(b) Exposition of comment

3.4 The Banking Association South Africa agreed that electronic evidence, such as data messages, should not be exempt from the hearsay rule and that the question of the production and admissibility of automated electronic evidence should be clarified.

3.5 The Law Society of South Africa recognises that there is some confusion amongst members of the profession in relation to:

· hearsay as it applies to electronic evidence;

· the authentication of electronic evidence;

· the admissibility of business records in terms of Section 15(4) of the ECT Act;

· the interaction between (and applicability of) the various laws that regulate exceptions to the hearsay rule; and

· obtaining and producing electronic evidence.

3.6 Mark Heyink notes that in dealing with the issue of hearsay evidence, what must be understood is that from the perspective of electronic evidence, initially all evidence emanating from a computer was regarded as hearsay evidence. Judgments in this regard led to practical difficulties relating to electronic evidence. This motivated the drafting of the Computer Evidence Act, the provisions of which, while possibly being workable in the context of a computer in a computer room with a ‘white-coated’ programmer being able to provide evidence, became redundant immediately computers became networked. Even at the time that the Computer Evidence Act was promulgated its application was extremely limited and would be regarded as absolutely absurd in the interconnected world. This has been remedied by the repeal of that Act in the Electronic Communications and Transactions Act (‘ECT Act’).

3.7 He notes that the ECT Act (particularly Chapter III which defines the legal requirements of data messages) is materially identical in form to the Electronic Commerce Model Law on Electronic Commerce, which is the basis of the development of legislation relating to the admission of electronic records in many jurisdictions globally. The interpretation that normal rules of hearsay, governing the exclusion of evidence based on the credibility of another who is not ‘in court’ and capable of being cross-examined, appears from reported cases to have been more than adequately dealt with by our courts to date.

3.8 The Law Society of South Africa submits that the evidentiary provisions in Section 15 of the ECT Act are adequate and do not require any material amendment or replacement by other provisions, save for section 15(4).[69] Concern is expressed that this section may be interpreted to automatically elevate certain data messages to constitute proof of facts in dispute. In addition, it is not clear whether all data messages made by a person in the ordinary course of business require certification, or only copies, printouts or extracts from such data messages.

(c) Evaluation and recommendation

3.9 Electronic evidence is comprised of data that has potential probative value and that is generated, processed, stored on or transmitted by any electronic or digital device. Digital evidence is evidence which has been generated or converted to a numerical format. Electronic evidence comprises of both evidence that has been ‘born digital’ and evidence that has not been ‘not born digital’ but that became digitised during their life-cycle.[70]

3.10 The Sources of electronic evidence in aptly illustrated in Figure I below.

Figure 1: From Sources of Evidence to Electronic Evidence[71]

3.11 Importantly for litigators, the ECT Act provides a simple but powerful procedure for the certification of electronic evidence, making it firstly admissible in evidence and secondly rebuttable proof of the facts it contains. It is simply required that ‘an officer’ in the service of the person who entered or created the data message certifies as correct a data message which is either ‘made by a person in the ordinary course of business’ or which is a copy, printout or extract from such data message in order for such evidence to be best evidence.

3.12 It has been noted that Section 15(4) counters a potential gap in South African law upon the repeal of the Computer Evidence Act 1983[72] any differences between the wording of Section 15 and Article 9 of the UNCITRAL Model Law are stylistic in nature. The intention behind this section is to ensure the admissibility of data messages in legal proceedings, and to establish their evidential value.

3.13 The Johannesburg High Court was asked to consider electronic evidence not certified as correct in terms of the ECT Act, highlighted the value of the certification procedure. In Ndlovu v The Minister of Correctional Services[73] concerned a delictual claim for wrongful imprisonment.[74] Electronic evidence was led regarding parole violations which had been recorded on a computer program by more than one person. The court held that unless the person who entered the data on the computer was called as a witness, the computer printout constituted hearsay evidence. It was also held that data messages must comply with the same requirements as paper-based evidence namely, they must be relevant and otherwise admissible, their authenticity must be proved and the original document must normally be produced (unless it is the best evidence that the party presenting it could reasonably be expected to obtain).

3.14 In addition to the normal rules of evidence, the court applied section 15(3) of the ECT Act which requires it to consider ‘the reliability of the manner in which the data message was generated, stored or communicated... the reliability of the manner in which the integrity of the data message was maintained; the manner in which its originator was identified; and any other relevant factor’.

3.15 The learned judge commented that on his reading of the ECT Act, electronic evidence certified in accordance with Section 15(4) stands as evidence without further qualification unless it is rebutted by the opposing party and in particular, is not required to be assessed in terms of the additional four aspects set out in Section 15(3). While the judge's comments do not form a part of the reasoning for his decision and are accordingly not binding, they do serve to highlight the benefits of the certification procedure. The procedure immediately relieves the party presenting the electronic evidence of a substantial evidential burden and transfers that burden to the opposing party, which is then required to present evidence (if the evidence is to be rebutted).[75]

3.16 The Western Cape High Court recently addressed this issue. In S v Terrance Stephan Brown[76] a trail within a trail was held to determine the admissibility of three photographs that was found of the accused on a phone which was found at the scene of a crime. The admissibility of the photographs would then be used to offer proof, or render it more probable, that the phone, Exhibit 1, on which they were found, belonged to the accused and must have been dropped by him at the scene of the crime.

3.17 The court noted that the ECT Act follows an inclusionary rather than an exclusionary approach to the admission of electronic communications as evidentiary material.[77] The court noted that it agrees with the observation of Gautschi AJ in Ndlovu v Minister of Correctional Services and another[78] that section 15(1)(a) does not render a data message admissible without further ado. The provisions of section 15 certainly do not exclude our common law of evidence. This being the case the admissibility of an electronic communication will depend, to no small extent, on whether it is treated as an object (real evidence) or as a document.[79] The court noted that section 221(5) of the CPA provides that a document includes any device ‘by means of which information is recorded or stored’.[80]

3.18 In Seccombe and others v Attorney-General[81] it was noted that the word document ‘is a very wide term and includes everything that contains the written or pictorial proof of something. It does not matter of what material it is made’.[82] The court in S v Terrance Stephan Brown concurred that graphics, audio and video that are in a data message form should be treated in the same way as documents.[83]

3.19 The court noted that the images at issue were vulnerable to potential mutability and that the transient nature in which images of this nature are generated, stored and transmitted by an electronic device dictates that they should more appropriately be dealt with as documentary evidence rather than ‘real evidence’. The court concurred with the approach followed in S v Ndiki and others[84] where Van Zyl J expressed the view[85] that the first step in considering the admissibility of documentary evidence is to examine the nature of the evidence in issue in order to determine what kind of evidence one was dealing with and what the requirements for its admissibility are.[86]

3.20 The images in question were downloaded from the phone, reproduced in hard copy (paper) form and enlarged. There was no suggestion that either the devices or the software which were used to produce or enlarge the images was unreliable or that he manipulated the data or electronic communication in any way.[87]

3.21 The court then addressed the various other objections to the admissibility of the images raised on behalf of the accused. Firstly, it was contended that the data message or images amounted to hearsay.[88] The court noted that section 3(4) of the Law of Evidence Amendment Act[89], defines hearsay evidence as evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.[90] The court noted that the three images which the State seeks to introduce as evidence are photographs, apparently of the accused, and, subject to proof of his identity and bearing in mind the limited purpose for which they are tendered, their probative value stands or falls by that simple fact.[91] In this sense, at least, the images are more akin to being ‘real evidence’ but, however they are classified, they do not constitute hearsay evidence.[92]

3.22 The integrity of the chain from the time that the phone was allegedly picked up by Cronje to the time that it was handed to the police was also questioned by the counsel for the accused.[93] The court conceded that there was a four hour window period during which any number of persons could have tampered with the phone, but noted that it was a short period of time and there was no evidence that the phone or the images had been tampered with.[94] The court noted that any form of interference or tampering would have to have involved the manipulation of pre-existing images on the phone, a much more unlikely scenario than the placing of such images on the phone in the four hour window period.[95] The court noted that tampering with the images required no small degree of technical skill and that it was important that Linnen’s evidence was that the images in question had been transmitted to the phone on 7 March 2014 was undisputed. The court held that in light of the evidence as a whole it considered the lack of proof of the integrity of the phone for the four hour period as insufficient to justify the exclusion of the evidence. [96]

3.23 The court held that the three images were admissible as evidence.[97] In conclusion the court observed that it is worth noting that the process envisaged by section 15(2)-(3) of the ECT Act, namely to assess the evidentiary weight of the electronic communication sought to be introduced in evidence will only be addressed after all the evidence has been heard.[98]

3.24 One may conclude that the hearsay rule is very much alive, that section 15 did not take away a court’s discretion to determine the evidentiary weight of evidence and that for section 15(4) to apply, and the correct certification procedure should be followed.

3.25 Issue 6: in line with the principle of technological neutrality, the SALRC supports the view that hearsay evidence made by a person in an electronic document should be treated in the same way as hearsay evidence in a paper-based document. On the interaction of the ECT Act with the CPEA, the CPA and the LEAA, the SALRC supports a less fragmented approach to the admissibility of documentary evidence and therefore proposes reform: through amending and supplementing existing provisions.

2. Hearsay and mechanically produced evidence

(a) Background

3.26 Issue 7: Should the ECT Act or other relevant legislation) make a clear distinction between mechanically produced evidence without the intervention of the human mind (akin to real evidence) and mechanically produced evidence with the intervention of the human mind (hearsay)?

(b) Exposition of comment

3.27 The Banking Association South Africa agrees with the proposition by the SALRC to maintain a distinction between automated data messages and data messages ‘made by a person’ and support statutory reform to guide the production and proof of both types of evidence in court.

3.28 The Banking Association South Africa submits that a handbook should be developed that will provide clarity and guidance to legal practitioners and judicial officers on the legal position and advice on technical aspects of producing electronic evidence in court.

3.29 The Law Society of South Africa notes that the Ndlovu case[99] interprets this issue correctly. The correct interpretation of Section 15 allows for the distinction between hearsay and real evidence to be easily made. The purposes of Section 15(1) and (2) do not intend doing away with the hearsay rule but are rather aimed at ensuring that it is not used to disqualify the admission of data messages in evidence. The Law Society of South Africa maintains that sub-section 15(3) of the Act provides a more than adequate balance in dealing with so called ‘real evidence’ in allowing for evidential weight of a data message to be dependent upon ‘the reliability of the manner in which the data message is generated, stored or communicated’. Regardless of the categorisation of the evidence as hearsay or real, the integrity of the evidence is dependent upon the reliability of the computer processing the information.

3.30 Mark Heyink notes that In so far as the distinction between real and documentary evidence is concerned, in the former instance it is accepted that this is information which is generated without human intervention. In the latter instance it is information where the input of the information and its processing is influenced by humans. If the main issue underlying evidence is the integrity of the evidence that is placed before a court, both of these issues are addressed in Section 15(3) of the ECT Act. In the case of direct evidence, it is the reliability of the computer processing the information which has to be evidenced.

3.31 He notes that while the fact is that the computer generates this information without input from a human being, in doing so it is nonetheless ‘acting’ on the instructions of the programmer of the software which initiates this automatic processing. It must be recognised that software is far more complex than purely mechanical solutions that our courts have previously dealt with. It must also be recognised that this programming, although automatic, may fail for various reasons. For instance malware or a virus may influence operation of the software, rendering the automatic processing of supposedly ‘real’ evidence unreliable. Thus, reliability and presumptions of reliability are an important factor in assessing the weight of evidence, whether it is real or documentary. Turning to documentary evidence, again it is submitted that Section 15(3) of the ECT Act adequately deals with this in addressing the assessment of the weight of evidence. The second element of ensuring the integrity of the information processed is properly addressed by this provision.

