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E-Discovery in
South African Law
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CONTENTS

1. Introduction
2. Problem Statement
3. Definitions
4. Facts
5. Applicable Law
6. E-Discovery in other Countries
7. Application
8. Conclusion
BIBLIOGRAPHY
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THE GLOBAL NATURE OF COMPUTER TECHNOLOGY AND THE

CHALLENGES FACED IN E-DISCOVERY IN CIVIL PRACTICE.
1. Introduction
In a post-industrial society information and communications technology can be a
dynamic asset provided it is placed in skilled hands and are used properly in terms
of constitutionally fair principles.1 The decision how much value should be attached
to electronically and digitally stored information is a problem in the information and
communications era. The only field of law which can verify facts is the law of
evidence.2
During discovery, the evidence-collecting and fact-gathering middle-step of
litigation, has often posed difficulties in cross-border litigation.3 Different countries
have different legal systems, which typically have different perceptions of privacy,
different views on the amount of information discoverable in civil proceedings, and
different evidentiary standards with their own set of procedure. Trials that involve
litigants from different countries or between litigants from the same nation that
require evidence in a second state compound these differences.4 As we enter an
age in which most evidence is in the form of electronically-stored information (ESI),
the difficulties have become more complex. The very technology that makes it easier
to transfer evidentiary data from one country to another also makes the process
more challenging in the discovery of such data. Because modern discovery involves
much more data than was previously the case, the flood of information heightens
concerns regarding the cost and duration of discovery, as well as the protection of
litigants privacy and the privacy of third parties.5

1 Van der Merwe DP et al ICT Law (2016) 107-147.

2 Van der Merwe DP et al ICT Law (2016) 107-147.
3 See Blackmer v. United States, 284 U.S. 421, 442 (1932) (requiring a U.S. citizen to
return from France to the United States to present testimony as a witness in a
criminal trial in the U.S.).
4 See, Bodner v. Paribas, 202 F.R.D. 370, 375–76 (E.D.N.Y. 2000) (holding
that an American court did not have to recognize a French blocking statute due to
either personal privacy or national interests); Strauss v. Credit Lyonnais, S.A., 242
F.R.D. 199, 227–28 (E.D.N.Y 2007) (granting plaintiff’s discovery request for financial
records relating to terrorist financing).
5 For example, many nations have strict data-protection laws, and some European
nations have enacted blocking statutes that proscribe compliance with American
courts’ discovery orders. E.g. CODE PÉNAL [C. PÉN.] loi no. 90-538, art. 1A (Fr.);
SCHWEIZERISCHES STRAFGESETZBUCH [STGB], CODE PÉNAL SUISSE [CP],
CODICE
PENALE SVIZZERO [CP] [CRIMINAL CODE] art. 273 (Switz.); Pres. Dec. No. 1718
(Phil.).
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2. Problem statement
Computer technology is global in nature and presents a challenge to countries
worldwide to effectively address e-discovery. Critically discuss the legal measures
adopted by South Africa and other countries to effectively address the challenges
posed by e-discovery in civil practice.

3. Definitions6
Advanced electronic signature means an electronic signature which results from a
process which has been accredited by the Authority as provided for in the ECT act7.
Authentication service provider means a person whose authentication products or
services have been accredited by the Accreditation Authority.
Cryptography product means any product that makes use of cryptographic
techniques and is used by a sender or recipient of data messages for the purposes
of ensuring-
(a) that such data can be accessed only by relevant persons;
(b) the authenticity of the data;
(c) the integrity of the data; or
(d) that the source of the data can be correctly ascertained.
Data means electronic representations of information in any form.
Data message means data generated, sent, received or stored by electronic means
and includes-
(a) voice, where the voice is used in an automated transaction; and
(b) a stored record.
Electronic communication means a communication by means of data messages.
Electronic signature means data attached to, incorporated in, or logically associated
with other data and which is intended by the user to serve as a signature.
E-mail means electronic mail, a data message used or intended to be used as a
mail message between the originator and addressee in an electronic
communication.
Information system means a system for generating, sending, receiving, storing,
displaying or otherwise processing data messages and includes the Internet.

