ELECTRONIC EVIDENCE AND RELATED MATTERS
WHAT IS ELECTRONIC EVIDENCE?
Electronic evidence is also often described as digital evidence/data and is made up of data
that is in a format created or stored on an electronic device such as a computer or the
Internet. Examples of digital data are digital photographs, CCTV footage, electronic
documents, CDs, DVDs, MP3s and digital broadcast radio.
HOW ADMISSABLE IS ELECTRONIC EVIDENCE?
The courts generally adopt a conservative and exclusionary approach to this type of
evidence most probably because such evidence is easy to manipulate or alter. The
admissibility of electronic evidence is constrained by the requirements for admissibility
applicable to hearsay and documentary evidence. In order to be admissible electronic
evidence needs to be relevant, otherwise admissible e.g. it must not be hearsay AND it must
overcome the rules/requirements relating to authenticity and the production of the original
version (as with documentary evidence). The ELECTRONIC COMMUNICATIONS AND
TRANSACTIONS ACT 25 OF 2002 (ECT Act) regulates this type of evidence in conjunction
with the CPEA and the CPA. The ECT Act repealed the Computer Evidence Act.
STUDENTS ARE TO READ THE TEXT BOOK REGARDING THE POSTION REGARDING THIS
TYPE OF EVIDENCE BEFORE THE ECT Act!!!!!!!!!!
Sections 221 and 236 of the CPA did to a certain extent deal with computer generated
evidence/documents. However there was much controversy regarding whether a computer
printout could actually be described as a document and whether it would withstand the
Authentication process. For a document to be Authenticated it meant that the computer
printout for example must be accompanied by an authenticating affidavit and other
supplementary affidavits necessary to establish the reliability of the information contained
in the printout.
Section 15 of the ECT Act regulates the admissibility and evidential weight of data messages
and provides in essence that such evidence is admissible and Section 15(3) of the ECT Act
sets out guidelines when assessing the evidential weight of such evidence.
In Ndlovu v Minister of Correctional Services 2004 (6) All SA 165 (W) the court remarked
that Section 15 facilitates the admissibility of Electronic evidence by excluding evidence
rules which deny the admissibility of electronic evidence purely on the basis of its electronic
origin. The court distinguished between two types of electronic evidence:
(1) evidence where the probative value of the information in a data message depends upon
the credibility of a natural person other than the person giving the evidence Section 1 of the
Page 1 of 9
, ECT Act is unlikely to override the rules applicable to Hearsay Evidence as contained in
Section 3 of the CPEA;
(2) Where the probative value of the evidence depends upon the credibility of the
computer/device because the information was processed by the computer/device Section 3
of the CPEA will not be applicable because strictly speaking the probative value of such
evidence does not depend on the credibility of any other person.
In S v Ndiki 2008 (2) SACR 252 (Ck) the court also opined that Section 15 of ECT Act
distinguished between two types of evidence:
(1) Evidence that depends solely on the reliability and accuracy of the computer itself and its
operating systems. This evidence constitutes real evidence and is admissible in terms of
Section 15 (2) of the ECT Act;
(2) Where the computer evidence is recorded data, the probative value of which depends
on a person not called as a witness to testify, then such evidence amounts to Hearsay
evidence and is subject to the rules as contained in the Law of Evidence Amendment Act,
the CPEA or the CPA, whichever is applicable to the case being dealt with.
In this case it was eluded to that one should closely examine the evidence in issue and
establish what type of evidence it is and what the requirements for admissibility are for this
type of evidence.
When gathering this type of evidence it is important that evidence be expertly collected and
preserved in a manner that renders it useful for trial purposes and in a constitutional
manner, with the engagement of appropriate forensics experts.
STUDENTS ARE REQUIRED TO READ THIS CHAPTER IN SCHWIKKARD or OXFORD TO GET A
FULLER UNDERSTANDING OF THIS TYPE OF EVIDENCE.