(c) Evaluation and recommendation

3.32 In certain instances a party will communicate with the world through an automated website which requires a minimum of actual human input, but where the system will automatically generate responses to messages received from customers. For instance a website may be programmed to receive orders which have been electronically completed by customers. Once received, the system will generate an acknowledgment of receipt of the order, check the levels of stock ,check the payment details of the buyer (for instance with the credit card company) and if sufficient stock is available and payment is cleared, generate a message to the dispatch department to send the item to the buyer.

3.33 Human intervention will only take place where the goods are physically removed from the store and sent to the buyer. Where electronic goods are ordered this may not even be necessary as the goods can be sent electronically without human intervention. For instance if you buy software on the Internet, the software is usually sent without any human intervention. In terms of section 20 where electronic agents are used, the offer or acceptance generated by the electronic agent will be regarded as a declaration of will of the party on whose behalf that computer and electronic agent has been programmed.

3.34 An automated transaction therefore is a transaction where one or both of the parties make use of automated systems, i.e. a program that communicates with or responds to third parties without any human intervention. The offer or acceptance is made by the computer program without referring any decision for actual human input. In this case the computer and computer program constitutes an electronic agent. A typographical or grammatical error in section 20(d) should be corrected and section 20 should be reworded so that it can be more easily understood.

3.35 Attribution should also be considered. Attribution concerns whether an electronic event may be related to a person, thus a key issue in the licensing of intellectual property on the Internet. To be more specific, in e-commerce, attribution refers to the manner in which one determines whether a data message (electronic communication) originates from a specific person, or machine (for automated communication systems). Attribution deals with whether a data message was actually sent by the person who is indicated as its originator, and with the circumstances in which one may assume that it actually originated from that person. With a paper-based communication, the problem usually concerns forged signatures, or the unauthorized use of a person’s letterhead. In the e-commerce environment, similar problems may arise. For example, an unauthorized person may have sent a message from another’s e-mail account; or, a person may fraudulently have used another’s authentication code, encryption, or the like.

3.36 ‘Attribution’ should not be confused with ‘authentication’, which term is sometimes as an alternative for ‘electronic signature’.[100] We are addressing the rules and presumptions relating to the attribution of electronic events, but not with the attribution of authenticated messages (such as an advanced electronic signatures).[101]

3.37 Specific rules for the creation, recognition, and control of authentication products and services have been enacted. The legal force of an otherwise attributable message is limited by the formal authentication and certification requirements.[102]

3.38 At common law, where a message or action is sought to be attributed to a person in court, the person who alleges attribution shoulders the burden of proof. A person who wants to produce a document has to prove that it is authentic.[103]

3.39 Whether a person created a document or signed it, or both, is solved by leading the evidence of the maker, the signatory, or the witnesses, and sometimes a handwriting specialist, and of other surrounding circumstances[104] In CRC Engineering (Pty) Ltd v JC Dunbar & Sons (Pty) Ltd[105] the court held that when the authenticity or the execution of a document is put in issue, the burden of proof is on the party seeking to rely on that document, and that she proves such authenticity by calling the person who signed it, or someone who saw her sign it.[106]

3.40 The actions of a machine are normally attributed to the person who instructed or programmed it to perform a specific function (see, for example, the definition of the ‘author’ of a computer-generated work).[107] It has been suggested that where mistakes occur in electronic communications through the malfunction of machines, the party that installed the malfunctioning machine must assume the risk of any defects or delays in the transmission.[108]

3.41 In terms of article 13(1) of the Model Law, a data message is the originator’s if it was sent by her. It is deemed to have been sent by her if it was sent by a person who had the authority to act on her behalf in respect of that data message, or by an information system programmed by, or on behalf of, the originator to operate automatically.[109] An addressee may regard a data message as the originator’s and act on that assumption if the addressee properly applied a procedure previously agreed to by the originator for that purpose (to ascertain whether the data message was the originator’s), or the data message as received by the addressee resulted from the actions of a person whose relationship with the originator or any agent of her agents enabled that person to gain access to a method used by the originator to identify data messages as her own.

3.42 Paragraph (3) does not apply as of the time when the addressee has received notice from the originator that the data message is not hers, and has reasonable time to act accordingly; or, in the second instance in paragraph (3), at any time when the addressee knew or should have known, had it exercised reasonable care or used any agreed procedure, that the data message was not the originator’s.[110] It will be very difficult to know that the notice is actually from the originator if the authentication procedure did not work properly vis-á-vis the previous message.[111]

3.43 Where a data message is the originator’s, or deemed to be hers, or the addressee is entitled to act on that assumption, then, as between the originator and the addressee, the addressee may regard the data message as received as being what the originator intended to send, and to act on that assumption. The addressee may not do so when she knew or should have known, had she exercised reasonable care or used any agreed procedure that the transmission resulted in any error in the data message as received.[112] Paragraph (5) has been interpreted as a rule relating to mistake or error in the electronic environment that conflicts with national laws. The addressee may rely on an electronic record as long as she acts in good faith and is unaware of any mistake.[113]

3.44 The purpose of article 13 is not to assign responsibility. Rather, it deals with the attribution of data messages by establishing a presumption that under certain circumstances a data message is considered to be as the originator’s, and qualifies that presumption where the addressee knew or ought to have known that the data message was not the originator’s. Earlier drafts of the Model Law contained an additional provision to the effect that the attribution of authorship of a data message to the originator should not interfere with the legal consequences of that message, which should be determined by other applicable national law. It was later felt that it was not necessary to express that principle in the Model Law but that it should be mentioned in the Guide.

3.45 Some countries have adopted article 13 in national law. They include Bermuda[114] Mauritius[115] the Philippines[116] and Singapore.[117] Countries that have rejected the Model Law approach have done so because mainly because article 13 creates rules that conflict with the principle of functional equivalence. Their approaches range from making no provision for on attribution to adopting a limited version of article 13.

3.46 The ECT is in line with international best practices as far as attribution is concerned. Section 25 states that a data message is the originator’s if it was sent by

· the originator personally;

· a person who had authority to act on the originator’s behalf in respect of that data message; or

· an information system programmed by or on behalf of the originator to operate automatically, unless it is proved that the information system did not properly execute such programming.

We support this approach for several reasons.

3.47 It is in line with our common law.

· The principle of functional equivalence dictates this: it will be wrong to adopt rules that create disparity between paper-based and electronic-based transactions.

· International best practices dictate it.

· The standards and allocation of risk adopted in article 13 have their origin in a provision relating to another, more specialized type of electronic communication – article 5 of the UNCITRAL Model Law on International Credit Transfers, which defines the obligations of the sender of a payment order.

3.48 This Model Law drew substantially on the attribution procedures in article 4A of the Uniform Commercial Code relating to fund transfers. These standards were developed in the specialized context of high-value electronic fund transfers. This is perhaps the main reason why the provisions of article 13 have not been accepted or adopted universally.

3.49 The final phrase in Section 25(c) ‘ … unless it is proved that the information system did not properly execute such programming’ was inserted when the ECT Act was being considered before the Portfolio Committee on Communications, and can possibly be viewed as a helpful but strictly unnecessary reference to the rebuttable nature of these provisions.[118] Similarly, had the person referred to in Section 25(a) not personally transmitted the data message, or had the person referred to in Section 25(b) not been appropriately authorized to act on behalf of the originator (and subject to the rules associated with estoppel), that originator will be able to lead evidence of such fraud, and should be able to prove any agreement concluded on the basis of such misrepresentation void ad initio.[119]

3.50 Issue 7: the SALRC supports the maintenance of a distinction between automated data messages and data messages ‘made by a person’ and proposes statutory reform (see Annexure A) to guide the production and proof of both types of evidence in court.

3.4. In addition, the SALRC supports the development of a handbook or a Guide on obtaining and producing electronic evidence that will provide clarity, to practitioners and judicial officers, on the legal position and advice on technical aspects of producing electronic evidence in court to avoid unnecessary confusion.

3. Authentication of electronic evidence

(a) Background

3.51 Issue 8: Is a review of the principle of authentication necessary in view of the nature and characteristics of electronic evidence that raise legitimate concerns about its accuracy and authenticity?

(b) Exposition of comment

3.52 The Banking Association South Africa notes that whilst Section 15(3) of the ECT Act provides valuable guidelines for assessing the evidential weight of a data message, it sees value in statutory reform as there may be growing uncertainty with technological advances regarding certain aspects addressed/or not addressed in the ECT Act.

3.53 The Banking Association South Africa submits that reform along the lines as suggested by the SALRC will go a long way to achieve clearer articulation of both statutory and non-statutory guidelines for the authentication and weight of documentary evidence, including electronic evidence. We support the repeal of existing provisions and the introduction of a unitary statute containing provisions articulated in clauses 7 and 8 of Annexure A of the paper.

3.54 The Law Society of South Africa is of the opinion that a review is not necessary at present, and that the Court should be allowed to test the aspect of authenticity further.

(c) Evaluation and recommendation

3.55 Issue 8: the SALRC supports the clearer articulation of both statutory and non-statutory (in the form of a handbook/manual) guidelines for the authentication (and weight) of documentary evidence, in particular electronic evidence, and in addition proposes that the court be expressly vested with the discretion to exclude unfairly prejudicial evidence.

3.56 The SALRC proposes reform through amending and supplementing existing provisions such as those articulated in clauses 7 and 8 of Annexure A.

4. Admissibility of business records

(a) Background

3.57 Issue 9:The admissibility of business records:

· Should section 15(4) be reviewed to give a restrictive interpretation to the words ‘in the ordinary course of business’?

· Should section 15(4) as applicable in criminal cases be reviewed in view of the current Jaw on reverse onus provisions?

(b) Exposition of comment

3.58 The Banking Association South Africa supports the repeal of Section 15(4) and the provision of legislative amendments that will provide for the admissibility of business records. The Banking Association South Africa also supports the introduction of a unitary statute to regulate documentary evidence or hearsay and documentary evidence. The Banking Association South Africa is of the opinion that certificates may well be used to confirm business records as hearsay or otherwise.

3.59 The Law Society of South Africa is of the opinion that the proposed amendment would do away with a special statutory dispensation for business records only. The following alternative formulation of Section 15(4) is suggested: A data record adduced by a person, or a copy or printout of or an extract from such data record, certified to be correct by that person or by another person duly authorised by the adducer to do so, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self- regulatory organisation or any other law or the common law, admissible as rebuttable evidence of the information contained in such record, copy, printout or extract.

(c) Evaluation and recommendation

3.60 The SALRC proposes reform through amending and supplementing existing provisions of the ECT Act (see in particular clause 6 of Annexure A).

5. Presumptions for mechanical devices

(a) Background

3.61 Issue 10: A presumption of regularity:

· In the Discussion Paper the SALRC provisionally recommended that the law of evidence should not prescribe a presumption of regularity in relation to mechanical devices but should include, in civil proceedings, a limited presumption (placing an evidential burden on the other party who did not object on notice). The question remains whether the law of evidence should prescribe a presumption of regularity in relation to mechanical devices (involving automated operations such as speedometers and breath-testing devices).