6 Definitions as in The Electronic Communications and Transactions Act 25 of 2002

7 The Electronic Communications and Transactions Act 25 of 2002 section 37
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Personal information means information about an identifiable individual, including,

but not limited to-
(a) information relating to the race, gender, sex, pregnancy, marital status, national,
ethnic or social origin, colour, sexual orientation, age, physical or mental health,
well-being, disability, religion, conscience, belief, culture, language and birth of the
individual;
(b) information relating to the education or the medical, criminal or employment
history of the individual or information relating to financial transactions in which the
individual has been involved;
(c) any identifying number, symbol, or other particular assigned to the individual; (d)
the address, fingerprints or blood type of the individual;
(e) the personal opinions, views or preferences of the individual, except where they
are about another individual or about a proposal for a grant, an award or a prize to
be made to another individual;
(f) correspondence sent by the individual that is implicitly or explicitly of a private or
confidential nature or further correspondence that would reveal the contents of the
original correspondence;
(g) the views or opinions of another individual about the individual;
(h) the views or opinions of another individual about a proposal for a grant, an award
or a prize to be made to the individual, but excluding the name of the other individual
where it appears with the views or opinions of the other individual; and
(i) the name of the individual where it appears with other personal information
relating to the individual or where the disclosure of the name itself would reveal
information about the individual,
but excludes information about an individual who has been dead for more than 20
years.
TCP/IP means the Transmission Control Protocol Internet Protocol used by an
information system to connect to the Internet.
'web page' means a data message on the World Wide Web;
Web site means any location on the Internet containing a home page or web page.
World Wide Web means an information browsing framework that allows a user to
locate and access information stored on a remote computer and to follow references
from one computer to related information on another computer.
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4. Facts8
During discovery the object is to ensure that both parties are made aware of all the
available documentary evidence before the trial commences in order to narrow the
issues and eliminate undeniable points of debate9. In this computer and information
age, most of the available documentary evidence is largely in electronic form and
discovery of evidence before the trial will be incomplete if it does not include
electronic documents. Such electronically stored information is generally referred to
by the abbreviation ESI. Specific provision for the discovery of ESI has been made
in foreign jurisdictions by issuing practice directions or by amending the rules of
court. Such amendments have been introduced either by expanding the definition
of ‘document’ to include electronic information (as was done in the United Kingdom
(UK), Ireland, Australia and Ontario) or by inserting specific provisions for the
discovery of electronic information (as was done in Nova Scotia and the United
States (US)).10 There are many pitfalls in the discovery of electronic stored
documents. The main focus of this paper is on the evidentiary admissibility of
computer generated and electronic stored documents.

5. Applicable law
5.1 Legistation
5.1.1 The Electronic Communications and Transactions Act, Act 25 of 2002;
Section 11 Legal recognition of data messages
(1) Information is not without legal force and effect merely on the grounds that it is
wholly or partly in the form of a data message.
(2) Information is not without legal force and effect merely on the grounds that it is
not contained in the data message purporting to give rise to such legal force and
effect, but is merely referred to in such data message.
(3) Information incorporated into an agreement and that is not in the public domain
is regarded as having been incorporated into a data message if such information
is-
(a) referred to in a way in which a reasonable person would have noticed
the reference thereto and incorporation thereof; and
(b) accessible in a form in which it may be read, stored and retrieved by the
other party, whether electronically or as a computer printout as long as
such information is reasonably capable of being reduced to electronic form
by the party incorporating it.

Section 12 Writing.

8 Van Dorsten J "Discovery of electronic documents and attorneys’ obligations" 2012 De

Rebus 34-36.
9 Hall v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 195 (C) at 199I – J.
10 Van Dorsten J "Discovery of electronic documents and attorneys’ obligations" 2012 De
Rebus 34-36.
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(1) A requirement in law that a document or information must be in writing is met if

the document or information is-
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference.