Page 2 of 9
WHAT IS ELECTRONIC EVIDENCE?
Electronic evidence is also often described as digital evidence/data and is made up of data
that is in a format created or stored on an electronic device such as a computer or the
Internet. Examples of digital data are digital photographs, CCTV footage, electronic
documents, CDs, DVDs, MP3s and digital broadcast radio.
HOW ADMISSABLE IS ELECTRONIC EVIDENCE?
The courts generally adopt a conservative and exclusionary approach to this type of
evidence most probably because such evidence is easy to manipulate or alter. The
admissibility of electronic evidence is constrained by the requirements for admissibility
applicable to hearsay and documentary evidence. In order to be admissible electronic
evidence needs to be relevant, otherwise admissible e.g. it must not be hearsay AND it must
overcome the rules/requirements relating to authenticity and the production of the original
version (as with documentary evidence). The ELECTRONIC COMMUNICATIONS AND
TRANSACTIONS ACT 25 OF 2002 (ECT Act) regulates this type of evidence in conjunction
with the CPEA and the CPA. The ECT Act repealed the Computer Evidence Act.
STUDENTS ARE TO READ THE TEXT BOOK REGARDING THE POSTION REGARDING THIS
TYPE OF EVIDENCE BEFORE THE ECT Act!!!!!!!!!!
Sections 221 and 236 of the CPA did to a certain extent deal with computer generated
evidence/documents. However there was much controversy regarding whether a computer
printout could actually be described as a document and whether it would withstand the
Authentication process. For a document to be Authenticated it meant that the computer
printout for example must be accompanied by an authenticating affidavit and other
supplementary affidavits necessary to establish the reliability of the information contained
in the printout.
Section 15 of the ECT Act regulates the admissibility and evidential weight of data messages
and provides in essence that such evidence is admissible and Section 15(3) of the ECT Act
sets out guidelines when assessing the evidential weight of such evidence.
In Ndlovu v Minister of Correctional Services 2004 (6) All SA 165 (W) the court remarked
that Section 15 facilitates the admissibility of Electronic evidence by excluding evidence
rules which deny the admissibility of electronic evidence purely on the basis of its electronic
origin. The court distinguished between two types of electronic evidence:
(1) evidence where the probative value of the information in a data message depends upon
the credibility of a natural person other than the person giving the evidence Section 1 of the
Page 1 of 9
, ECT Act is unlikely to override the rules applicable to Hearsay Evidence as contained in
Section 3 of the CPEA;
(2) Where the probative value of the evidence depends upon the credibility of the
computer/device because the information was processed by the computer/device Section 3
of the CPEA will not be applicable because strictly speaking the probative value of such
evidence does not depend on the credibility of any other person.
In S v Ndiki 2008 (2) SACR 252 (Ck) the court also opined that Section 15 of ECT Act
distinguished between two types of evidence:
(1) Evidence that depends solely on the reliability and accuracy of the computer itself and its
operating systems. This evidence constitutes real evidence and is admissible in terms of
Section 15 (2) of the ECT Act;
(2) Where the computer evidence is recorded data, the probative value of which depends
on a person not called as a witness to testify, then such evidence amounts to Hearsay
evidence and is subject to the rules as contained in the Law of Evidence Amendment Act,
the CPEA or the CPA, whichever is applicable to the case being dealt with.
In this case it was eluded to that one should closely examine the evidence in issue and
establish what type of evidence it is and what the requirements for admissibility are for this
type of evidence.
When gathering this type of evidence it is important that evidence be expertly collected and
preserved in a manner that renders it useful for trial purposes and in a constitutional
manner, with the engagement of appropriate forensics experts.
STUDENTS ARE REQUIRED TO READ THIS CHAPTER IN SCHWIKKARD or OXFORD TO GET A
FULLER UNDERSTANDING OF THIS TYPE OF EVIDENCE.
Page 2 of 9
