Weekly Lecture/Comment: Lecture 3 (Learning

Units 7 and 8)
In the next two learning units you will learn more about the presentation and
admissibility of documentary evidence and other evidence closely related to
documentary evidence.

Learning Unit 7
Note that there is, like is often the case with the law of evidence, a rule and exceptions
to the rule. A document must be original and must be authentic before it can be
presented as evidence in court, but there are certain exceptions to both requirements.
Not only must you know the meaning of these requirements, but you must know and
study the exceptions. Also note that a document can take on many forms. You must
therefore ensure that you understand the definition of a document, since you must be
able to identify any question relating to documentary evidence in the exam. Lastly, it is
very important that you understand what “Discovery, inspection and production” of
documents means (see paragraph 7.7).

Learning Unit 8
It is important that you read the relevant sections from Schwikkard and Van der Merwe
and the ECT Act as indicated in paragraph 8.1. Also note that you must study the
provisions of s 15 of the ECT Act. Also ensure that you carefully read the decisions of S
v Ndiki and S v Brown in the casebook.

Orientation

The presentation of certain products of modern technology as evidence, such as photos

and video recordings raise certain important questions: Should these types of evidence
be treated as documentary evidence (with stricter requirements for admissibility), or
should they be real evidence (with much less stricter requirements for admissibility)?
The following explanation will assist with this differentiation:

Where such photo or video is in analogue or normal format, it will constitute real
evidence where the physical photograph itself is central to a case, either because, for
example, it has fingerprints on its surface (the subject of the photograph being
immaterial) or because it is a very rare historical photograph which was stolen from a
museum, or because it has been adjudged to be pornographic and in the possession of
someone in contravention of a statutory measure.

The situation is arguably quite different when the photograph or video is simply used to
represent something that is the subject matter of the case. It then serves a documentary
function and both the dictionary and judicial definitions of “document” are wide enough
to cover it (see the learning unit on documentary evidence). The wording of Rules 35(1)
and 36(4) of the Supreme Court Rules also seems to imply that a photograph may be a
document.
“Electronic evidence”

Once a photograph, a letter, a picture or even a video has been stored in a computer,
the format changes from analogue (much the same format as the original) to digital. To
be stored in digital format, the entire content of the file or document is broken up into
electronic bits and bytes (with eight bits constituting a byte) and the content is then said
to be stored “digitally”. The digital format is quite advantageous in terms of storage
space and speed of communication, but the traditional rules of evidence have struggled
to keep up with and classify this evidence. That is why the present learning unit is
entitled “Evidence of uncertain classification”.

Fortunately, the legislature tackled this problem head-on with the ECT Act. Although the
Act also covers electronic contracting, privacy and computer crime (to mention but a few
topics), we shall be concentrating on the evidential aspects, dealt with in sections 11 to
20 of this Act, as well as the concept of a “data message”, as defined in section 1. The
concept of a data message is central to the Act, because a data message is the digital
alternative to the traditional evidential concepts of statement, object or document. The
Act also covers problems such as the best-evidence rule and electronic signatures
(traditionally part of documentary evidence), as well the admissibility and weight of
evidence in digital format. Electronic signatures are also quite important because they
replace those made in analogue format by means of pen and paper, making use of an
electronic apparatus connected to the computer. Note that, in section 1 of the Act, the
definitions of “electronic signature” and “data message” both refer to “data” as the basic
component.

It is important that you understand that the ECT Act allows for the admissibility of
evidence derived from a computer and other digital device – see sections 11 and 15.
Section 15 also stipulates factors that a court must consider in assessing the evidential
weight of a data message.

Note that although the ECT Act allows for the admissibility of data messages, the
ordinary South African law on the admissibility of evidence must still be applied,
depending on the broader category of evidence the electronic evidence falls under.
Where a human, for example, had also been involved in creating the data message (or
machine-based evidence) such evidence will be treated as documentary evidence and
the stricter requirements for documentary evidence must be complied with. These
requirements, however, are qualified by certain provisions of the ECT Act applicable to
electronic evidence. (See s 14 of the ECT Act that explains how the “originality”
requirement for documentary evidence must be dealt with in the case of data
messages. Also see section 15(1)(b) that states that the rules of evidence must not be
applied to deny the admissibility of a data message in evidence if it is the best evidence
that the person adducing it could reasonably be expected to obtain, on the grounds that
it is not its original form). In addition, data messages or electronic evidence could also
possibly be hearsay evidence, which means that the requirements for the admissibility
of hearsay must also be considered. This would be where the person who created the
data message (documentary evidence) cannot be called to testify. See S v Ndiki where
the judge saw computer print-outs that were generated by computer following human
intervention as hearsay evidence. Print-outs produced without human intervention were
regarded as real evidence. The admissibility of such real evidence would be dependent
on the accuracy and reliability of the computer, its operating system and its process.

Self-evaluation

It is important that you do the activities and questions for self-evaluation at the end of
the learning unit. Also answer the following question on your own:

The accused is charged with murder. The state’s principal witness stands to testify that
she had seen the accused shoot the deceased and that she had also see something fall
from the accused’s pocket during the shooting. She will also testify that she returned to
the scene after the accused had left and had retrieved the object and discovered that it
was a cellphone. She will testify that she gave the phone to a member of the gang to
which her partner belonged. The phone was eventually handed over to the police. Data
retrieved from the phone contain images that could be used in the prosecution of the
accused in that they could prove that the phone belonged to the accused. At the trial the
defence objects to the admissibility of this evidence on various grounds and also claims
that the accused had lost his phone the day before the shooting and that the phone
before court was not his. Fully discuss the following issues with reference to cases and
legislation where applicable:

1 Would you agree with the prosecution that the evidence is real evidence and that
there are no special requirements for admissibility? (5)
2 If it is accepted that the images are documentary evidence, fully discuss the
relevance of sections 14 and 15 of the Electronic Communications and
Transactions Act 25 of 2002 as far as the admissibility of the evidence is
concerned. Start your answer by explaining the meaning of a “data message”. Do
these sections render data messages admissible as evidence without further ado
or are there also other requirements for admissibility that apply?
(10)
3 Fully discuss the relevance of the common law requirements for the admissibility
of documentary evidence with reference to the above set of facts and the ECT Act.
(10)
4 How must the court approach the identification evidence in the case? Explain with
reference to S v Mthetwa 1972 (3) SA 766 (A). (5)

The solution can be found by applying the principles explained in S v Brown – you must
compile your own model answer. Question 4 deals with the evaluation of evidence and
is included to show how different principles of the law of evidence are often found in one
set of facts.