Getting the most out of s11D

14 March 2011

Companies turn to electronic storage and retention of documents with increasing frequency. The question then arises whether the law of evidence has developed sufficiently to provide for its admissibility as evidence in court in lieu of producing the original document.

Despite the speed at which technology is advancing, our courts have been slow to recognise the electronic retention of documents. In 1972 the Appellate Division declined to accept into evidence computer printouts because the Civil Proceedings Evidence Act1 only provided for the admissibility of a statement made by a person in a document. The court commented that, “a computer is not a person.” Years later the courts accept the prevalence of computers, recognising that, “computers are ubiquitous in the society in which we live.”

By 2007 the courts appeared more comfortable with technological advancements being made when it was held in S v Ndiki arid Others 12007] 2 All SA /85 (Clc) that it is often too readily assumed that, because the computer and the technology it represents is a relatively recent invention and subject to continuous development, the law of evidence is incapable of or inadequate to allow for evidence associated with technology to be admissible in legal proceedings.

The admissibility of electronic evidence is constrained by the requirements of admissibility attaching to documentary or hearsay evidence. It must be relevant, otherwise admissible and must pass scrutiny in terms of its authenticity and the ailes relating to production of the original version.

The law of evidence provides that the contents of records must be proved by the best evidence available. Best evidence in respect of documentary evidence is the production of the original document itself. Where there is no original document, the court will accept other evidence of the document, if it is satisfied diat the original document in fact existed, that is has been lost or destroyed, and that a reasonable explanation for its non-production has been given. In Barclays Western Bank v Creser 1982 (2) SA 104 (T) the systematic destruction of documents in the process of converting to an electronic storage system was held to be a reasonable explanation. In this case a copy of the contract was accepted as evidence in spite of the fact that the claimant had deliberately destroyed the original contract. The court found that, in cases where the original document is fraudulently destroyed widi a view to litigation, the court will consider refusing the submission of a copy.

In an attempt to keep pace with technological advances the Electronic Communications and Transactions Act 2002 [the ECT Act] was introduced in part to allow for the admissibility of electronic evidence. The ECT Act provides for the admissibility and evidential weight of a data message as electronic evidence. The ECT Act provides that a data message will not offend the best evidence rule on the ground that it is not in its original form. It is clear that it sets out to facilitate rather than inhibit the admissibility of data messages as electronic evidence.

A data message is defined in si of the ECT Act as “data generated, sent, received or stored by electronic means and includes a voice, where the voice is used in an automated transaction, and a stored record." Data is defined as the "electronic representation of information.”

s15 of the ECT Act provides for the admissibility and evidential weight of data messages. It facilitates the admissibility of electronic evidence by excluding evidence rules which deny admissibility based on the electronic origin of the evidence. The evidence must still be relevant and otherwise admissible if it is to be received, the best evidence available must be produced and its authenticity must still be proved.

It was held in Ndlovu v Minister o/Correctional Services and Another [2006] 4 All SA 165 (W) that s15 distinguishes between two types of electronic evidence. On the one hand there is evidence which depends solely upon the reliability and accuracy of the computer itself and its operating systems and which constitutes real evidence. On the other hand, where the computer evidence records data, the evidential weight of which depends on the evidence of a person not called as a witness, then it is hearsay evidence. The admissibility of hearsay evidence is governed by the Law of Evidence Amendment Act4, the Civil Proceedings Evidence Act and Criminal Procedure Act.

It appears that the courts have come full circle on the issue of electronic storage. A Texan court held that “to mitigate the high costs associated with electronic document storage, the court will permit defendants to delete electronic records in the ordinary and usual course of business; provided, however that hard copy records be made and kept of any and all electronic records.”

It must be borne in mind that, while electronic evidence is accepted by the courts, computers are not infallible and the dangers inherent in storing this type of evidence must be acknowledged and the necessary safeguards put into place by businesses that seek to store their records electronically.

Norton Rose South Africa (incorporated as Deneys Reitz Inc) joined Norton Rose Group on 1 June 2011.