(b) Exposition of comment

3.62 Mark Heyink agrees with the SALRC recommendation for the most part. However, he notes that this recommendation fails to take into consideration the presumptions which should apply in uncontested matters. He notes that the practicalities of the administration of justice demand that certain “presumptions of reliability” and “presumptions of regularity” are recognised.

3.63 The LSSA draws attention to the persuasive judgment in the matter of the Trustees for the time being of the Delsheray Trust and Others (as appellants) and Absa Bank Limited (as respondent).[120]

3.64 The LSSA notes that although the judges dealt with the common-law as opposed to the provisions of the ECT Act, the comments of the learned judges are particularly pertinent to the assessment of the weight of evidence in terms of Section 15(3)(a) being the reliability of the manner in which the data message was generated, stored or communicated.[121] In this regard, the judges indicate that generally the presumption of reliability has not been applied in South African law under that name but that the underlying principles of the presumption are established in our law. It exists by virtue of the doctrine of judicial notice and that these principles are firmly established in our law.

3.65 The judges quote Corbett JA in the matter of the State v Mthimkulu,[122] where Corbett noted “The extent to which the court will insist upon, or relax, the standards of proof which theoretically apply when evidence involving the use of scientific instruments is presented to it will very much depend upon (a) the nature of the process and the instrument involved in the particular case, (b) the extent, if any, to which the evidence is challenged, and (c) the nature of the enquiry and the facta probanda in the case. No hard and fast rule can, or should, be laid down. Much will depend on the facts and circumstances of each individual matter.”[123]

3.66 The LLSA notes that considering the complexity of computers and at this stage the relevant ignorance of most lawyers and jurists as to the workings of a computer, the wisdom of Corbett JA (even though the matter was decided in 1974) resonates today.

3.67 The LSSA notes that judicial notice is to a large degree subjective and may vary from judge to judge. However, one of the overriding issues that needs to be considered in the interests of the administration of justice is that, when evidence is not challenged and there are no clear reasons to doubt the evidence which is put before the court, judicial officers should presume reliability.

3.68 In its consideration of the facts, the learned judges referred to an extract from Ex Parte Rosch:[124] a court would be failing in its duty if it ignored the realities of modern science and technologies in the production of evidence. In 1997 courts are entitled to accept that computers are ubiquitous in the society in which we live. The process by which these instruments record and print information is no less commonplace than the operation of motor vehicles and cameras. It is not necessary that there should be evidence as to how each computer works as a prerequisite to the admissibility of evidence produced by such computer, if what has been produced has been done so automatically.”[125]

3.69 The LLSA notes that the sentiments expressed in this judgment are trite and should be even more compelling in our world some 18 years after the judgment was delivered. However, the LSSA cautions that sight must not be lost of the fact that there are continuous and rapid developments in technologies and their use. Sometimes these developments are not necessarily matched by the safeguards of the integrity of information which may be processed.

3.70The learned judges in the Delsheray case then go on to base the presumption of reliability on four factors. The first of these is credence given to a large commercial bank in the assumption that its computer systems are as sophisticated as other financial institutions. The LSSA notes that the assumption is more supportive of a presumption of reliability. The second factor is the employment of appropriate personnel filling the responsibility to ensure operation of the computer system is “proper”. The LSSA notes that these are issues which are based on information security principles and the same presumptions as apply to the first factor would be more appropriate.

3.71 The third factor relates to the nature of the evidence itself. In this regard, whether the evidence is challenged or not is a critical determinant. It is however submitted that in uncontested matters the presumption should be that the person providing a certificate in terms of Section 15(4) has not acted fraudulently.

3.72 The fourth factor is that in this matter the respondent’s computer records with respect to the account in dispute are accessible to the client. This is an important determinant as in the majority of cases (certainly not all), by virtue of modern technologies, customers or clients generally have an insight into the processing of their information, whether it be personal or financial.[126] Thus obvious errors would in many cases be evident to clients or customers well in advance of any legal action being taken.

3.73 The learned judges go on to deal with the issue of human input as hearsay evidence. They note that this may be overcome by reference to Section 3(1)(c) read with Section 3(4) of the Law of Evidence Amendment Act. The court noted that one of the issues which must be borne in mind is that, by the nature of computer evidence, in many cases the input to records is provided from difference sources. This may result in a plethora of witnesses having to be called if the hearsay rule was strictly applied.

3.74 The LSSA notes that an alternative to the application of the statutory exception of hearsay evidence as referred to above is the “presumption of regularity”. The court has found that this has been applied in our law[127] before and that there is a significant degree of overlap between the “presumption of reliability” and the “presumption of regularity”. On that basis the court found in the particular case that the arguments in favour of the application of the presumption of reliability applied equally to the “presumption of regularity”.

3.75 In conclusion, LSSA notes that the court found that computer-generated information, although it may contain evidence which was input by different parties, was sufficient for a person relying on the accuracy of the records to depose to an affidavit, verifying the information in the records relied upon and enforcing a claim (this matter related to an application for summary judgment and therefore reliance was placed on an affidavit).

3.76 The LSSA notes that with regard to Section 15(4) the provision of a certificate where a matter is uncontested will achieve the same function as an affidavit. Indeed, in this particular instance an affidavit is required in terms of the rules of court as the application was for summary judgment. The same requirement is not necessary in applications for default judgment.

3.77 Legal Aid maintains its previous position, namely that insofar as criminal cases are concerned, a presumption of regularity in respect of speedometers and breath testing devices “would have the effect of placing at the very least an evidential burden on an accused person who would normally not have the resources to meaningfully rebut as it would involve the leading of expert evidence”. For this reason we opposed a presumption of regularity in criminal cases. This remains our position. In any event, the onus is on the state to prove its case beyond a reasonable doubt.

3.78 Legal Aid notes that insofar as civil cases are concerned, if the plaintiff were to give notice in terms of clause 6 of the Draft Bill and the defendant failed to object thereto, or the court dismissed his objection, then in terms of clause 6(4)(b) the document attached to the notice would “be presumed, in the absence of evidence to the contrary, (to be correct in respect of) the nature, origin and contents of the document as shown on its face”. If the defendant were to object, he would have the onus of proving the mechanical device not to have been properly functioning, despite a certificate of calibration provided by the plaintiff. There appears to be no objection thereto.

3.79 Legal Aid reiterates that the threshold requirements would be that the plaintiff would have to attach to his notice a copy of the report generated by the mechanical device concerned. In addition he would have to attach a certificate of calibration and also a certificate of competence in respect of the operator.

(c) Evaluation and recommendation

3.80 Some have proposed the adoption of a presumption of the integrity of a computer. The presumption has a limited scope namely (i) where evidence is adduced supporting the finding that the computer was operating properly, (ii) where the electronic record was recorded or stored by a party who has opposite interest to the party who seeks to introduce it in a proceedings, or (iii) where the electronic record was recorded or stored by whom is not a party to a proceedings or whom did not record or store the electronic record under control of a party seeking to introduce it. In short, such presumption applies where there is evidence on the proper operation of a computer or where there is no conflicting or suspicious interest of the party who seeks to introduce the electronic record in a proceeding.[128]

3.81 This is a sound approach for electronic record systems.

3.82 Issue 10: the SALRC provisional recommends that the law of evidence should not prescribe a presumption of regularity in relation to mechanical devices.

3.83 The SALRC recommends the adoption of a limited presumption (placing an evidential burden on the other party who did not object on notice) in civil proceedings.

3.84 The SALRC recommends the adoption of a limited presumption of integrity for electronic record systems.

3.85 The SALRC further recommends that the question of presumptions receive the attention of a standing committee/working group established in terms of the recommendations of this Report.

6. Admissibility of computer generated evidence

(a) Background

3.86 Issue 11: In general, are the provisions in the ECT Act sufficient to regulate the admissibility of computer generated evidence?

(b) Exposition of comment

3.87 The Banking Association South Africa cautions against a presumption of regularity which includes that ‘in the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time’.

3.88 The Banking Association South Africa agrees with the SALRC recommendation that the question of presumptions should be dealt with by a standing committee/working group to be established in terms of the recommendations of the discussion paper.

3.89 The Law Society of South Africa notes that in the Trustees for the time being of the Delsheray Trust and Others v Absa Bank Limited[129] the court held that while the presumption of reliability has not been established in our law under that name, it exists by virtue of the doctrine of judicial notice and that these principles are firmly established in our law.

3.90 With regard to Section 15(4) and comments previously made relating to the additional overhead of affidavits as opposed to certificates, the Law Society of South Africa submits that the provision of a certificate where a matter is uncontested will achieve the same function as an affidavit. Indeed, in this particular instance an affidavit is required in terms of the rules of court as the application was for summary judgment. The same requirement is not necessary in applications for default judgment.

3.91 The Banking Association South Africa submits that the ECT Act provisions in general have proven to be effective but we support the notion to explore the development of new measures to assist courts in the discovery and inspection of electronic documents. The Banking Association South Africa appreciates the opportunity to be part of any committees/forums to be created in the reform process.

3.92 Advocate IM Bredenkamp notes that on face value the provisions of section 15 of Act 25 of 2002 is sufficient to regulate the admissibility of computer generated evidence. The LSSA is also of the view that the ECT Act is sufficient to regulate the admissibility of computer generated evidence.

3.93 However, the LSSA also supports the recommendation that the Rules Board consider amendments to the rules of court to provide for the discovery and inspection of electronic documents and submits that such revisions would greatly promote the administration of justice.

3.94 It is clear that the admissibility and evidential weight of disputed data message (including ordinary emails, attached electronic files and electronically stored records) depend on an ‘integrity’ assessment.

3.95 It is also clear that the ‘integrity’ of a disputed electronic document cannot be properly assessed from a paper printout of that electronic document, but only from an electronic copy of the document containing file metadata, i.e. information contained in the electronic copy that typically evidences when, and by whom, an electronic document was originally created, whether it was revised or edited, to whom it may have been sent and when it was received.

3.96 Accordingly, should the admissibility or evidential weight of a paper printout of an electronic document be challenged in contentious litigation, it results in significant wasted costs and delays that could otherwise have been avoided had electronic copies of those documents been produced.

3.97 Internationally, civil procedure rules have been amended to address these issues by catering for the proper discovery and production of electronic documents before trial. For example, in the United Kingdom, the importance of electronic file metadata was recognized by an amendment to the civil procedure rules relating to discovery in October 2005 which revised the definition of a ‘document’ in the UK’s civil procedure rules to now specifically include ‘additional information stored and associated with electronic documents known as ‘metadata’. If the rules are not amended as above, it will be difficult for a Court, in possession of only a paper copy of, for example, an email, and faced with admissibility challenge in respect of that email (irrespective of whether the challenge is bona fide or deliberately obstructive), to find good cause for allowing the disputed paper version to be used at trial because: (i) the ‘best evidence’ of that email would not have been produced in terms of Section 15(1)(b) of the ECT Act if the original electronic copy could have been produced, (ii) the ‘integrity’ of that email would not easily be capable of passing assessment in terms of Section 15(3) of the ECT Act and (iii) the ‘original’ of that email would not have been made available for inspection or produced at Court in terms of Rules 35(6) and (10) read in the light of Section 14 of the ECT Act.

3.98 If the rules were amended as outlined above, then not only would the rules regarding production of documents be more closely aligned with Sections 14 and 15 of the ECT Act but the process of obtaining copies of electronic documents would also become significantly more cost-efficient for litigants and their legal representatives. In addition, parties would also be in a proper pre-trial position to evaluate evidence and to consequently make informed, time-saving concessions during pre-trial conferences as to which documents may, without any further proof, serve as evidence of what they purport to be in terms of Rule 37(6)(k).