Section 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);
(b) and 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.

Section 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.

Section16 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.
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Section17 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.

Section 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.

5.1.2 Rule 35(15) of Uniform Rules

For the purpose of rules 35 and 38 a tape recording includes a sound track, film,
magnetic tape, record or any other material on which visual images, sound or
other information can be recorded.

5.1.3 Rule 23(1) of Magistrate’s Courts Rules

Any party to any action may require any other party thereto, by notice in writing,
to make discovery on oath within 20 days of all documents and tape, electronic,
digital or other forms of recordings relating to any matter in question in such action,
whether such matter is one arising between the party requiring discovery and the
party required to make discovery or not, which are or have at any time been in the
possession or control of such other party.
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5.1.4 The Criminal Procedure Act, Act 51 of 1977

In criminal matters electronic evidence is governed by the Criminal Procedure Act
sections 221 and section 222.
Section 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. Section 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.

5.1.5 The Civil Proceedings Evidence Act, Act 25 of 1965

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The Civil Proceedings Act11 is confined to civil matters and electronic evidence is
governed by the Criminal Procedure Act12

5.2 Case Law

(1) Le Roux v Viana NO and Others 2008 (2) SA 173 (SCA)

This case deals with whether provisions in the Insolvency Act13 excludes ‘books and
documents’ in electronic form in the possession of a third party.

(2) Narlis v South African Bank of Athens 1976 (2) SA 573 (A)
In this case the bank sought to enter evidence extracted from its computerised
records, to show the existence of an overdraft.

(3) Ndlovu v Minister of Correctional Services and Another 2006 4 All SA 165 (W)
In Ndlovu the computer generated documents where allowed because the
respondent failed to object to the inclusion into evidence and even used it as
reference, this case failed to give clarity on section 15 of ECT.

(4) S v Ndiki and Others (2008) 2 SACR 252

Ndiki deals with computer generated documents that are created by computer and
documents that are generated by computer but which must be proven by the
statement of a person.

6. Other Countries
6.1 The United States of America
The discovery of ESI is specifically provided for in the US Federal Rules of Civil
Procedure. In terms of the general provisions a party may request the production of
any designated electronically stored information stored in any medium from which
information can be obtained either directly or after it has been translated into a
reasonably usable form by the responding party.14

11 The Civil Proceedings Act, Act 25 of 1965.

12 The Criminal Procedure Act, Act 51 of 1977 sections 221 and 222.
13 Insolvency Act, Act 24 of 1936 section 69(3).
14 US Federal Rules of Civil Procedure rule 34(a).
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Rule 34(a)(1)(A)15 of the rules provides:

‘ (a) In general. A party may serve on any other party a request within the scope
of rule 26(b) –
(1) to produce and permit the requesting party or its representative to
inspect, copy, test, or sample the following items in the responding party’s
possession, custody, or control –
(A) any designated documents or electronically stored information – including
writings, drawings, graphs, charts, photographs, sound recordings, images, and
other data or data compilations – stored in any medium from which information
can be obtained either directly or, if necessary, after translation by the
responding party into a reasonably usable form.

6.2 The United Kingdom

The UK Civil Procedure Rules provide, in part 31, for the disclosure and inspection
of documents. The word ‘document’16 is defined to mean ‘anything in which
information of any description is recorded’. A detailed explanation of what the
definition of ‘document’ covers is contained in para 2A.1 of Practice Direction 31,
which states:
Rule 31.4 contains a broad definition of a document. This extends to electronic
documents, including e-mail and other electronic communications, word processed
documents and databases. In addition to documents that are readily accessible
from computer systems and other electronic devices and media, the definition
covers those documents that are stored on servers and back-up systems and
electronic documents that have been “deleted”. It also extends to additional
information stored and associated with electronic documents known as metadata.

