Salzmann: Siegfried Ernst v The State

On 7 June 2004, a cyber-attack was launched against Cell C's computer network, disconnecting approximately 80% of it. The appellant, who had been employed by Cell C as an IT Remote Access System Administrator until three weeks prior, was charged with contraventions of section 86 of the Electronic Communications and Transactions Act 25 of 2002 (ECT Act). The trial commenced on 29 October 2005 in the Specialised Commercial Crimes Court, Johannesburg. On 14 January 2015, the appellant was convicted on count 1 (unlawfully accessing Cell C's computer network without authority under s 86(1)) and count 3 (unlawfully modifying, altering or destroying data causing partial network failure under s 86(5)), but acquitted on a third charge. On 17 August 2015, he was sentenced to a fine or 12 months' imprisonment on count 1 and three years' imprisonment on count 3. The Gauteng High Court dismissed his appeal on 9 March 2017. The high court granted leave to appeal to the SCA on 5 June 2018. Evidence showed that a dial-up connection from the appellant's home computer using credentials of a Cell C employee (T Walter) was made at the time of the attack. The appellant claimed his wife accidentally accessed the system, but did not call her as a witness. The trial took 11 years from first appearance to sentencing.

• Whether the high court had jurisdiction to grant special leave to appeal to the Supreme Court of Appeal under the Superior Courts Act 10 of 2013
• Whether section 52 of the Superior Courts Act applied to deem the proceedings 'pending' for purposes of applying the Supreme Court Act 59 of 1959
• Whether special leave to appeal should be granted on conviction
• Whether special leave to appeal should be granted on sentence
• Whether the sentence imposed was vitiated by misdirection
• Whether inordinate delay in trial proceedings should be a substantial mitigating factor

1. The appellant's failure to timeously apply to this court for special leave to appeal is condoned. 2. The application for special leave to appeal is dismissed. 3. The matter is struck from the roll.

Under the Superior Courts Act 10 of 2013, which came into effect on 23 August 2013: (1) Special leave to appeal from a decision of a high court sitting as a court of appeal must be granted by the Supreme Court of Appeal under section 16(1)(b), not by the high court itself. (2) Section 52(2) deems proceedings to be pending if at the commencement of the Act a summons had been issued but judgment had not been passed. (3) Trial proceedings are separate and distinct from subsequent appeal proceedings. Once judgment is passed in the trial, those proceedings are no longer 'pending' and subsequent fresh proceedings (such as applications for leave to appeal) are not deemed pending under section 52. (4) The decision in Van Wyk v S correctly held that jurisdiction to grant special leave vests in the SCA, not the high court, even where the original trial commenced under the Supreme Court Act regime. (5) Special leave requires more than reasonable prospects of success - it requires special circumstances such as a substantial point of law, great public importance, or prospects of success so strong that refusal would result in manifest denial of justice.

The majority made observations regarding the seriousness of cybercrime offences and their impact, noting that hacking invades privacy which the law protects, and can have far-reaching consequences. The majority commented that companies entrust employees with serious and classified secrets and such trust should not be breached. The dissenting judgments made significant obiter observations on sentencing principles: (1) Courts must not sacrifice offenders on the altar of deterrence, and an insensitively censorious attitude is to be avoided. (2) The right to trial without unreasonable delay under section 35(3)(d) applies equally to accused persons on bail and those in custody. (3) Accused persons suffer social prejudice, invasions of liberty, and emotional trauma during protracted proceedings even when on bail. (4) An accused person cannot be penalised simply for challenging allegations and exercising their right to plead not guilty. (5) Lack of remorse is not an aggravating factor in South African law. (6) A failure to plead guilty alone is not sufficient to warrant a finding that an offender has no prospects of rehabilitation. (7) Willingness to pay compensation should be considered as evidence of capacity for rehabilitation. (8) The triad of sentencing (crime, offender, and interests of community) must be balanced and sentences must be individualised. (9) Where delay is systemic and not attributable to the accused, it should be a weighty mitigating factor.

This case clarifies the jurisdictional framework for appeals to the Supreme Court of Appeal following the repeal of the Supreme Court Act 59 of 1959 and the commencement of the Superior Courts Act 10 of 2013. It establishes that section 52(2) of the Superior Courts Act, which deems proceedings pending if a summons has been issued but judgment has not been passed, applies only until judgment is given in those proceedings. Subsequent appeal proceedings are separate and must comply with the Superior Courts Act, requiring special leave from the SCA itself under section 16(1)(b), not from the high court. The case also represents one of the first significant prosecutions under the ECT Act for cybercrime/hacking offences in South Africa. The dissenting judgments provide important guidance on sentencing principles, particularly regarding: the constitutional right to trial without unreasonable delay under section 35(3)(d); the prejudice suffered by accused persons during protracted proceedings even when on bail; the improper use of lack of remorse as an aggravating factor; and the need to individualise sentences rather than sacrifice offenders on the altar of deterrence.