3.99 For the reasons outlined above, the Law Society of South Africa submits that Rules 35(2) and (6) should be amended and further submissions will be made directly to the Rules Board in this regard.

(c) Evaluation and recommendation

3.100 This matter was dealt with in a recent judgment in S v Terrance Stephan Brown.[130] This was a trail within a trail held to determine the admissibility of three photographs that was found of the accused on a phone which was found at the scene of a crime. The court addressed the question of originality. The court noted that section 14 of the ECT Act provides that a data message satisfies the requirements of original form if the integrity of the information from the time when it was first generated in its final form as a data message has passed assessment in terms of sec 14(2) and, secondly, that information is capable of being displayed or produced to the person to whom it is to be presented. The second requirement is clearly met (the images were downloaded and printed).

3.101 As regards the first requirement, sec 14(2) provides that integrity must be assessed

(a) by considering whether the information has remained complete and unaltered;

(b) in the light of the purpose for which the information was generated; and

(c) having regard to all other relevant circumstances.’[131]

The State tendered evidence that the images could be traced back to a certain phone or phones which transmitted them to Exhibit 1.[132] Linnen testified that the software he used precluded him from tampering with the images. The court noted that there was no evidence or even a suggestion that any person tampered with the phone or, more accurately, the images stored thereon, although the phone was in unknown hands for at most four hours that night before being handed over to Major Muller.[133] Furthermore, what evidence there is indicates that the phone was in the hands of lay persons in the four hour period and it is thus improbable that any tampering with the images in question took place.[134] The court held that it was most significant that Linnen’s evidence was that the data downloaded revealed that the images in question had been transmitted to the phone two days before the shooting at a stage when, on the available evidence, the phone was in the hands of the original owner or possessor.[135]

3.102 As regards the images being in their original form the court held:

In my view, on a conspectus of this evidence, the requirements of original form and of sec 14 of the ECTA have been met. In any event sec 15(1)(b) of the ECTA gives data messages a further exemption from the requirement of original form ‘if it is the best evidence that the person adducing it could reasonably be expected to obtain’. In the light of the lack of any evidence as to who originally transmitted the images to the phone, Exhibit 1, and the limited purposes for which the evidence was tendered, namely, to prove that the phone belonged to the accused, I consider that the State could not reasonably be expected to have produced better evidence of these images. Finally, as regards authenticity, I consider that, seen as a whole, Linnen’s evidence establishes the authenticity of the images in question which, in any event, was not disputed by the accused, the apparent subject of the images.[136]

3.103 Issue 11: the SALRC recommends that the Rules Board for Courts of Law (the Rules Board), perhaps assisted by a standing committee/working group with technical expertise be requested to consider amendments to the rules of court to provide for the discovery and inspection of electronic documents. The SALRC notes also that the Rules of Court may require amendment in the event of statutory reform that requires notice prior to trial to be given in respect of an intention to rely on hearsay or documentary evidence, as well as notice of any objections to the use thereof to enable parties to prepare for trial.

CHAPTER 4 LAW REFORM

A Recommendations for law reform

(a) Background

4.1 In considering these and related issues in the current Discussion Paper, the SALRC highlights several areas of confusion, and considers three broad options or possible approaches to law reform that may be pursued.

4.2 Option 1: Retention of the current regulatory landscape (possible minor reform). This approach would result in the retention of the current regulatory framework, possibly with the introduction of minor statutory reform (for example the substitution of current definitions in the CPA and the CPEA).

4.3 The advantage of such an approach is that relatively few changes to the current regulatory framework would be required, which would cause minimal disruption to the legal profession and would most likely be introduced fairly rapidly. However, this conservative approach would mean that multiple laws would still apply.

4.4 The disadvantages of this scenario include the likelihood that confusion would continue to exist about certain laws and principles, including the following:

· hearsay as it applies to automated electronic evidence (and the seeming hesitance to treat electronic evidence as real evidence);

· the authentication of electronic evidence;

· the admissibility of business records in terms of section 15(4) of the ECT Act; and

· the interaction between (and applicability of) the various laws that regulate exceptions to the hearsay rule.

4.5 Option 2: Introduction of Electronic Evidence specific legislation or guidelines: This option would also largely retain the current regulatory framework (with possible minor statutory reform) but in addition would introduce legislation[137] more detailed than section 15 of the ECT Act, specifically to address the admissibility of electronic evidence. The question of admissibility would focus on issues such as the authentication and reliability of electronic evidence. The content of such legislation may be informed by the provisions of the Draft Model Law on Electronic Evidence[138] commissioned and published in 2002 by the Commonwealth Secretariat.

4.6 The Model Law was published to assist Commonwealth jurisdictions grappling with legislative reform in the context of electronic evidence, and was endorsed by the Commonwealth Law Ministers as a Commonwealth model of good practice.

4.7 Option 2 would provide greater clarity on the admissibility and production of electronic evidence than Option 1. However, Option 2 would not resolve the potential confusion – and possible deviation from a functional equivalence approach[139] – caused by the multiple sources of law that would still apply to hearsay and documentary evidence.

4.8 Option 3: Reform of the current regulatory landscape: The third option involves a more extensive overhaul of the regulatory framework for hearsay and certain types of documentary evidence. This approach would include two aspects:

· The repeal of existing provisions on the admissibility of hearsay evidence and certain types of documentary evidence (primarily business records, including banking records) in terms of the CPA, CPEA, LEAA and the ECT Act.

· The introduction of a single statute to regulate the admissibility of such evidence, in terms of authentication, and the best evidence rule.

4.9 Option 3 would require the enactment of legislation along the lines of that set out in Annexure A. Option 3 would achieve the objectives of both Options 1 and 2, and would also reduce the opportunity for confusion that arises from the current multiple sources of law regulating the admissibility of such evidence.

(b) Exposition of comment

4.10 The Banking Association of South Africa notes that the current legislative framework dealing with hearsay evidence and admissibility of electronic evidence is uncertain and is dealt with in different statutes, for example the Criminal Procedure Act, the Civil Proceedings and Evidence Act, the Law of Evidence Amendment Act and the ECT Act.

4.11 The Banking Association of South Africa prefers Option 3 which deals with the reform of the current regulatory landscape.[140] It must be noted that such a reform will have a huge impact on the systems and processes that banks use, which should be taken into account during the review process.

4.12 An important development is the first draft Convention on Electronic Evidence as proposed by Mason.[141] The main objective of the draft convention is to pursue a common policy towards electronic evidence, taking into account the differences in the treatment of evidence in individual jurisdictions. Secondly, the aim is to encourage judges and lawyers to more fully understand the concept of electronic evidence in the interests of providing for fairness in legal proceedings; to promote adequate procedures in legal proceedings, to implement appropriate legislation where necessary, and to promote international co-operation. The text, reproduced in Annexure B, draws on several key resources.[142] These resources were considered in the preparation of the Draft Bill.

(c) Evaluation and recommendation

4.13 The SALRC recommends the adoption of a law on electronic commerce.

CHAPTER 5

RECOMMENDATIONS AND PROPOSALS FOR LEGISLATIVE REFORM

A. Recommendations: The ECT Act

5.1 The SALRC recommends a review of the ECT Act. Many of the provisions of the ECT Act have never been implemented or have become obsolete. By and large, there seems to be consensus that the ECT Act should be reviewed as a matter of priority.

5.2 The definitions in the ECT Act should be amended. The ECT Act’s definition of a data message includes ‘voice, where the voice is used in an automated transaction’. The SALRC proposes deleting this from the definition of a data message. The SALRC proposes the expansion of the definition of a data message to embrace future technologies that are not ‘electronic‘. It is thus not necessary to define ‘electronic’. The SALRC proposes the expansion of the definition of a data message to include ‘digital, magnetic, optical and electromagnetic or similar means’ by which data messages can be generated, sent, received or stored’.

5.3 Section 14 of the ECT Act is clear regarding what is deemed to be an ‘original’.

5.4 The SALRC recommends that the scope of the ECT Act remain unaltered.

5.5 The SALRC recommends that the regulation of electronic signatures in the ECT Act should be amended in line with the European Union Regulation and the adoption of a three- tier approach.

5.6 The SALRC recommends that the ECT Act should be amended to provide for standards for the accreditation of foreign signatures.

5.7 It is furthermore recommended that the ECT Act be amended to link the national electronic identification scheme to access to public services; to introduce other electronic trust services related to electronic delivery service, electronic seals, electronic time stamps, and website authentication.

5.8 The SALRC recommends the establishment of an appropriate forum comprised of multiple stakeholders to conduct the review of the ECT Act.

5.9 The SALRC recommends that the forum should conduct regular reviews of the ECT Act.

B. Recommendations: Electronic Evidence

5.10 The SALRC recommends law reform, through the introduction of a single statute to regulate electronic evidence as set out in Annexure A.

5.11 The SALRC supports the view that hearsay evidence made by a person in an electronic document should be treated in the same way as hearsay evidence in a paper- based document based on the principle of technological neutrality. On the interaction of the ECT Act with the CPEA, the CPA and the LEAA, the SALRC supports a less fragmented approach to the admissibility of documentary evidence and therefore proposes reform: through amending and supplementing existing provisions.

5.12 The SALRC supports the maintenance of a distinction between automated data messages and data messages ‘made by a person’ and proposes statutory reform (see Annexure A) to guide the production and proof of both types of evidence in court.

5.13 The SALRC supports the development of a handbook or a Guide on obtaining and producing electronic evidence that will provide clarity, to practitioners and judicial officers, on the legal position and advice on technical aspects of producing electronic evidence in court to avoid unnecessary confusion.

5.14 The SALRC does not recommend the adopt ion of a presumption of regularity in relation to mechanical devices in the law of evidence. The SALRC further recommends that the question of presumptions receive the attention of a standing committee/working group established in terms of the recommendations of this Report.

5.15 The SALRC recommends the adoption of a limited presumption (placing an evidential burden on the other party who did not object on notice) in civil proceedings (see Annexure A).

5.16 The SALRC recommends the review and amendment of the Rules of Court and other related laws to clear conflicts and inadequacies and to align the law of evidence to the effective use of electronic evidence in courts.

5.17 The SALRC recommends that the Rules Board for Courts of Law (the Rules Board), perhaps assisted by a standing committee/working group with technical expertise be requested to consider amendments to the rules of court to provide for the discovery and inspection of electronic documents. The SALRC notes also that the Rules of Court may require amendment in the event of statutory reform that requires notice prior to trial to be given in respect of an intention to rely on electronic documentary evidence, as well as notice of any objections to the use thereof to enable parties to prepare for trial.

C. Proposals for Legislative Reform

5.18 It is clear that legislative reform is both necessary and desirable to address the current difficulties surrounding electronic evidence in our courts.

5.19 The draft legislation proposed in Annexure A draws on several authoritative sources, namely (a) the first draft Convention on Electronic Evidence as proposed by Mason;[143] (b) the Commonwealth Draft Model Law on Electronic Evidence;[144] and (c) the ITU’s Electronic Evidence: Model Policy Guidelines & Legislative Texts[145] and the proposal made in Discussion Paper 131.

5.20 The term ‘authentication’, which is defined to mean the process by which any electronic record, document or other thing is proven to be what it claims to be was adopted from the Draft Convention.

5.21 The definitions of the terms ‘business’, ‘business records’ and ‘computer system’ were adopted from the proposal for legislation in Discussion Paper 131.

