, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
(1) With reference to the facts of the question, fully discuss originality and authenticity as
requirements for the admissibility of documentary evidence.
In the context of the scenario, the photographs and voice recordings are digital documents. The
general rule is that the original document must be produced in court and must be authenticated
(proved to be what it purports to be).¹
Originality
The general rule, often referred to as the "best evidence rule", dictates that the contents of a
document must be proved by the original document itself unless an exception applies.² The original
of the evidence in this case is the cell phone, which was stolen and is unavailable. A document is
considered lost when it cannot be found despite a proper search, and secondary evidence may then be
allowed.³
The state could argue that the cell phone is "lost". If this is accepted, secondary evidence, such as the
photographs and recordings downloaded to the laptop and copied to a memory stick and CD, could
be admissible.⁴ The court must be satisfied that a proper search for the original was made. The mere
fact that the phone was stolen before trial does not automatically justify the use of secondary
evidence.⁵
The state will need to prove why the original (the cell phone) is unavailable and that it made a
reasonable effort to locate it. In the absence of proof of loss and a proper search, the copies would be
inadmissible.⁶
Authenticity
Authenticity means that the document is what it purports to be. This is usually proved by a witness
who can identify the document.⁷ A person who found a document in the possession of an opponent
can authenticate it, but that is not applicable here.
The best person to authenticate the photographs and recordings would be the original author or
recorder, Mr X himself. He can testify that he created the images and recordings at the scene, that
they have not been tampered with, and that the copies on the CD are a true and accurate
representation of the originals. The authenticity of these documents can be proved by Mr X, who is
available and will be testifying. The fact that the cell phone is stolen does not negate his ability to
authenticate the recordings by identifying them.⁸
¹ Schwikkard, Principles of Evidence (2023) 431.
² Schwikkard (2023) 432.
³ Schwikkard (2023) 433.
⁴ Schwikkard (2023) 433.
⁵ Singh v Govender Brothers Construction 1986 (3) SA 613 (N) 617, discussed in Schwikkard (2023) 433.
⁶ LEV3701 Study Guide (2018) 45-46.
⁷ Schwikkard (2023) 434.
⁸ Schwikkard (2023) 434.
(1) With reference to the facts of the question, fully discuss originality and authenticity as
requirements for the admissibility of documentary evidence.
In the context of the scenario, the photographs and voice recordings are digital documents. The
general rule is that the original document must be produced in court and must be authenticated
(proved to be what it purports to be).¹
Originality
The general rule, often referred to as the "best evidence rule", dictates that the contents of a
document must be proved by the original document itself unless an exception applies.² The original
of the evidence in this case is the cell phone, which was stolen and is unavailable. A document is
considered lost when it cannot be found despite a proper search, and secondary evidence may then be
allowed.³
The state could argue that the cell phone is "lost". If this is accepted, secondary evidence, such as the
photographs and recordings downloaded to the laptop and copied to a memory stick and CD, could
be admissible.⁴ The court must be satisfied that a proper search for the original was made. The mere
fact that the phone was stolen before trial does not automatically justify the use of secondary
evidence.⁵
The state will need to prove why the original (the cell phone) is unavailable and that it made a
reasonable effort to locate it. In the absence of proof of loss and a proper search, the copies would be
inadmissible.⁶
Authenticity
Authenticity means that the document is what it purports to be. This is usually proved by a witness
who can identify the document.⁷ A person who found a document in the possession of an opponent
can authenticate it, but that is not applicable here.
The best person to authenticate the photographs and recordings would be the original author or
recorder, Mr X himself. He can testify that he created the images and recordings at the scene, that
they have not been tampered with, and that the copies on the CD are a true and accurate
representation of the originals. The authenticity of these documents can be proved by Mr X, who is
available and will be testifying. The fact that the cell phone is stolen does not negate his ability to
authenticate the recordings by identifying them.⁸
¹ Schwikkard, Principles of Evidence (2023) 431.
² Schwikkard (2023) 432.
³ Schwikkard (2023) 433.
⁴ Schwikkard (2023) 433.
⁵ Singh v Govender Brothers Construction 1986 (3) SA 613 (N) 617, discussed in Schwikkard (2023) 433.
⁶ LEV3701 Study Guide (2018) 45-46.
⁷ Schwikkard (2023) 434.
⁸ Schwikkard (2023) 434.
