That is one of the submissions which will be made in the High Court, Johannesburg division, sitting in Palm Ridge south of Johannesburg, on Thursday.
The June application to access O’Sullivan’s and Ximba’s cell phone records was made by the defence team of Czech fugitive Radovan Krejcir, Sandton businessman Desai Luphondo, former East Rand Organised Crime Unit warrant officers Samuel “Saddam” Maropeng, George Nthoroane and Jan Mofokeng, and Siboniso Miya.
The six are on trial for kidnapping, attempted murder, and dealing in drugs.
Hidden somewhere in an office of the High Court, O’Sullivan and Ximba’s phone records have been gathering dust after a successful interdict by the two to prevent their cellphone records falling into Krejcir’s hands.
The records of the two were handed over by network providers MTN and Vodacom after being subpoenaed to do so by Krejcir’s defense team.
Krejcir is also arguing the accused’s rights to a fair trial overshadows any right to privacy and that by not indicting MTN and Vodacom, the application to block the handover of information failed.
O’Sullivan is not having any of it, saying in papers filed in the High Court the information sought by Krejcir was ‘extremely personal and private and potentially life threatening…’.
How protected are you?
All companies are required to keep and handover records of users when subpoenaed by a court.
Personal information is ‘information which identifies you as an individual, such as your first and last name, your ID number, your phone number, credit vetting and payment information, your preferences and opinions’
It includes your ‘race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of that person’ and much more.
When you sign your MTN contract, it is also allowed to share all the data it has mined from with its third party companies.
Vodacom’s policy is less forbidding and perhaps more vague.
It does state it will monitoring and record your calls, e-mails or SMS’s ‘for business purposes to the extent permitted by law, such as for example quality control, detecting fraud and training for the purposes of marketing and improving the Services’.
However, its website goes on to assure you that in these situations ‘we will not disclose information that could be used to personally identify you’.
Hidden under a “throwdown” link not visible on its homepage, a Google search was required to find the very short policy that basically states Cell C ‘may collect, maintain, save, compile, share, disclose and sell any information collected from users’ subject of course to certain provisions.
These include not disclosing personal information without your consent unless through a due legal process. It also states it can ‘compile, use and share any information that does not relate to any specific individual’.