5.22 The term ‘computer’ which is defined as any electronic or digital device capable of performing mathematical or logical instructions was adopted from the Draft Convention.

5.23 The definition of contents data is any data whether in digital, optical, or other form, including metadata, that conveys essence, substance, information, meaning, purpose, intent, or intelligence, either singularly or when in a combined form, in either its unprocessed or processed form. This definition was adopted from the ITU Model Law. The definition of content data refers both to processed and to unprocessed forms of data. It encompasses not only “raw” contents aimed to be transformed in the course of data processing, but also the different data generated as outputs of such a processing activity. Content data also includes a second layer of data, containing “data about data” (metadata). Metadata is a central element of content data.

5.24 Similarly the definition of ‘data’ which means any representation of facts, information or concepts including information in a form suitable for processing in a computer, a computer system or a device. The definition of data also includes the content data (and therefore also metadata). It was adopted from the ITU Model Law. The scope of the proposed Bill is limited to electronic evidence. It thus only includes facts, information, and concepts which have been represented by binary digits.

5.25 The definition of a ‘device’, namely any electronic or digital apparatus or tool operating alone or connected to other apparatus or tools, that process information or data in digital form was adopted from the Draft Convention.

5.26 The definition of ‘digital’, namely anything that relies on technology based on a binary system or any future development or replacement technology was also adopted from the Draft Convention.

5.27 The definition of ‘electronic evidence’, namely evidence derived from data has been adopted from the Draft Convention. Note, however, that only the first part of the definition was adopted. The definition in the Draft Convention were deemed superfluous.

5.28 The definitions of ‘electronic record’ and ‘electronic records system’ were adopted from the Commonwealth Convention.

5.29 The definition of ‘metadata’, namely data that describes other data was adopted from the Draft Convention.

5.30 The definition of a ‘record’, namely anything in which information of any description is recorded was adopted from the Bill proposed in Discussion Paper 131.

5.31 Clause 2 on the scope was adopted from the Bill proposed in Discussion Paper 131.

5.32 Clause 3 is an enabling provision on the admissibility of electronic evidence. It is based on Article 2(1)-(2) of the Draft Convention as well as Clause 2.2 of the Bill proposed in Discussion Paper 131.

5.33 Clause 4 deals with the authenticity of electronic evidence. This clause was drafted with due reference to Article 3(1)-(2) of the Draft Convention and Clause 7.1 proposed in the Bill in Discussion paper 131. The clause is also partly based on Clause 9 of the ITU Model Law as well as Article 5 of the Commonwealth Convention.

5.34 Clause 5 deals with the application of the best evidence rule. It provides that in any legal proceeding, subject to sub-clause (2), where the best evidence rule is applicable in respect of an electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the data was recorded or stored. Sub-clause 2 provides that where an electronic record in the form of a printout has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, the printout is the record for the purposes of the best evidence rule. This clause 5 was drafted with reference to an adaptation of Article 4 of the Draft Convention. It is also based on Article 6(1)-(2) of the Commonwealth Convention. Subsection 2 is also based on Clause 8 of the ITU Model Law.

5.35 Clause 6(2) deals with the admissibility of business records and it establishes a limited presumption. It is partly based on Clause 4 of the draft Bill proposed in Discussion Paper 131. Clause 6(2) deals with a presumption of integrity of an electronic records system. This is modelled on Article 7 of the Commonwealth Convention and Article 6(2) of the ITU Model Law.

5.36 Clause 7 deals with standards relating to the preservation of records for the purpose of determining under any rule of law whether an electronic record is admissible. This clause is based on Clause 8 of the Commonwealth Convention and it is also partly based on Clause 10 of the ITU Model Law.

5.37 Clause 8 deals with the proof of matters related to print outs; business records and standards by affidavit. It is based on Clause 9 of the Commonwealth Convention.

5.38 Clause 9 refers to parties’ right to cross examination a deponent of an affidavit.

5.39 Clause 10 deals with agreements on the admissibility of electronic records. This clause is based on Article 5 of the Draft Convention. It is also based on Article 11(1)-(2) of the Commonwealth Convention.

5.40 The admissibility of electronic signatures is provided for in clause 11 of the Bill. Clauses 11(1)-(2) are based on Article 12(1)-(2) of the Commonwealth Convention.

5.41 Clause 12 provides that parties must give notice of intention to produce electronic evidence. This clause is partly based on Clause 6 of the Bill proposed in Discussion Paper

131. It should be noted that Clause 6(4) of the Bill proposed in Discussion Paper 131 was not adopted.

5.42 The court has a discretion to exclude or limit the use of electronic evidence or to admit such evidence provisionally. These issues are addressed in clauses 13-14. They are based on Clauses 9 and 10 of the Bill proposed in Discussion Paper 131.

5.43 Clauses 15-17 on the admissibility of electronic evidence from other jurisdictions; the recognition of foreign electronic evidence and signatures and interpretation were adopted from Clauses 8(1), Clause 9(1)-(2) and clause 10(1) of the Draft Convention.

Annexures

ANNEXURE A: DRAFT LAW OF EVIDENCE BILL

REPUBLIC OF SOUTH AFRICA

LAW OF EVIDENCE BILL

(As introduced)

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B - 2016]

REPUBLIEK VAN SUID-AFRIKA

WETSONTWERP OP BEWYSREG

(Soos ingedien)

(MINISTER VAN JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W- 2016]

GENERAL EXPLANATORY NOTE:

[           ]           Words in bold type in square brackets indicate omissions from existing enactments.

______           Words underlined with a solid line indicate insertions in existing enactments.

BILL

To regulate the admissibility of evidence so as to provide for the admissibility of hearsay evidence, and for the admissibility and proof of business records and evidence produced by processes, machines and other devices in all legal proceedings; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: Preamble204

1. Definitions

‘authentication’ means the process by which any electronic record, document or other thing is proven to be what it claims to be;

‘business’ includes any activity regularly carried on, whether for profit or not, by the state, any organ of state, any organisation or person;

‘business records’ includes those records created or received in the ordinary course of business;

‘computer’ means any electronic or digital device capable of performing mathematical or logical instructions;

‘computer system’ means a device or a group of interconnected or related devices, which perform functions pursuant to computer programs;

‘content data’ means any data whether in digital, optical, or other form, including metadata, that conveys essence, substance, information, meaning, purpose, intent, or intelligence, either singularly or when in a combined form, in either its unprocessed or processed form.

‘data’ means any representation of facts, information or concepts and includes information in a form suitable for processing in a computer, a computer system or a device and it includes the content data;

‘device’ means any electronic or digital apparatus or tool operating alone or connected to other apparatus or tools, that process information or data in digital form;

‘digital’ means anything that relies on technology based on a binary system or any future development or replacement technology;

‘electronic evidence’ means evidence derived from data;

‘electronic record’ means data, that is recorded or stored on any medium in or by a computer or other similar device and that can be read or perceived by a person or by computer or any device, and it includes a display, print out or other output of that data and includes business records;

‘electronic records system’ includes the computer system or other similar device by or in which data is recorded or stored, and any procedures related to the recording and preservation of electronic records.

‘metadata’ means data that describes other data;

‘record’ means anything in which information of any description is recorded;

2. Application

This Act applies to all criminal and civil proceedings or the legal proceedings before any tribunal in which the rules of evidence apply.

3. Admissibility of electronic evidence

(1) Evidence in electronic form shall be admitted into legal proceedings.

(2) Section 3(1) does not modify any rule that applies to the admissibility of evidence, except in relation to the rules relating to authenticity and best evidence.

4. Authenticity of electronic evidence

(1) The party seeking to introduce electronic evidence in any legal proceeding has the burden of proving its authenticity.

(2) The authenticity shall be established by

(a)  the reliability of the manner in which the data message was generated, stored or communicated;

(b)  the reliability of the manner in which the integrity of the data message was maintained;

(c)  the manner in which its originator was identified; and

(d)  any other relevant factor.

(3) When assessing the authenticity of evidence in electronic form referred to in sub- section (2), the following factors to be considered include but shall not be limited to:

(a)  Whether the data (both the content and associated metadata) relied upon in any legal proceedings is an accurate representation of the prevailing and existing state of the data at the time relevant to the legal proceedings.

(b)  If the data has changed, for whatever reason, there is an accurate and reliable method of documenting the changes, including the reasons for any such changes from the moment they were identified (and or possibly seized) as potential evidence in legal proceedings.

(c)  If the necessary continuity of the data between the moment the data was obtained for legal purposes and its submission as evidence in legal proceedings can be demonstrated.

(d)  Any techniques that were used to obtain, secure and process the data should be available to verification and testing.

(e)  The technical and organizational evidence must demonstrate that the integrity of the data is trustworthy, and is therefore considered to be reliable and complete, insofar as the data can be complete, which in turn will depend on the circumstances surrounding the data at the time it was identified as of being potentially relevant in legal proceedings.

5. Application of Best Evidence Rule

(1) In any legal proceeding, subject to subsection (2), where the best evidence rule is applicable in respect of an electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the data was recorded or stored.

(2) In any legal proceeding, where an electronic record in the form of a printout has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, the printout is the record for the purposes of the best evidence rule.

6. Business records

(1) Data in the form of business records made by or on behalf of a person in the ordinary course of business, or a copy or printout of or an extract from such data certified to be correct, is admissible in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organisation or any other law or the common law, as electronic evidence of the facts contained in such a business record, copy, printout or extract against any person, provided:

(a) an affidavit is made by the person who was in control of the information system at the time when the data message was created;

(b) the affidavit contains sufficient information on the authenticity of the electronic evidence as set out in section 4(3) above.

(2) In the absence of evidence to the contrary, the integrity of the electronic records system in which an electronic record is recorded or stored is presumed in any legal proceeding:

(a)  where evidence is adduced that supports a finding that at all material times the computer system or other similar device was operating properly, or if not, that in any respect in which it was not operating properly or out of operation, the integrity of the record was not affected by such circumstances.

(b)  where it is established that the electronic record was recorded or stored by a [an opposing] party to the proceedings [who is adverse in interest to the party seeking to introduce it]; or

(c)  where it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record.

7. Standards

For the purpose of determining under any rule of law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or preserved, having regard to the type of business or endeavour that used, recorded or preserved the electronic record and the nature and purpose of the electronic record.

8. Proof by Affidavit

The matters referred to in sections 5(2), 6, and 7 may be established by an affidavit given to the best of the deponent’s knowledge or belief.

9. Cross Examination

(1) A deponent of an affidavit referred to in section 8 that has been introduced in evidence may be cross-examined as of right by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced.

(2) Any party to the proceedings may, with leave of the court, cross examine a person referred to in section 8.

10. Agreement on Admissibility of Electronic Records

(1) Unless otherwise provided in any other statute, an electronic record is admissible, subject to the discretion of the court, if the parties to the proceedings have expressly agreed at any time that its admissibility may not be disputed.

(2) Notwithstanding subsection (1), an agreement between the parties on admissibility of an electronic record does not render the record admissible in a criminal proceeding on behalf of the prosecution if at the time the agreement was made, the accused person or any of the persons accused in the proceeding was not represented by an attorney.

11. Admissibility of Electronic Signature

(1) Where a rule of evidence requires a signature, or provides for certain consequences if a document is not signed, an electronic signature satisfies that rule of law or avoids those consequences.

(2) An electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person, in order to proceed further with a transaction, to have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person.

