An Analysis of the Regulatory Environment Governing Hearsay Electronic Evidence in South Africa: Suggestions for Reform – Part Two

Lee Swales

doi:10.17159/1727-3781/2018/v21i0a4496

Abstract

The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence in South Africa with a view to suggesting law reform in the light of the most recent proposals put forward by the South African Law Reform Commission. Part one considered the definition of data messages in the context of hearsay electronic evidence and concluded that amendment is required (as suggested by the South African Law Reform Commission). Further, part one sought to answer two additional queries posed in Discussion Paper 131 Review of the Law of Evidence in relation to electronic hearsay, ultimately finding that a data message can constitute hearsay within the meaning of the applicable legislation; further, that South African law must distinguish between data messages produced substantially by a computer or mechanical process and those that rely substantially on the credibility of a person. Part two of this article will review the statutory exceptions to the hearsay rules applicable to electronic evidence, including the controversial section 15(4) of the Electronic Communications and Transactions Act 25 of 2002. Further, part two will analyse the situation in selected foreign jurisdictions where hearsay electronic evidence has had more time to mature and develop (United Kingdom, Canada and United States) with a view to incorporating suggestions that South Africa can implement. Finally, this article will conclude by providing suggestions for law reform in the context of the recommendations put forward by the South African Law Reform Commission, and will suggest that that there must be law reform in at least the following areas: the definition of data messages; the definition of the term document in the statutes applicable to the hearsay exceptions; a distinction between types of electronic evidence insofar as computer-generated evidence with human intervention, and without human intervention is concerned; and more cohesion and alignment with the statutory hearsay exceptions.

Highlights

Part one considered the definition of data messages in the context of hearsay electronic evidence and concluded that amendment is required
Part one sought to answer two additional queries posed in Discussion Paper 131 Review of the Law of Evidence in relation to electronic hearsay, finding that a data message can constitute hearsay within the meaning of the applicable legislation; further, that South African law must distinguish between data messages produced substantially by a computer or mechanical process and those that rely substantially on the credibility of a person
Part one[4] of this two-part article examined the regulatory framework governing hearsay electronic evidence in South Africa and sought to answer three critical questions posed by the South African Law Reform Commission (SALRC):[5] should the definition of data messages be revised?6 Should a data message constitute hearsay?7 And, how should one distinguish between documentary evidence and real evidence in the context of data messages

Summary

Introduction

Given the enormous increase in internet penetration in South Africa[1] and our society's apparent increasing reliance on technology,[2] it is reasonable to infer that the use of data messages[3] as evidence in all forms of legal proceedings will continue to increase.Part one[4] of this two-part article examined the regulatory framework governing hearsay electronic evidence in South Africa and sought to answer three critical questions posed by the South African Law Reform Commission (SALRC):[5] should the definition of data messages be revised?6 Should a data message constitute hearsay?7 And, how should one distinguish between documentary evidence and real evidence in the context of data messages?8Part two will seek to complete this discussion by reviewing the statutory exceptions to the hearsay rules applicable to electronic evidence, including the controversial[9] section 15(4) of the Electronic Communications and Transactions Act 25 of 2002 (the ECT Act). Part one[4] of this two-part article examined the regulatory framework governing hearsay electronic evidence in South Africa and sought to answer three critical questions posed by the South African Law Reform Commission (SALRC):[5] should the definition of data messages be revised?6 Should a data message constitute hearsay?7 And, how should one distinguish between documentary evidence and real evidence in the context of data messages?8. This article will conclude by Communications and Transactions Act 25 of 2002 (the ECT Act) definition of data message should be revised; issue 6 considers s 15 of the ECT Act and the hearsay rules in the context of electronic evidence; and issue 7 considers whether there should be a distinction between different types of electronic evidence. See SALRC Issue Paper 27 7-49. 6 SALRC Discussion Paper 131 52-55; Swales 2018 PELJ 3-5. 7 SALRC Discussion Paper 131 62-68; Swales 2018 PELJ 8-14. 8 SALRC Discussion Paper 131 68-70; Swales 2018 PELJ 14-23. 9 LA Consortium & Vending CC t/a LA Enterprises v MTN Service Provider (Pty) Ltd In re: MTN Service Provider (Pty) Ltd v La Consortium & Vending CC t/a LA Enterprises 2011 4 SA 577 (GSJ) para 12.

Methods

Discussion

Conclusion