Electronic instruments – A presumption of reliability, a presumption of regularity, judicial notice, or none of the above?

• Jurisdiction: South Africa
• Author: Lee Swales
• Date: 24 May 2019
• Pages: 189-211
• Published date: 24 May 2019
• Citation: (2018) 31 SACJ 189

Electronic instruments – a

presumption of reliability, a

presumption of regularity, judicial

notice, or none of the above?*

LEE SWALES**

ABSTRACT

Despite section 15 of the Electronic Com munications and Transaction s Act

25 of 2002 (‘the ECT Act’), in Delshe ray Trust v ABSA Bank Limited, the

Western Cape Division of the High Cour t invoked what it referred to as a

common law presumption of reliabi lity – based on an Appell ate Division

crimina l appeal from 1975 (S v Mthimkulu) – in order to ensure seemingly

valid computer-based evidence was ad mitted to court. T he factors set out

by Corbett JA in Mthimkulu in relation to judicial notice can be adapted

to t modern technology: should a cour t wish to apply the common law

when considering the admi ssibility of data me ssage evidence (as opposed

to applying the directly releva nt sections of the ECT Act).

Mthimkulu and the ECT Act notw ithstanding, the Sout h African L aw

Reform Commission recom mends the introduction of a st atutory presumption

in civil proceedi ngs. Introducing a presumption of t his nature to only ci vil

proceedings and leaving a lacu na in the regulation of cr iminal law may

cause confusion and inconsi stent application. A review of recent case law

suggests there is no urgent need to adopt s uch a statutory presu mption,

and for the short term at least, the c urrent legislative fra mework is better

off as it stands.

1 Introduction1

Electronic instr uments have become part of the fabric of every-d ay

life – their omnipresent natu re ensures that in a post in formation-

revolution society, it is likely that a person will use, rely on, or interact

with an electronic instr ument every day. Consequently, technological

* This art icle forms part of an on-going PhD stud y reviewing the law of evidence and

data messages.

** LLB (UK ZN) summa cum laude LLM (Wits), Lecturer, University of KwaZulu-Nat al.

189

(2018) 31 SACJ 189

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developments have ushered in a ‘revolution’ that requires some

adaption from the law of evidence.1

In the context of data messages2 and electronic commun ications, a

presumption of reliability is a presumpt ion that electronic equipment

was working and reliable at the relevant time, unless there is

evidence to the contra ry.3 The primary rationa le for this presumption

is expediency – to save time and money; and to avoid proving the

obvious.4 The purpose of th is article is to exami ne presumptions in

the context of electronic evidence.5

1 Trustees for the Time Being of the D elsheray Trust v AB SA Bank Limited 2014 JDR

2177 (WCC) (Delsheray Trust) at para [18]; S v Meyer 2017 JDR 1728 (GJ) where the

court applied the Elec tronic Commun ications and Transac tions Act 25 of 2002 (the

ECT Act) in the context of f raudulent VAT refunds total ling over 200 mil lion Rand;

Sv Brown 2016 (1) SACR 206 (WCC) where electronic evidence from a mobi le phone

and the application of the EC T Act were central is sues in the context of a mur der

trial; S v Miller 2016 (1) SACR 251 (WCC) where electronic evidence was requi red in

the context of organ ised crime involvi ng abalone. See also Uramin In corporated v

Perie 2017 (1) SA 236 (GJ) at para [35] where technology was ‘simply another tool

for securing effec tive access to justice’ in the context of ev idence being led via video

link.

2 Although electr onic evidence is someti mes used as an umbr ella term, the cor rect

description accordi ng to the ECT Act is dat a messages a nd /or data. However, for

ease of reference, thi s contribution will use the term s data messages and electronic

evidence interchangea bly. See South African L aw Reform Commission D iscussion

Paper 131 (Project 126) ‘Review of the Law of E vidence’ (2014) 27 where the South

African Law Refor m Commission (SALRC) states: ‘[the] denitio n of “data message”

in any event appears largely co nsistent with the ter m electronic evidence’. See also

s1 of the ECT Act where data is de ned as ‘electronic representation s of information

in any form’, and where data message is de ned as ‘data generated , sent, received

or stored by electronic me ans’. See also S v Me yer supra (n1) at para [298] where the

term electronic e vidence is used.

3 Delsheray Trust supra (n1) at paras [40] -[41] where the court found that pr inciples

underlying a presumpt ion of reliabilit y are rmly es tablished in South A frican

law, and referred to S v Mthimkulu 1975 (4) SA 759 (A) as authority for that

proposition. See also D S De Villiers ‘Old “docu ments”, “videotapes” and new “data

messages” – a funct ional approach to the law of evid ence (part 2)’ 2010 TSAR

722-734; C Theophilopoulo s ‘The admissib ility of data, d ata messages, and

electronic docu ments at trial’ (2015) 3 TSAR 461 at 477; S Mason ‘The presumptio n

that computers are “relia ble”’ in S Mason and D Seng (eds) Electronic Evidence 4ed

(2017) 101-185.

4 S Mason ‘Mechanica l instrum ents: the presumption o f being in order’ in S M ason

(ed) Electronic Evidence 3ed (2012) 149. See an updated versio n of this chapter in

Mason op cit (n3) 101-185.

5 On electronic evide nce in general, in a Sout h African con text, see J Hofman

‘Electronic evid ence in criminal cas es’ (2006) 19 SACJ 257-275; J Hofman & Jde Jager

South Africa in S Mason (ed) Electronic Evidence 3 ed (2012) 761-797; L Meintjes-

van der Walt ‘Electronic ev idence’ in S Papadopoulos & S Sna il (eds) Cyberlaw@

SA III: the Law of the Inte rnet in South Afri ca 3ed (2012) 315-330; DP van der

Merwe et al Information and Communications Technology Law 2ed (2 016) 105 -

147; PJSchwikkard & SE va n der Merwe et al Prin ciples of Evide nce 4ed (2 016)

437-4 46.

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