(3) The signature, execution, or attestation of a document, whether electronic or otherwise, that is required by law to be attested may be proved by any satisfactory means, provided that an attesting witness need not be called to prove that the document was signed, executed or attested if it was signed, executed, or attested by an advanced electronic signature.

12. Notice of intention to produce electronic evidence

(1) Notice of an intention to produce e l e c t r o n i c evidence in terms of subsections 3, 4 or 5 must be given-

(a)  in writing to every other party to the proceeding, and must include the contents of the electronic evidence and (where applicable) the originator of the data; and if the electronic evidence is to be produced, a print out or a copy of the data including any related metadata must be attached to the notice; and

(b)  in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to prepare to inspect the electronic evidence.

(2) A party to the proceeding who is given notice in terms of subsection (1) must, if that party objects to the admission of the electronic evidence, give notice of objection as soon as practicable to the party proposing to offer the statement.

(3) Subsections (1) and (2) may be excluded by agreement of the parties, or by waiver of the party to whom notice is required to be given; or the presiding officer may dispense with the requirement to give notice under subsections (1) or (2)-

(a)  if having regard to the nature and contents of the electronic evidence, no party is substantially prejudiced by the failure to give notice under subsection (1); or

(b)  if giving notice was not reasonably practicable in the circumstances; or

(c)  in the interests of justice.

(4) In any civil proceedings, where the notice in terms of subsection (1) relates to documentary evidence and no party objects to the notice in terms of subsection (1), or if the court dismisses an objection on the ground that no useful purpose would be served by requiring the party concerned to call a witness to produce the electronic evidence,-

(a)  the electronic evidence, if otherwise admissible, may be admitted in evidence; and

(b)  it will be presumed, in the absence of evidence to the contrary, that the nature, origin, and contents of the electronic evidence are as shown by the content data.

(5) Provision may be made by the Rules of Court specifying the manner in which the duties imposed by this section are to be complied with, including the time allowed for such compliance.

(6) A failure to comply with this section or any Rules of Court provided in terms of subsection (5) does not affect the admissibility of the evidence, but may be taken into account by the court-

(a)  in considering the exercise of its powers over the proceedings and in respect of costs; and

(b)  as a matter that might adversely affect the weight to be given to the evidence.

(7) In any civil proceeding where a party is permitted under the Rules of Court relating to discovery to inspect a document -

(a)  the requirement to prove the authenticity and integrity of the electronic evidence may be dispensed with in circumstances described in those Rules; and

(b)  the procedure to be adopted by a party seeking to require proof of the authenticity and integrity of the electronic evidence is set out in those Rules; and

(c)  the production of secondary evidence to prove the authenticity and integrity of the Electronic evidence may be permitted in circumstances described in those Rules.

13. Discretion to exclude or limit the use of electronic evidence

The court may refuse to admit electronic evidence or may limit the use to be made of such evidence; if a particular use of the evidence might be unfairly prejudicial to a party or might be misleading or confusing.

14. Provisional admission of evidence

If a question arises concerning the admissibility of any electronic evidence, the court may admit the electronic evidence in question, subject to further evidence being offered later on to establish its relevance and evidentiary weight.

15. Admissibility of electronic evidence from other jurisdictions

(1) Where electronic evidence originates from another jurisdiction, its admissibility is not impaired if the electronic evidence is proven in accordance with Article 4 or the authenticity of the evidence is otherwise demonstrated.

16. Recognition of foreign electronic evidence and signatures

(1) In determining whether or not, or to what extent, data in electronic form is legally effective, no regard shall be had to the geographical location where the data was created or used or to the place of business of its creation, provided the electronic record or document is located in South Africa.

(2) Where the electronic record or document is located in a foreign jurisdiction, sub-section (1) does not apply unless –

(a)  the party who adduces evidence of the contents of the electronic record or document has, not less than 14 days before the day on which the evidence is adduced, served on each other party a copy of the electronic record or electronic evidence proposed to be tendered;

(b)  the court directs that it is to apply; or

(c)  there is an international treaty in effect establishing recognition of electronic records or documents or of electronic signatures located in the foreign jurisdiction.

17. Interpretation

(1) The provisions of this Act may be interpreted and enforced in light of the internationally accepted principles of technological neutrality and of functional equivalence.

18. Repeal of sections of statutes

Repeals: section 15(4) of the ECT Act

Sections 27 - 38 of the Civil Proceedings Evidence Act (notwithstanding these provisions the Electronic Evidence Act shall apply to electronic evidence)

Sections 221, 222, and 236 of the Criminal Procedure Act (notwithstanding these provisions the Electronic Evidence Act shall apply to electronic evidence)

ANNEXURE B: DRAFT ELECTRONIC EVIDENCE CONVENTION

Part I – Use of terms

Article 1 – Definitions

For the purposes of this Convention:

‘attribution’ means the assigning of responsibility for or tracing the origin of an act purported to have been performed or committed using or through a computer device, system or network;

‘authentication’ means the process by which any electronic record, document or other thing is proven to be what it claims to be;

‘computer’ means any electronic device capable of performing mathematical or logical instructions;

‘electronic evidence’ means evidence derived from data contained in or produced by any device the functioning of which depends on a software program or from data stored on or communicated over a computer system or network;

‘electronic record’ means data that is recorded or stored on any medium in or by a device programmed by software code and that can be read or perceived by a person or any such device, and includes a display, print out or other output of that data;

‘data’ means data in digital form;

‘device’ means any electronic apparatus or tool operating alone or connected to other apparatus or tools, that process information or data in digital form;

‘digital’ means anything that relies on technology based on a binary system or any future development or replacement technology of the same;

‘digital evidence specialist’ means a person who is appropriately qualified, and where the law requires, authorized, and capable of investigating and examining evidence in electronic form;

‘legal proceeding’ means before any statutory arbitral or other tribunal, board or commission according to national law and charged with legally defined duties and obligations, or any other formal legal process;

‘metadata’ means data that describes other data;

‘software program’ means any set of instructions that will cause a device to perform a function;

‘tool’ means any device or software program that can be used to identify, secure, examine and analyse electronic evidence.

Part II – Status of electronic evidence

Article 2 – Admissibility of electronic evidence

(1)  Evidence in electronic form shall be admitted into legal proceedings.

(2)  Article 2(1) does not modify any rule that applies to the admissibility of evidence, except in relation to the rules relating to authenticity and best evidence.

Article 3 – Authenticity of electronic evidence

(1)  The party seeking to introduce electronic evidence in any legal proceeding has the burden of proving its authenticity.

(2)  The following tests are to be considered when assessing the authenticity of evidence in electronic form:

(a)  The data (both the content and associated metadata) relied upon in any legal proceedings are an accurate representation of the prevailing and existing state of those data at the time relevant to the legal proceedings.

(b)  If the data have changed, for whatever reason, there is an accurate and reliable method of documenting the changes, including the reasons for any such changes from the moment they were identified (and possibly seized) as potential evidence in legal proceedings.

(c)  It is necessary to demonstrate the continuity of the data between the moment the data were obtained for legal purposes and their submission as an exhibit in legal proceedings.

(d)  It should be possible to test any techniques that were used to obtain, secure and process the data.

(e)  The technical and organizational evidence demonstrates the integrity of the data is trustworthy, and is therefore considered to be reliable and complete, insofar as the data can be complete, which in turn will depend on the circumstances surrounding the data at the time it was identified as of being potentially relevant in legal proceedings.

Article 4 – Best evidence

In any legal proceeding, where any printout, document or other physical manifestation of the result or output or appearance of any electronic process, record or any other representation of that process or record has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, the printout is the record for the purpose of the best evidence rule and shall be admitted as evidence subject to satisfactory proof of its integrity.

Article 5 – Agreement on admissibility of electronic evidence

(1)  Unless otherwise provided in any law, an electronic record or document is admissible, subject to the discretion of the court, if the parties to the proceedings have expressly agreed at a time provided for in domestic law that its admissibility may not be disputed.

(2)  Notwithstanding the provisions of Article 5(1), an agreement between the parties on the admissibility of an electronic record or document does not render the record admissible in a criminal proceeding if at the time the agreement was made, the accused person or any of the persons accused in the proceeding was not represented by a lawyer.

Part III – Investigation and examination of electronic evidence

Article 6 – Digital evidence specialist

(1)  Provision should be given to the formal education and training of digital evidence specialists. Such specialists are required to make judgements about the appropriateness of the tools and techniques they use to interrogate devices and seize evidence in electronic format.

(2)  A digital evidence specialist must provide an analysis of their findings, setting out the basis upon which their judgement is formulated. In addition, it is necessary for a practitioner to identify any data that appear to be inconsistent with their assessment.

(3)  The primary duty of the digital evidence specialist is to the court.

Article 7 – The use of good practice guidelines for electronic evidence

(1)  The Parties shall establish a Forum for the development of good practice and guidelines in the acquisition, handling and otherwise processing of electronic evidence in the form of Standard Operating Procedures.

(2)  The forum shall

(a)  Include participation from at least two thirds of all Parties to the Convention.

(b)  Establish its own rules of procedure and may establish subcommittees to consider specific issues.

(c)  Be funded by contributions from the Parties on a basis to be agreed.

(d)  Submit the first edition of its Standard Operating Procedures within two (2) years of this Convention coming into force.

(e)  Produce updates and amendments to the Standard Operating Procedures as deemed desirable and necessary by the forum and in any case every two years.

(3)  Except where incompatible or inconsistent with national legislation, codes or procedure, Parties to this Convention shall implement Standard Operating Procedures on the acquisition, obtaining, packaging, processing and examination of electronic evidence.

(4)  The Standard Operating Procedures shall be:

(a)  Drafted by reference to the standards and guidelines established by the Forum.

(b)  Adopted within 18 months of accession to this Convention or within 18 months of the publication of the first version of the Standard Operating Procedures by the Forum, wherever is the sooner.

(c)  Implemented by all national and government departments charged with legal duties and obligations involving the use, handling or processing of electronic evidence.

(5)  Any authority responsible for investigating a matter involving the criminal law shall apply and follow the Standard Operating Procedures unless there are exceptional or extenuating circumstances where they cannot be followed.

(6)  Where, under Article 7(5) above, the Standard Operating Procedures have not been complied with for exceptional circumstances, those circumstances and the reasons shall be recorded in writing at the time of the departure from the Standard Operating Procedures and the written record shall be admissible in legal proceedings.

Part IV – General provisions

Article 8 – Admissibility of electronic evidence from other jurisdictions

(1)  Where electronic evidence originates from another jurisdiction, its admissibility is not impaired if the electronic evidence is proven in accordance with Article 3 or the authenticity of the evidence is otherwise demonstrated.

(2)  Parties to this Convention shall adopt legislation whereby Internet Service Providers or Commercial Service Providers in the business of telecommunications who operate within the territory of the Party shall comply with any and all legislative provisions and judicial or prosecutorial notices and orders regarding the data relevant to the use of those services, no matter where the data are held or processed, as if those data were held or processed within the Party’s territory.

Article 9 – Recognition of foreign electronic evidence and signatures

(1)  In determining whether or not, or to what extent, data in electronic form is legally effective, no regard shall be had to the geographical location where the data was created or used or to the place of business of its creation, provided the electronic record or document is located in the domestic jurisdiction.

(2)  Where the electronic record or document is located in a foreign jurisdiction, Article 9(1) above does not apply unless –

(a)  the party who adduces evidence of the contents of the electronic record or document has, not less than 14 days before the day on which the evidence is adduced, served on each other party a copy of the electronic record or document proposed to be tendered;

(b)  the court directs that it is to apply; or

(c)  there is an international treaty in effect establishing recognition of electronic records or documents or of electronic signatures located in the foreign jurisdiction.