The English courts have warned that a failure to comply with the rules relating to
electronic disclosure constitutes gross incompetence17, Brown J stated at para 71:
It might be contended that CPR 31PD 2A and electronic disclosure are little known
or practised outside the Admiralty and Commercial Court. If so, such myth needs
to be swiftly dispelled when over 90% of business documentation is electronic in
form. The practice direction is in the Civil Procedure Rules and those practising in
civil courts are expected to know the rules and practise them; it is gross
incompetence not to.

6.3 Germany
German legislation on e-discovery addresses three areas of application18 :
(1) proof of digital signatures
(2) building a required country-wide security infrastructure; and
(3) guaranteeing the rights of participants to electronic and legal activities.

15 US Federal Rules of Civil Procedure.

16 UK Civil Procedure Rules rule 31.4.
17 Earles v Barclays Bank Plc [2009] EWHC 1 (Mercantile Court).
18 Van der Merwe DP et al ICT law (2016) ch 5 p107-147.
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6.4 Ireland
The Rules of the Superior Courts of Ireland were amended in 2009 to provide for
the discovery or disclosure of ESI in the new rule 12 of Order 31. The word
‘documents’ is defined as follows: ‘“[D]ocuments”, for the purposes of this rule and
rule 29, includes all electronically stored information, and the reference to “business
documents” in rule 20 shall be construed accordingly.’ 19

6.5 Australia
The Chief Justice of the Federal Court of Australia issued Practice Note CM 6 –
Electronic technology in litigation on 25 September 2009. The practice note is
applicable in proceedings where the court has ordered that
discovery be given of documents in an electronic format’ or that the hearing must be
conducted using documents in an electronic format.20
It is clear that the word ‘document’ must be interpreted to include ESI.
Technical expressions used in this practice note and related materials are defined in the
glossary.21

7 Application
The discovery of electronic and digital forms of recordings is provided for in
rule 23 of the Rules Regulating the Conduct of the Proceedings of the Magistrates’
Courts of South Africa, which came into operation during 2010.
Rule 23 is does not adequately provide for the discovery of ESI. The amended rules
in foreign courts makes provision for the discovery of electronically ‘stored’
information, only for electronic and digital forms of ‘recordings’. A ‘recording’ is
defined as a ‘recorded broadcast or performance’ or ‘a disc or tape on which sounds
or visual images have been recorded’.22 Rule 23 focuses primarily on the storage
medium instead of the electronic information itself and the use of the word ‘stored’

19 Rules of the Superior Courts of Ireland rule 12(13).

20 Practice Note CM 6, para 1.1 of the Federal Court of Australia.
21 Paragraph 1.4 of Practice Note CM 6.
22 http://oxforddictionaries.com/definition/english/recording?q=recording, accessed
20-9-2012.
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would be prefered, which in relation to information is defined to mean retained or

entered.23
Examples of the electronic documents that are discoverable, for example e-mails
with their attachments, databases, word processing files, spreadsheets, the
metadata of electronic documents as well as information on servers and back-up
systems was not given as was done in the UK.

The Uniform Rules of Court of the South African High Court do not contain any
specific provision for the discovery of electronically stored information in High Court
litigation. Rule 35(1)24 provides for the discovery of ‘documents and tape
recordings’. The word ‘document’ is not defined in the rules and, accordingly, bears
its ordinary meaning25, in which Mlambo JA stated:
The Concise Oxford English Dictionary (10th edition, revised) defines … a
document as “a piece of written, printed or electronic matter that provides
information or evidence or that serves as an official record.

The meaning of ‘document’ was also interpreted in the context of the Insolvency
Act26, which provides for the seizure of books and documents. The court found that
books and documents stored on a computer hard drive are subject to seizure under
a warrant in terms of that section27. During discovery the same extended meaning
of ‘document’ is also applicable. Relevance for discovery purposes are the following
remarks by Mlambo JA:
It can hardly be suggested, as counsel for the appellants submitted, that we
should not take judicial notice of the technological advancements regarding
electronic data creation, recording and storage because this was unheard of
in 1936 when the Insolvency Act was passed.

