Abstract
The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence – with a view to providing clear, practical suggestions for regulatory reform in the context of the South African Law Reform Commission's most recent Discussion Paper on electronic evidence.
 Technology has become an indispensable part of modern life. In particular, the internet has facilitated new forms of business enterprise, and shifted basic communication norms. From a legal perspective, technology has presented several novel challenges for courts and practitioners to deal with – one of these key challenges relates to electronic evidence, and in particular, the application of the hearsay rule to the digital environment.
 The South African Law Reform Commission has identified the application of the hearsay rule as one of the core concerns with regard to electronic evidence and certain academic analysis has revealed inefficiency with the current legal position which may involve multiple sources of law. Moreover, the Law Society of South Africa has stated that there is some confusion amongst members of the profession in relation to hearsay as it applies to electronic evidence.
 With the pervasive and burgeoning nature of technology and the internet in mind, it is natural to assume that electronic evidence will be relevant in most forms of legal proceedings in the future, and hearsay electronic evidence in particular will play an increasingly important role in years to come.
 Consequently, this two-part article will seek to summarise and comment on the proposed anomaly with regard to the key definition insofar as electronic evidence is concerned – data messages – and discuss how the proposed version of the Cybercrimes and Cybersecurity Bill (B6-2017), read together with Electronic Communications and Transactions Act No. 25 of 2002 (ECT Act) will leave South Africa with conflicting definitions of this term. 
 Further, this article will analyse whether electronic evidence (data messages) can constitute hearsay within the meaning of section 3 of the Law of Evidence Amendment Act 45 of 1988; examine whether section 15 of the ECT Act should liberate electronic evidence from hearsay considerations; consider how real electronic evidence should be treated (as opposed to documentary hearsay evidence); consider the interaction of the statutory exceptions to the hearsay rule in the context of electronic evidence; analyse several analogous foreign jurisdictions – and consider how these jurisdictions treat hearsay electronic evidence; and finally, to conclude with several suggestions for law reform in the context of the SA Law Reform Commission Discussion Paper 131 Review of the Law of Evidence (2014).
Highlights
The definition29 above should survive short- to medium-term technological development, and is concise and detailed enough without including superfluous terms, or including conditions that do not apply to traditional evidence.30. It is consistent with the proposals put forward by the SALRC31 where it recommends that: There is clearly concern around the inclusion of the term - voice, where the voice is used in an automated transaction - in the definition of data message, and there do not appear to be compelling reasons to retain the term in the definition
The South African law of evidence is not codified in one single statute
Societies' increasing reliance on technology means that electronic evidence will become increasingly important
Summary
Technology has become an indispensable part of modern life. In particular, the Internet has facilitated new forms of business enterprise and shifted basic communication norms. With the proliferation of technology involved in day-to-day life, the only reasonable inference one can draw is that electronic evidence will play an increasingly important role in most forms of legal proceedings – both and in the future. With the proliferation of technology involved in day-to-day life, the only reasonable inference one can draw is that electronic evidence will play an increasingly important role in most forms of legal proceedings – both and in the future. According to the South African Law Reform Commission (SALRC), in this context: "the application of the hearsay rule is one of the core concerns with regard to electronic evidence".5. In order to provide clear and practical suggestions, this twopart article will review the applicable regulatory environment governing hearsay electronic evidence in South Africa, and conclude with suggestions for law reform in the context of recommendations put forward by the SALRC (while considering selected foreign jurisdictions – those of the United Kingdom, Canada and the United States, where electronic evidence has had more time to mature and develop).. Part one of this article will consider the key definitional concept in relation to electronic evidence – data messages - and examine whether the definition should be revised. In addition, part-one of this article will answer two further critical questions posed by the SALRC in relation to data messages and hearsay evidence, namely: should a data message constitute hearsay?11 And, how should one distinguish between documentary evidence and real evidence in the context of data messages?12
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