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 Communications and Transactions Act

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

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

common law presumption of reliability – based on an Appellate Division

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

valid computer-based evidence was admitted to court. The factors set out

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

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

when considering the admissibility of data message evidence (as opposed

to applying the directly relevant sections of the ECT Act).

Mthimkulu and the ECT Act notwithstanding, the South African Law

Reform Commission recom mends the introduction of a st atutory presumption

in civil proceedings. Introducing a presumption of this nature to only civil

proceedings and leaving a lacuna in the regulation of criminal law may

cause confusion and inconsistent application. A review of recent case law

suggests there is no urgent need to adopt such a statutory presumption,

and for the short term at least, the current legislative framework is better

off as it stands.

1 Introduction1

Electronic instruments have become part of the fabric of every-day

life – their omnipresent nature ensures that in a post information-

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

with an electronic instrument 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 (UKZN) summa cum laude LLM (Wits), Lecturer, University of KwaZulu-Nat al.

189

(2018) 31 SACJ 189

© Juta and Company (Pty) Ltd

developments have ushered in a ‘revolution’ that requires some

adaption from the law of evidence.1

In the context of data messages2 and electronic communications, a

presumption of reliability is a presumption that electronic equipment

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

evidence to the contrary.3 The primary rationale for this presumption

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

obvious.4 The purpose of this article is to examine presumptions in

the context of electronic evidence.5

1 Trustees for the Time Being of the Delsheray Trust v ABSA Bank Limited 2014 JDR

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

court applied the Electronic Communications and Transactions Act 25 of 2002 (the

ECT Act) in the context of fraudulent VAT refunds totalling over 200 million Rand;

Sv Brown2016 (1) SACR 206 (WCC) where electronic evidence from a mobi le phone

and the application of the ECT Act were central issues in the context of a murder

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

the context of organised crime involving abalone. See also Uramin In corporated v

Perie2017 (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 electronic evidence is sometimes used as an umbrella term, the correct

description according to the ECT Act is data messages and/or data. However, for

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

evidence interchangeably. See South African Law Reform Commission Discussion

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

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

in any event appears largely consistent 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 evidence is used.

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

underlying a presumption of reliability are rmly established in South African

law, and referred to S v Mthimkulu1975 (4) SA 759 (A) as authority for that

proposition. See also DS De Villiers ‘Old “documents”, “videotapes” and new “data

messages” – a functional approach to the law of evidence (part 2)’ 2010 TSAR

722-734; CTheophilopoulos ‘The admissibility of data, data messages, and

electronic documents at trial’ (2015) 3 TSAR 461 at 477; S Mason ‘The presumption

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

(2017) 101-185.

4 S Mason ‘Mechanical instruments: the presumption of being in order’ in S Mason

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

Mason op cit (n3) 101-185.

5 On electronic evidence in general, in a South African context, 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 3ed (2012) 761-797; L Meintjes-

van der Walt ‘Electronic evidence’ in S Papadopoulos & S Snail (eds) Cyberlaw@

SA III: the Law of the Internet in South Africa 3ed (2012) 315-330; DP van der

Merwe et al Information and Communications Technology Law 2ed (2016) 105-

147; PJSchwikkard & SE van der Merwe et al Principles of Evidence 4ed (2016)

437-446.

190 SACJ.(2018) 2

© Juta and Company (Pty) Ltd