The expression ‘tape recordings’ is defined in rule 35(15)28 to include ‘a sound track,
film, magnetic tape, record or any other material on which visual images, sound or
other information can be recorded’. The definition of “tape recording” is wide enough
to encompass all the different kinds of material on which visual images, sound and

23 http://oxforddictionaries.com/definition/english/store?q=stored#store__9, accessed 20-9-

2012.
24 The Uniform Rules of Court of the South African High Court.
25 Le Roux and Others v Viana NO and Others 2008 (2) SA 173 (SCA) par 10.
26 Insolvency Act, Act 24 of 1936 section 69(3).
27 Insolvency Act, Act 24 of 1936 section 69(3).
28 The Uniform Rules of Court of the South African High Court.
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other information can be stored. However, since the definition renders the material
on which the information is recorded susceptible to discovery, it does not cover the
information contained in a computer database.29
The tapes on which a company backed up its electronic information were found to
be discoverable.30
The current wording in South African law provided for in rule 35(1)31 does not
sufficiently provide for discovery of information that has primarily been created,
stored and retrieved in electronic form and it is clear amendments are necessary to
remedy this. Where discovery rules are unclear or inadequate the courts have
exercised their inherent powers to ensure that proper discovery takes place. There
is a need to evolve with the times32 and it was held by Fennelly J;
The rules of court have not been adapted so as to make their objectives
conformable to modern technology. The courts have, nonetheless, been astute to
ensure that genuine discovery can be ordered even when advances in
technology have the effect that discovery takes a very different form from that of
documents as traditionally understood. In former times, there would have been a
written record of every commercial transaction. Old methods of record-keeping
could not have coped with the sheer volume of traffic generated by the new means
of communications. I accept that failure by the courts to move with the times
by adapting the rules to new technology might encourage unscrupulous
businesses to keep their records in a form which would defeat the ends of justice.

the discovery of electronic documents must be requested in terms of the extended

meaning of ‘document’ as interpreted by the courts Until such time as the rules are
amended and the parties can request the court to direct the discovery of ESI. 33
Moseneke DCJ held:
Ordinarily courts would look favourably on a claim of a litigant to gain access to
documents or other information reasonably required to assert or protect a
threatened right or to advance a cause of action. This is so because courts take
seriously the valid interest of a litigant to be placed in a position to present its case
fully during the course of litigation. Whilst weighing meticulously where the
interests of justice lie, courts strive to afford a party a reasonable opportunity to
achieve its purpose in advancing its case. After all, an adequate opportunity to
prepare and present one’s case is a time-honoured part of a litigating party’s right
to a fair trial.

29 P Farlam & DE van Loggerenberg Erasmus: Superior Court Practice (Cape Town: Juta
2011) at B1 – 262B).
30 Metropolitan Health Corporate (Pty) Ltd v Neil Harvey and Associates (Pty) Ltd and
Another (WCC) (unreported case no 10264/10, 19-8- 2011) (Baartman J).
31 The Uniform Rules of Court of the South African High Court.
32 Dome Telecom v Eircom [2007] IESC 59.
33 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31
(CC) at 41F – 42B.
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Electronic discovery is regarded as complex and expensive 34 because of the

following factors:
(1) The huge volume and number of messages created in the information age.
(2) The difficulty of erasing electronic data from the hard drives, most of erased data
can be recovered.
(3) Information that is contained in electronic documents named metadata creates
problems for example, e-mail data elements include the dates the mail was sent,
received, replied to or forwarded to another user.
(4) The contents of the data changes regularly. The metadata element changes also
every time the document is copied which creates the question which document is
the best ' document' for the purpose of discovery.
(5) Information in a database needs a application to read it.
(6) Upgrades and technological changes impacts on the recovery of data.
(7) While documents are normally stored in one place, electronic documents can be
stored at various places and in various devices, it can even be stored in third party
premises in a different jurisdiction.
(8) The services of computer forensic experts can be very expensive.