(3)  Notwithstanding the provisions of Article 9(2) above, an adjudicator may admit data in electronic form that is located in a foreign jurisdiction if domestic law so provides.

Article 10 – Interpretation

(2)  The provisions of this Convention shall be interpreted and enforced in light of the internationally accepted principles of technological neutrality and of functional equivalence.

(3)  Where the meaning of a word or phrase in this Convention differs from the meaning of a word or phrase defined in any information technology literature, the adjudicator shall interpret the meaning in accordance with the domestic law on the interpretation of words and phrases.

Article 11 – Entering into force

(1)  The Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations.

(2)  For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession.

ANNEXURE C: COMMONWEALTH MODEL LAW

ELECTRONIC EVIDENCE MODEL LAW

AN ACT to make provision for the legal recognition of electronic records and to facilitate the admission of such records into evidence in legal proceedings.

BE IT ENACTED by the Parliament [name of legislature] of ……… [name of country] as follows:

Short Title

1. This Act may be cited as the Electronic Evidence Act, 2002

Interpretation

2. In this Act,

‘data’ means representations, in any form, of information or concepts;

‘electronic record’ means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, print out or other output of that data.

‘electronic records system’ includes the computer system or other similar device by or in which data is recorded or stored, and any procedures related to the recording and preservation of electronic records.

‘legal proceeding’ means a civil, criminal or administrative proceeding in a court or before a tribunal, board or commission.

General Admissibility

3. Nothing in the rules of evidence shall apply to deny the admissibility of an electronic record in evidence on the sole ground that it is an electronic record.

4. (1) This Act does not modify any common law or statutory rule relating to the admissibility or records, except the rules relating to authentication and best evidence.

Scope of Act

A court may have regard to evidence adduced under this Act in applying any common law or statutory rule relating to the admissibility of records.

Authentication

5. The person seeking to introduce an electronic record in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be.

Application of Best Evidence Rule

6. (1) In any legal proceeding, subject to subsection (b), where the best evidence rule is applicable in respect of electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the data was recorded or stored.

(2) In any legal proceeding, where an electronic record in the form of printout has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, the printout is the record for the purposes of the best evidence rule.

Presumption of Integrity

7. In the absence of evidence to the contrary, the integrity of the electronic records system in which an electronic record is recorded or stored is presumed in any legal proceeding:

(a)  where evidence is adduced that supports a finding that at all material times the computer system or other similar device was operating properly, or if not, that in any respect in which it was not operating properly or out of operation, the integrity of the record was not affected by such circumstances, and there are no other reasonable grounds to doubt the integrity of the record.

(b)  where it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or

(c)  where it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record.

Standards

8. For the purpose of determining under any rule of law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or preserved, having regard to the type of business or endeavour that used, recorded or preserved the electronic record and the nature and purpose of the electronic record.

Proof by Affidavit

9. The matters referred to in sections 6, 7, and 8 may be established by an affidavit given to the best of the deponent’s knowledge or belief.

Cross Examination

10. A deponent of an affidavit referred to in section 9 that has been introduced in evidence may be cross-examined as of right by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced.

(2) Any party to the proceedings may, with leave of the court, cross examine a person referred to in subsection 7(c).

Agreement on Admissibility of Electronic Records

11. (1) Unless otherwise provided in any other statute, an electronic record is admissible, subject to the discretion of the court, if the parties to the proceedings have expressly agreed at any time that its admissibility may not be disputed.

(2) Notwithstanding subsection (1), an agreement between the parties on admissibility of an electronic record does not render the record admissible in a criminal proceeding on behalf of the prosecution if at the time the agreement was made, the accused person or any of the persons accused in the proceeding was not represented by a solicitor.

Admissibility of Electronic Signature

12. (1) Where a rule of evidence requires a signature, or provides for certain consequences if a document is not signed, an electronic signature satisfies that rule of law or avoids those consequences.

(2) An electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person, in order to proceed further with a transaction, to have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person.

ANNEXURE D: EXTRACTS FROM the ITU MODEL LAW ON ELECTRONIC COMMERCE (HIPCAR PROJECT)

PART II – ADMISSIBILITY

3. Amendment to Authentication and Best Evidence Rules

This Act does not modify any common law or statutory provision relating to the admissibility of records, except those relating to authentication and best evidence.

4. Common Law and Statutory Rules

In applying any common law or statutory provision relating to the admissibility of records, the Court may have regard to the principles guiding the admissibility of electronic records as prescribed by this Act.

5. General Admissibility of Electronic Evidence

Nothing in the rules of evidence shall apply to deny the admissibility of an electronic record in evidence on the sole ground that it is an electronic record.

6. Application of the Best Evidence Rule

(1) In any legal proceeding, subject to subsection (2), where the best evidence rule is applicable in respect of electronic record, the rule is satisfied on proof of the integrity of the computer in or by which the data was recorded or stored.

(2) In the absence of evidence to the contrary, the integrity of the computer in which an electronic record is recorded or stored is presumed in any legal proceeding:

(a) where evidence is adduced that supports a finding that at all material times the computer system or other similar device was operating properly, or if not, that in any respect in which it was not operating properly or out of operation, the integrity of the record was not affected by such circumstances, and there are no other reasonable grounds to doubt the integrity of the record;

(b) where it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or

(c) where it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record.

7. Integrity of Information, and Specific Admissibility Rules

(1) A statement contained in an electronic record produced by a computer which constitutes hearsay shall not be admissible in any proceedings as evidence of any fact stated therein unless the integrity of the computer is presumed under subsection 2.

(2) In the absence of evidence to the contrary, the integrity of the computer in which an electronic record is recorded or stored is presumed in any legal proceeding if the transaction record:

(a) has remained complete and unaltered, apart from:

(i) the addition of any endorsement; or

(ii) any immaterial change;

which arises in the normal course of communication, storage or display;

(b) has been electronically certified or has been electronically signed, by a method provided by accredited certification entities;

(c) which integrity and content has been notarized;

(d) has been recorded in a non-rewritable storage device, or any other electronic means that does not allow the alteration of the electronic records;

(e) has been examined and its integrity confirmed by an expert appointed by the court; or

(f) relating to which:

(i) evidence is adduced that supports a finding that at all material times the computer system or other similar device was operating properly, or if not, that in any respect in which it was not operating properly or out of operation, the integrity of the record was not affected by such circumstances, and there are no other reasonable grounds to doubt the integrity of the record.

(ii)  it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or

(iii) it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record.

(3) Where a statement contained in an electronic record produced by a computer does not constitute hearsay, such a statement shall be admissible if the conditions specified in subsection (2) are satisfied in relation to that electronic record.

8. Print-outs

(1) In any legal proceeding, where an electronic recording in the form of a printout has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, the printout may be deemed to be the record for the purpose of the best evidence rule.

(2) A printout or record of a data message, certified to be a correct representation of the data message as it is displayed on a computer or information system by a person authorised by an entity wishing to have the printout admitted as evidence, is, on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law or the rules of a self-regulatory organisation or any other law or the common law, admissible in evidence as rebuttable evidence of the information contained in the record or printout.

9. Burden to Prove the Authenticity of Electronic Evidence

The person seeking to introduce an electronic record in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be. In the event there is special legislation protecting more vulnerable persons, including consumers and children, and establishing allocation of burden of proof more beneficial to those persons, such legislation shall have precedence over this section.

10. Standards

For the purpose of determining under any other law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or preserved, having regard to the type of business or endeavour used, recorded or preserved the electronic record and the nature and purpose of the electronic record. Public authorities in charge of development or approval of relevant technical standards or security procedures shall issue guidelines providing orientation on the applicable criteria to be followed for compliance with this section.

11. Affidavits

Where it is intended to adduce an electronic record as evidence, it is permissible to have that record adduced in the form of an affidavit.

12. Agreement on Admissibility of Evidence

(1) Unless otherwise provided in any statute, an electronic record is admissible, subject to the discretion of the court, if the parties to the proceedings have expressly agreed at any time that its admissibility may not be disputed.

(2) Notwithstanding subsection (1), an agreement between the parties on admissibility of an electronic record does not render the record admissible in a criminal proceeding on behalf of the prosecution if at the time the agreement was made, the accused person or any of the persons accused in the proceeding was not legally assisted or represented.

ANNEXURE E: CPEA, CPA, LEAA and the ECT Act

Extract from:

CIVIL PROCEEDINGS EVIDENCE ACT 25 OF 1965

PARTV

DOCUMENTARY EVIDENCE (SPECIAL PROVISIONS AS TO BANKERS' BOOKS) (ss 27-32)

27. Definition of 'bank'

in this Part 'bank' means a 'banking institution' as defined in the Banks Act, 1965, and includes the Land and Agricultural Bank of South Africa, and a building society.

28. Entries in bankers' books admissible in certain cases

The entries in ledgers, day-books, cash-books and other account books of any bank, shall be admissible as prima facie evidence of the matters, transactions and accounts therein recorded, on proof being given by affidavit in writing of a director, manager or officer of such bank, or by other evidence that such ledgers, day-books, cash-books or other account books are or have been the ordinary books of such bank, and that the said entries have been made in the usual and ordinary course of business, and that such books are in or come immediately from the custody or control of such bank.

29. Examined copies of entries in bankers' books admissible

Copies of all entries in ledgers, day-books, cash-books or other account books used by any bank, may be proved as evidence of such entries without production of the originals, by means of the affidavit of a person who has examined the same, stating the fact of the examination and that the copies sought to be put in evidence are correct.

30. Notice of intention to adduce evidence relating to entries in bankers' books

(1)  No ledger, day-book, cash-book or other account book of any bank, and no copies of entries therein contained, shall be adduced or received in evidence under this Part, unless at least ten days' notice in writing, or such other notice as may be ordered by the person presiding at the proceedings concerned, containing a copy of the entries proposed to be adduced in evidence, has been given by the party proposing to adduce the same in evidence to the other party.

(2) On the application of any party who has received such notice, the person presiding at the proceedings may order that such party be at liberty to inspect and take copies of any entry in the ledgers, day-books, cash-books or other account books of the bank concerned, relating to the matters in question, and such order may be made in the discretion of the person so presiding, either with or without summoning before him such bank or the other party, and shall be intimated to such bank at least three days before such copies are required.

(3) On the application of any party who has received such notice, the person presiding at the proceedings may order that the entries and copies mentioned in the notice shall not be admissible as evidence of the matters, transactions and accounts recorded in such ledgers, day-books, cash-books or other account books.

31. Bank not compelled to produce books unless ordered to do so

No bank shall be compelled to produce its ledgers, day-books, cash-books or other account books in any civil proceedings unless the person presiding at such proceedings orders that they shall be so produced.

32. This Part not to apply to proceedings to which bank is a party

Nothing in this Part contained shall apply to any civil proceedings to which any bank whose ledgers, day-books, cash-books or other account books are required to be produced in evidence, is a party.

PART VI

DOCUMENTARY EVIDENCE (MISCELLANEOUS PROVISIONS) (ss 33-38)

33. Definitions

In this Part, unless the context otherwise indicates-

'document' includes any book, map, plan, drawing or photograph;

'statement' includes any representation of fact, whether made in words or otherwise.

