S v Ndiki and Others

• Jurisdiction: South Africa
• Judge: Van Zyl J
• Judgment Date: 13 November 2006
• Docket Number: CC35/2005
• Hearing Date: 13 November 2006
• Counsel: Z Dotwana for accused 1 and 3. SG Manjezi for accused 2. NS Nombambela for accused 4. KH Naidu SC and J Marais SC for accused 5 and 6. J Roothman for the State.
• Court: Ciskei High Court

Van Zyl J:

Introduction

D [1] At the commencement of the trial the accused gave notice that they objected to the admissibility of certain documentary evidence the State intended to use in the trial. These documents (exhibits D1 to D9) consist of computer generated print-outs. The issues the court was in essence called upon to determine was the true nature of the computer print-outs in question, the class of documents they represent and E whether the admissibility thereof is sanctioned by any of the provisions in the relevant legislation dealing with the admission of documentary evidence. As a result an admissibility trial was held to determine the issues raised. The State called two witnesses whilst the accused elected not to present any evidence.

The legislation dealing with computer evidence F

[2] The admission of computer generated evidence is regulated by the Computer Evidence Act 57 of 1983 and s 15 of the Electronic Communications and Transactions Act 25 of 2002 (the 'ECT Act'). The parties G were ad idem that the former Act does not apply to criminal proceedings, as is clearly evident from the preamble thereto (see too Zeffertt, Paizes & Skeen The South African Law of Evidence at 393). Counsel for the accused submitted that the ECT Act similarly does not apply because it came into operation after the alleged commission of the offences with which the accused are charged in the present matter. Reliance was H placed in this regard on the presumption against retrospectivity. The admission of inadmissible evidence or the refusal of admissible evidence, so it was argued, is a matter of substantive law and not one of simple procedure. It was accepted that if it is a matter of procedure it may constitute an exception to the presumption against retrospectivity and the provisions I of the Act may apply (Curtis v Johannesburg Municipality 1906 TS 308 at 312).

[3] In Tregea and Another v Godart and Another 1939 AD 16 at 30 Stratford CJ deals with this distinction and stated that, in his opinion,

substantive law lays down what has to be proved in any given issue and J by whom, and the rules of evidence relate to the manner of its proof.

Van Zyl J

Whether or not a provision in an enactment is a procedural matter falls A to be decided from the terms of the provision as read in context (S v Heita and Others 1987 (1) SA 311 (SWA) at 316A - B). A provision is considered 'procedural' and may affect pending litigation, not only if it deals with a new procedure to be followed, but also with new rules relating to proof (see LC Steyn Die Uitleg van Wette 5 ed at 90; S v Heita (supra) at 316B - C; and S v Stieler 1978 (3) SA 38 (O) at 41A - C.) B

[4] That the ECT Act deals with the admissibility of computer evidence and the rules of evidence applicable thereto, is clear from a reading of s 15. The relevant portions thereof read as follows:

(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 - C

(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 D 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; E

(c)

the manner in which its originator was identified; and

(d)

any other relevant factor.

[5] It does not follow of necessity that because a statute deals with procedure it must be treated as retrospective in its operation. It is clear from a reading of the case law that it is nothing more than a prima facie rule of construction and primarily the enquiry in each case must focus on F the language of the enactment and the purpose and intent of the legislature as it emerges therefrom (Euromarine International of Mauren v The Ship Berg and Others 1986 (2) SA 700 (A) at 710A - J).

[6] It was submitted on behalf of the accused that one of the strong considerations against retrospective operation of a statute, even if it is G procedural in nature, is whether unfair consequences might result or it might interfere with existing rights. (Van Wyk v Rondalia 1967 (1) SA 373 (T) at 375.) The basis of the presumption against retrospectivity is considerations of fairness (National Director of Public Prosecutions v Carolus and Others 1999 (2) SACR 607 (SCA) (2000 (1) SA 1127; H [2000] 1 All SA 302) in para 36). It was argued that to admit evidence, which would not have been admissible at the time when the offences were allegedly committed, would operate unfairly and be contrary to the right of an accused to a fair trial. This right, it was submitted, is a substantive right in terms of the Constitution (S v Thebus and Another 2003 (2) SACR 319 (CC) (2003 (6) SA 505; 2003 (10) BCLR 1100) in I paras 53, 106 and 108).