The discovery of electronically generated and stored information is a complex and

expensive exercise and not possible for a majority of legal practitioners and their
clients. Traditionally the costs of the discovery and the costs relating to the
production of the documents for inspection and the trial are borne by the party
making the discovery.35 However in some of the other jurisdictions cost shifting to
the requesting party is considered when an electronic discovery places an undue
burden or expense on the producing party, this will also be well considered if the
discovery involves a third party. Our courts in the exercise of their inherent

34 Cassim F "use of Electronic Evidence in South African Law" in Jaishankar K and Ronel N
(Eds) Global Criminology: Crime and Victimization in the globalized Era (2013) CRC Press
85-93.
35 Villiers AC Loots C Neo HC "Discovery, Inspection and Production of Documents" 2009
Bernstein & Van Winsen The Civil Practice of the High Courts of South Africa and the
Supreme Court of Appeal of South Africa .
 16

jurisdiction or in terms of rule 35(7)36 should also consider these factors and either
refuse the discovery or shift the costs to the requesting party.

The South African common law is ineffective to combat cybercrime37 and led to the
promulgation of the Electronic and Transactions Act.38 The traditional requirement
for a document that it must be relevant and admissible, its authenticity must be
proved and the original document must be produced39 has now changed as a result
of the ECT. 40 The ECT creates a rebuttable presumption that data messages and
or printouts are admissible in evidence.41 Because it is not in the original form a data
message will not infringe the best evidence rule.42 In the question what constitutes
the best evidence it has been advanced that a data message produced in the form
that it was originally created with retained metadata would constitute the best
evidence of that message.43 For documents to be ensured of their integrity they
must be produced in the original form.44

In Ndlovu45 the court had to determine if a computer printout which was a copy
complied with the best evidence rule and if it could be admitted into evidence unless
properly proved. After examination of section 15 of the ECT 46 the court found that
the printout was generated by a computer and was covered by the ECT. The printout
was however admitted in terms of the discretion of the court to admit hearsay
evidence in terms of the Law of Evidence Amendment Act.47 The court missed the
opportunity to clarify the use of the ECT in South African Law and the hearsay rule.

36 The Uniform Rules of Court of the South African High Court.

37 Burchell J "Criminal Justice at the crossroads" 2002 South African Law Journal 119 579-
585.
38 The Electronic and Transactions Act, Act 25 of 2002.
39 Secombe v AG TPD 270 at 277, S v Mpumlo [ 1986] 3 SA 485 (E) at 489.
40 The Electronic and Transactions Act, Act 25 of 2002 section 15.
41 Cassim F "use of Electronic Evidence in South African Law" in Jaishankar K and Ronel N
(Eds) Global Criminology: Crime and Victimization in the globalized Era (2013) CRC Press
85-93.
42 Snail S "Cyber Crime in South Africa-Hacking, cracking and other unlawful online activities"
2009 Journal of Information, Law and Technology http://ww2.Warwick.ac.uk (date used 13
April 2017).
43 Hughes M "Electronic Litigation" at Cyber Crime Africa 2008 Monte Casino Johannesburg.
44 Hughes M "Electronic Litigation" at Cyber Crime Africa 2008 Monte Casino Johannesburg.
45 Ndlovu v Minister of Correctional Services and another [2006] 4 All SA 165 (W)
46 The Electronic and Transactions Act, Act 25 of 2002 section 15.
47 The Law of Evidence Amendment Act, Act 45 of 1988.
 17

