation of the warrants, which would enhance the quality of investigations and contribute to the successful investigation and prosecution of crime in South Africa.
Purpose This paper aims to identify impediments, discuss impediments and make recommendations for the impediments during the execution of a search and seizure warrant for digital evidence in South African criminal cases. Design/methodology/approach The discussion of this article, the second article of two, focuses on a literature review of international and local impediments identified in case law and published research literature and how it is approached in various jurisdictions. Findings This study found that impediments identified and addressed internationally during the execution of a search and seizure warrant for digital evidence are relevant to South African criminal cases and still need to be addressed during the execution of a search and seizure warrant for digital evidence in South African criminal cases. Research limitations/implications Although searches and seizures for digital evidence are relevant to civil, regulatory and criminal investigations, this study focuses on the search and seizure for digital evidence in criminal matters with an emphasis on the provisions of the Criminal Procedure Act 51 of 1977 and the Cybercrimes Act 19 of 2020. Originality/value The originality of this paper lies in the procedures followed during the physical search and seizure of digital information during the execution of search and seizure warrants for digital information in South Africa. If the South African Police Service follows the recommended procedures, it will contribute to the success of the South African Police Service, which would result in the improved quality of investigations and successful prosecution of crime in South Africa.
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