[7] As I shall attempt to show when I deal with the provisions of the Law of Evidence Amendment Act 45 of 1988, computer evidence which falls within the definition of hearsay evidence in s 3 thereof may become admissible in terms of provisions of that Act. Evidence on the other hand J

Van Zyl J

A that depends solely upon the reliability and accuracy of the computer itself and its operating systems or programs, constitutes real evidence. What s 15 of the ECT Act does, is to treat a data message in the same way as real evidence at common law. It is admissible as evidence in terms of ss (2) and the court's discretion simply relates to an assessment of the evidential weight to be given thereto (ss (3)). The ECT Act is therefore B inclusionary as opposed to exclusionary. Section 3 of the Law of Evidence Amendment Act on the other hand operates exclusionarily in that evidence falling within the definition of hearsay is not automatically admissible but is made subject to what is in the interests of justice (S v Ndhlovu and Others C 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760) at 335b - 336d (SACR)).

[8] The definition of 'data message' in s 1 appears to be sufficiently wide to not only include real evidence but also hearsay evidence ('data generated, sent, received or stored'). This raises the question whether s 15 overrides the provisions of s 3 of the Law of Evidence Amendment D Act when the evidence in issue consists of a data message. There is nothing specifically in the Act that says that it does not. In Ndlovu v Minister of Correctional Services and Another [2006] 4 All SA 165 (W) Gautschi AJ, however, stated at 173f that 'there is no reason to suppose that s 15 seeks to override the normal rules applying to hearsay'. A contrary view is held by Schwikkard & Van der Merwe Principles of E Evidence 2 ed at 385. (See further Zeffertt op cit at 393 - 4.)

[9] It must be accepted that the ECT Act must be read in the light of the Constitution and as giving effect to its fundamental values (s 39(2) of the Bill of Rights). To the extent that this Act allows the admission of F evidence that would otherwise not constitute 'legal evidence', unless it is brought within the provisions of the Law of Evidence Amendment Act, or one of the recognised exceptions to hearsay evidence, there is in my view merit in the argument that it affects the substantive right of an accused to a fair trial in terms of the Constitution and should not operate retrospectively. I however do not intend to make any finding in this G regard and will leave this question open. The reason is that the documents in question may be admissible in terms of the laws relating to hearsay and the exceptions thereto.

[10] It was further contended that the admissibility of the documents is also not sanctioned by s 3 of the Law of Evidence Amendment Act, H s 34 of the Civil Proceedings Evidence Act 25 of 1965, and s 221 of the Criminal Procedure Act 51 of 1977. The objection raised is primarily based on the submission that the documents do not comply with the requirement of personality, that is, that the information contained therein, at least parts thereof, did not emanate from a person and 'cannot be regarded as evidence given or confirmed by a person'. Mr Marais for I accused 5 and 6 described the documents relied upon by the State to constitute a 'mixed bag' of information supplied by a person and information supplied by the system. (Paragraphs 11 and 14 of the heads of argument filed on behalf of the said accused.)

[11] In support of this submission reliance was primarily placed on the J decisions in Narlis v South African Bank of Athens 1976 (2) SA 573 (A);

Van Zyl J

S v Harper and Another 1981 (1) SA 88 (D); and S v Mashiyi and Another A 2002 (2) SACR 387 (Tk). Cutting away the frills, the suggested approach, based on the aforegoing decisions, is that a computer is not a person and if it carried out active functions, over and above the mere storage of information, the disputed documents are inadmissible. For the same reason the provisions of the Law of Evidence Amendment Act relating to hearsay evidence are also of no assistance because hearsay B evidence only extends to oral or written statements, the probative value of which depends upon the credibility of a 'person'. (See S v Mashiyi (supra) at 390d - 391a and 393a - b.)

[12] As I shall indicate hereunder, such an approach to computer generated evidence is in my view incorrect and of very little assistance. It C is an oversimplification of the real issue and may result in otherwise admissible evidence being ruled inadmissible. It is based on findings that were made in reported...