In S v Ndiki48 the state wanted to introduced computer generated printouts into

evidence. The court found that if the credibility of the document was depended on
the statement of an individual it would constitute hearsay evidence. The court held
further that if the probative value of a statement depended on the credibility of the
computer, the Law of Evidence Amendment Act49 would not apply.
In the Narlis50 case the printouts were not accepted because it was electronic
evidence but because of Civil Proceedings Evidence Act51 which precludes this
submission if the bank is one of the parties to the litigation.
Because of the international nature of cybercrime, it is necessary for countries to
work together to combat the spread of cybercrime. The Budapest Convention on
Cybercrime52 the states recognised the need for co-operation between state and
private industry and is concerned by the risk computer networks and electronic
information have on crime and the problems in gathering of such evidence. South
Africa is a signatory state to this document and as such the only African State to do
so.
Cloud Computing is poised to offer tremendous benefits to clients, including
inexpensive access to seemingly limitless resources that are available instantly,
anywhere. To prepare for the shift from computing environments dependent on
dedicated hardware to Cloud Computing, the Federal Rules of Discovery should be
amended to provide relevant guidelines and exceptions for particular types of
shared data. Meanwhile, clients should ensure that service contracts with Cloud
providers include safeguards against inadvertent discoveries and mechanisms for
complying with the Rules. Without these adaptations, clients will be either reluctant
or unprepared to adopt Cloud Computing services, and forgo their benefits. 53In the
United States of America the Federal Rules of Discovery do not effectively apply to
clients of a Cloud network. The shared nature of Cloud Computing requires limiting
discovery to data in exclusive or/and substantial control by a client or whose
discovery will not unduly harm other clients or third parties. In anticipation of the

48 S v Ndiki and Others [2008] 2 SACR 252.

49 The Law of Evidence Amendment Act, Act 45 of 1988.
50 Narlis v South African Bank of Athens 1976 (2) SA 573 (A).
51 The Civil Proceedings Evidence Act, Act 57 of 1983 section 33.
52 The Council of Europe’s Treaty on Cybercrime (Budapest 2001)
http://conventions.coe.int/Treaty/EN/Treaties/html/185.htm.
53 Araiza AG “Electronic Discovery in the Cloud” (2011) Duke Law and Technology Review 1-
18
 18

universal adoption of Cloud Computing, the Rules should provide guidance

and exceptions for particular types of shared ESI, this is also true for jurisdictions
outside of the US. Procedure will have to be changed to make possible the discovery
of date in cloud. Clients should consider whether their service contracts include
safeguards against unintentional discoveries of data, indicate the costs for ongoing
preservation, and provide mechanisms for complying with the duty to preserve and
for securely applying and releasing litigation holds.54 Inaction will asphyxiate the
adoption of Cloud Computing and deny the public its positive network
effects.

8. Conclusion55
South Africa is the leader in Africa in the area of electronic evidence because of the
adoption of a number of technology-related statutes.56 The continent of Africa must
realises the importance of acting as one to achieve the same scale and
harmonisation of legislation that is achieved elsewhere and to do so standards are
of vital importance.
Personal computers is an important source of evidence in litigation. There are
differences between physical and digital evidence discovery in pre-trial
preparations. In countries where procedural laws only makes provision for the
search of tangible evidence, those countries must evaluate their procedural laws
governing evidence and amend them.57
The purpose of discovery is to ensure that both parties are made aware of all the
documentary evidence that is available before the start of a trial. Proper discovery
is also important for the administration of justice58, Fannin J held;
Serious consequences can flow from an improper discovery of documents and
disruption of the administration of justice often follows from it.

Given that most modern communications and business documentation are created

54 Venkat Rangan, E-Discovery and the Cloud: The Duty to Preserve

Electronically Stored Information (ESI), E-DISCOVERY BLOG 2.0
http://www.clearwellsystems.com/e-discoveryblog/ 2010/05/28
55 Van Dorsten J "Discovery of electronic documents and attorneys’ obligations" 2012 De
Rebus 34-36.
56 Van der Merwe DP et al ICT law (2016) ch 5 p107-147.
57 Goodman MD Brenner S "The emerging consensus on criminal conduct in cyberspace"
2002 International Journal of Law and Information Technology 10(2) 129-223.
58 Durban City Council v Minister of Justice 1966 (3) SA 529 (D) at 531C.
 19

and stored in electronic form, discovery will in most cases be incomplete if it does
not include ESI59. Attorneys who fail to ensure that full and proper discovery has
been made lay themselves open to being accused of ‘gross incompetence.60