34. Admissibility of documentary evidence as to facts in issue

(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document be admissible as evidence of that fact, provided-

(a) the person who made the statement either-

(i) had personal knowledge of the matters dealt with in the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with therein are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had or might reasonably have been supposed to have personal knowledge of those matters; and

(b) the person who made the statement is called as a witness in the proceedings unless he is dead or unfit by reason of his bodily or mental condition to attend as a witness or is outside the Republic, and it is not reasonably practicable to secure his attendance or all reasonable efforts to find him have been made without success.

(2) The person presiding at the proceedings may, if having regard to all the circumstances of the case he is satisfied that undue delay or expense would otherwise be caused, admit such a statement as is referred to in subsection (1) as evidence in those proceedings-

(a) notwithstanding that the person who made the statement is available but is not called as a witness;

(b) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof proved to be a true copy.

(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.

(4) A statement in a document shall not for the purposes of this section be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.

(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the provisions of this section, any reasonable inference may be drawn from the form or contents of the document in which the statement is contained or from any other circumstances, and a certificate of a registered medical practitioner may be acted upon in deciding whether or not a person is fit to attend as a witness.

35. Weight to be attached to evidence admissible under this Part

(1)  In estimating the weight, if any, to be attached to a statement admissible as evidence under this Part, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the person who made the statement had any incentive to conceal or misrepresent facts.

(2)  A statement admissible as evidence under this Part shall not, for the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, be treated as corroboration of evidence given by the person who made the statement.

36. Proof of instrument to validity of which attestation is necessary

In any civil proceedings an instrument to the validity of which attestation is requisite may, instead of being proved by an attesting witness, be proved in the manner in which it might be proved if no attesting witness were alive: Provided that nothing in this section contained shall apply to the proof of wills or other testamentary writings.

37. Presumptions as to documents twenty years old

There shall in any civil proceedings, in the case of a document proved or purporting to be not less than twenty years old, be made any presumption which on the fifteenth day of March, 1962, would have been made in the case of a document of like character proved or which purported to be not less than thirty years old.

38. Savings

Nothing in this Part shall-

(a)  prejudice the admissibility of any evidence which would apart from the provisions of this Part be admissible; or

(b)  render admissible documentary evidence as to any declaration relating to a matter of pedigree, if that declaration would not have been admissible as evidence if this Part had not been enacted.

Extract from

CRIMINAL PROCEDURE ACT 51 OF 1977

221. Admissibility of certain trade or business records

(1)  In criminal proceedings in which direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, upon production of the document, be admissible as evidence of that fact if-

(a)  the document is or forms part of a record relating to any trade or business and has been compiled in the course of that trade or business, from information supplied, directly or indirectly, by persons who have or may reasonably be supposed to have personal knowledge of the matters dealt with in the information they supply; and

(b)  the person who supplied the information recorded in the statement in question is dead or is outside the Republic or is unfit by reason of his physical or mental condition to attend as a witness or cannot with reasonable diligence be identified or found or cannot reasonably be expected, having regard to the time which has elapsed since he supplied the information as well as all the circumstances, to have any recollection of the matters dealt with in the information he supplied.

(2)  For the purpose of deciding whether or not a statement is admissible as evidence under this section, the court may draw any reasonable inference from the form or content of the document in which the statement is contained, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be a certificate of a registered medical practitioner.

(3)  In estimating the weight to be attached to a statement admissible as evidence under this section, regard shall be had to all the circumstances from which any inference may reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular, to the question whether or not the person who supplied the information recorded in the statement, did so contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not that person or any person concerned with making or keeping the record containing the statement, had any incentive to conceal or misrepresent the facts.

(4) No provision of this section shall prejudice the admissibility of any evidence which would be admissible apart from the provisions of this section.

(5) In this section-

'business' includes any public transport, public utility or similar undertaking carried on by a local authority, and the activities of the Post Office and the Railways Administration;

'document' includes any device by means of which information is recorded or stored; and 'statement' includes any representation of fact, whether made in words or otherwise.

222. Application to criminal proceedings of certain provisions of Civil Proceedings Evidence Act,1965, relating to documentary evidence

The provisions of sections 33 to 38 inclusive, of the Civil Proceedings Evidence Act, 1965 (Act 25 of 1965), shall mutatis mutandis apply with reference to criminal proceedings.

236. Proof of entries in accounting records and documentation of banks

(1)  The entries in the accounting records of a bank, and any document which is in the possession of any bank and which refers to the said entries or to any business transaction of the bank, shall, upon the mere production at criminal proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges-

(a)  that he is in the service of the bank in question;

(b)  that such accounting records or document is or has been the ordinary records or document of such bank;

(c)  that the said entries have been made in the usual and ordinary course of the business of such bank or the said document has been compiled, printed or obtained in the usual and ordinary course of the business of such bank; and

(d)  that such accounting records or document is in the custody or under the control of such bank,

be prima facie proof at such proceedings of the matters, transactions and accounts recorded in such accounting records or document.

(2)  Any entry in any accounting record referred to in subsection (1) or any document referred to in subsection (1) may be proved at criminal proceedings upon the mere production at such proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges-

(a)  that he is in the service of the bank in question;

(b)  that he has examined the entry, accounting record or document in question; and

(c) that a copy of such entry or document set out in the affidavit or in an annexure thereto is a correct copy of such entry or document.

(3) Any party at the proceedings in question against whom evidence is adduced in terms of this section or against whom it is intended to adduce evidence in terms of this section, may, upon the order of the court before which the proceedings are pending, inspect the original of the document or entry in question and any accounting record in which such entry appears or of which such entry forms part, and such party may make copies of such document or entry, and the court shall, upon the application of the party concerned, adjourn the proceedings for the purpose of such inspection or the making of such copies.

(4) No bank shall be compelled to produce any accounting record referred to in subsection (1) at any criminal proceedings, unless the court concerned orders that any such record be produced.

(5) In this section-

'document' includes a recording or transcribed computer printout produced by any mechanical or electronic device and any device by means of which information is recorded or stored; and 'entry' includes any notation in the accounting records of a bank by any means whatsoever.

Extract from

LAW OF EVIDENCE AMENDMENT ACT 45 OF 1988

3 Hearsay evidence

(1)  Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless-

(a)  each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

(b)  the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or

(c)  the court, having regard to-

(i) the nature of the proceedings;

(ii) the nature of the evidence;

(iii) the purpose for which the evidence is tendered;

(iv) the probative value of the evidence;

(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail; and

(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.

(2)  The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.

(3)  Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.

(4)  For the purposes of this section-

'hearsay evidence' means evidence, whether oralor in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence; 'party' means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.

Extract from:

ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT 25 OF 2002

13 Signature

(1)  Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used.

(2)  Subject to subsection (1), an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form.

(3)  Where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if-

(a)  a method is used to identify the person and to indicate the person's approval of the information Communicated; and

(b)  having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.

(4)  Where an advanced electronic signature has been used, such signature is regarded as being a valid electronic signature and to have been applied properly, unless the contrary is proved.

(5)  Where an electronic signature is not required by the parties to an electronic transaction, an expression of intent or other statement is not without legal force and effect merely on the grounds that-

(a)  it is in the form of a data message; or

(b)  it is not evidenced by an electronic signature but is evidenced by other means from which such person's intent or other statement can be inferred.

14 Original

(1)  Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if-

(a)  the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and

(b)  that information is capable of being displayed or produced to the person to whom it is to be presented.

(2)  For the purposes of subsection 1(a), the integrity must be assessed-

(a)  by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display;

(b)  in the light of the purpose for which the information was generated; and

(c)  having regard to all other relevant circumstances.

15 Admissibility and evidential weight of data messages

(1)  In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence-

(a)  on the mere grounds that it is constituted by a data message; or

(b)  if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.

(2)  Information in the form of a data message must be given due evidential weight.

(3)  In assessing the evidential weight of a data message, regard must be had to-

(a)  the reliability of the manner in which the data message was generated, stored or communicated;

(b)  the reliability of the manner in which the integrity of the data message was maintained;

(c)  the manner in which its originator was identified; and

(d)  any other relevant factor.

(4)  A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil,criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record,copy, printout or extract.

16 Retention

(1)  Where a law requires information to be retained, that requirement is met by retaining such information in the form of a data message, if-

(a)  the information contained in the data message is accessible so as to be usable for subsequent reference;

(b)  the data message is in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and

(c)  the origin and destination of that data message and the date and time it was sent or received can be determined.

(2)  The obligation to retain information as contemplated in subsection (1) does not extend to any information the sole purpose of which is to enable the message to be sent or received.

17 Production of document or information

(1)  Subject to section 28, where a law requires a person to produce a document or information, that requirement is met if the person produces, by means of a data message, an electronic form of that document or information, and if-

(a)  considering all the relevant circumstances at the time that the data message was sent, the method of generating the electronic form of that document provided a reliable means of assuring the maintenance of the integrity of the information contained in that document; and

(b)  at the time the data message was sent, it was reasonable to expect that the information contained therein would be readily accessible so as to be usable for subsequent reference.

(2)  For the purposes of subsection (1), the integrity of the information contained in a document is maintained if the information has remained complete and unaltered, except for-

(a)  the addition of any endorsement; or

(b)  any immaterial change, which arises in the normal course of communication, storage or display.

18 Notarisation, acknowledgement and certification

(1)  Where a law requires a signature, statement or document to be notarised, acknowledged, verified or made under oath, that requirement is met if the advanced electronic signature of the person authorised to perform those acts is attached to, incorporated in or logically associated with the electronic signature or data message.

(2)  Where a law requires or permits a person to provide a certified copy of a document and the document exists in electronic form, that requirement is met if the person provides a print-out certified to be a true reproduction of the document or information.

(3)  Where a law requires or permits a person to provide a certified copy of a document and the document exists in paper or other physical form, that requirement is met if an electronic copy of the document is certified to be a true copy thereof and the certification is confirmed by the use of an advanced electronic signature.

19 Other requirements

(1)  A requirement in a law for multiple copies of a document to be submitted to a single addressee at the same time, is satisfied by the submission of a single data message that is capable of being reproduced by that addressee.

(2)  An expression in a law, whether used as a noun or verb, including the terms 'document'. 'record', 'file', 'submit', 'lodge', 'deliver', 'issue', 'publish', 'write in', 'print' or words or expressions of similar effect, must be interpreted so as to include or permit such form, format or action in relation to a data message unless otherwise provided for in this Act.

(3)  Where a seal is required by law to be affixed to a document and such law does not prescribe the method or form by which such document may be sealed by electronic means, that requirement is met if the document indicates that It is required to be under seal and it includes the advanced electronic signature of the person by whom it is required to be sealed.

(4)  Where any law requires or permits a person to send a document or information by registered or certified post or similar service, that requirement is met if an electronic copy of the document or information is sent to the South African Post Office Limited, is registered by the said Post Office and sent by that Post Office to the electronic address provided by the sender.

List of Respondents to the Issue Paper

· Adv GTS Eiselen (In re Nedbank);

· The National Commissioner, South African Police Service (SAPS);

· Roux Krige of the National Prosecuting Authority (NPA);

· Raj Daya, CEO of the Law Society of South Africa (LSSA);

· Legal Aid, South Africa;

· Infology, an information management service provider with a specialised focus on legal risk management;

· Mark Heyink of Information Governance (Pty) Ltd; and

· Stephen Mason, general editor of the comparative law volumes Electronic Evidence: Disclosure, Discovery & Admissibility (2007) and International Electronic Evidence (2008).

List of Respondents to the Discussion Paper

· Banking Association of South Africa

· Capitec Bank

· Law Society of South Africa (LSSA);

· Legal Aid, South Africa;

· Mark Heyink