BIBLIOGRAPHY

1. Books and Book Chapters

59 Van der Merwe DP et al ICT law (2016) ch 5 p107-147.

60 Earles v Barclays Bank Plc [2009] EWHC 1 (Mercantile Court).
 20

Van der Merwe DP et al ICT Law (2016)

P Farlam & DE van Loggerenberg Erasmus: Superior Court Practice (Cape Town:
Juta 2011)

2. Journal Articles

Burchell J "Criminal Justice at the crossroads" 2002 South African Law Journal
119

Van Dorsten J "Discovery of electronic documents and attorneys’ obligations"

2012 De Rebus 34-36

Villiers AC Loots C Neo HC "Discovery, Inspection and Production of Documents"

2009 Bernstein & Van Winsen The Civil Practice of the High Courts of South
Africa and the Supreme Court of Appeal of South Africa

Cassim F "use of Electronic Evidence in South African Law" in Jaishankar K and

Ronel N (Eds) Global Criminology: Crime and Victimization in the globalized Era
(2013) CRC Press 85-93

Goodman MD Brenner S "The emerging consensus on criminal conduct in

cyberspace" 2002 International Journal of Law and Information Technology 10(2)
129-223.

Araiza AG “Electronic Discovery in the Cloud” 2011 Duke Law and Technology
Review 1-18

3. Electronic Sources

Snail S "Cyber Crime in South Africa-Hacking, cracking and other unlawful online
activities" 2009 Journal of Information, Law and Technology
http://ww2.Warwick.ac.uk (date used 13 April 2017).
 21

The Council of Europe’s Treaty on Cybercrime (Budapest 2001)

http://conventions.coe.int/Treaty/EN/Treaties/html/185.htm.

Venkat Rangan, E-Discovery and the Cloud: The Duty to Preserve

Electronically Stored Information (ESI), E-DISCOVERY BLOG 2.0
http://www.clearwellsystems.com/e-discoveryblog/ 2010/05/28

4. Case Law

Blackmer v. United States, 284 U.S. 421, 442 (1932)

Bodner v. Paribas, 202 F.R.D. 370, 375–76 (E.D.N.Y. 2000)

Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 227–28 (E.D.N.Y 2007)

Hall v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 195 (C)

Earles v Barclays Bank Plc [2009] EWHC 1

Le Roux and Others v Viana NO and Others 2008 (2) SA 173 (SCA)

Metropolitan Health Corporate (Pty) Ltd v Neil Harvey and Associates (Pty) Ltd
and Another (WCC) (unreported case no 10264/10, 19-8- 2011) (Baartman J)

Dome Telecom v Eircom [2007] IESC 59

Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re

Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31
(CC)

Secombe v AG TPD 270 at 277, S v Mpumlo [ 1986] 3 SA 485 (E)

Ndlovu v Minister of Correctional Services and another [2006] 4 All SA 165 (W)
 22

S v Ndiki and Others [2008] 2 SACR 252

Narlis v South African Bank of Athens 1976 (2) SA 573 (A)

Durban City Council v Minister of Justice 1966 (3) SA 529 (D)

5. Legislation

The Civil Proceedings Act, Act 25 of 1965

The Criminal Procedure Act, Act 51 of 1977

Insolvency Act, Act 24 of 1936

The Electronic and Transactions Act, Act 25 of 2002

The Law of Evidence Amendment Act, Act 45 of 1988

The Civil Proceedings Evidence Act, Act 57 of 1983

6. Miscellaneous Sources

US Federal Rules of Civil Procedure

UK Civil Procedure Rules

Hughes M "Electronic Litigation" at Cyber Crime Africa 2008 Monte Casino

Johannesburg.
23