S v Ndiki and Others

• Jurisdiction: South Africa
• Citation: 2008 (2) SACR 252 (Ck)

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

2008 (2) SACR p252

Citation	2008 (2) SACR 252 (Ck)
Case No	CC35/2005
Court	Ciskei High Court
Judge	Van Zyl J
Heard	November 13, 2006
Judgment	November 13, 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.

Flynote : Sleutelwoorde

Evidence — Admissibility — Computer-generated documents — Whether such evidence amounting to hearsay — Section 3 of Law of Evidence Amendment Act 45 of 1988 — Definition of hearsay clearly covering documentary F evidence — Where computer print-out containing statement of which individual having personal knowledge, its use in evidence depending on credibility of identifiable individual and therefore constituting hearsay — But where computer processing existing information, making calculations and 'creating' additional information, such evidence constituting real evidence — Admissibility of this evidence depending on reliability and accuracy G of computer, as opposed to credibility of a person — Duty to prove such accuracy and reliability lying with State.

Evidence — Admissibility — Computer-generated documents — Section 34 of Civil Proceedings Evidence Act 25 of 1965 — Statements printed by computer, but compiled and signed by person, complying with s 34(1) requirement of having been 'made' by person — Whether every representation H of fact in document having to fall within personal knowledge of maker of statement, or whether s 34 referring only to particular representation of fact in document which sought to be introduced into evidence — Personal knowledge required of matters dealt with in statement, as opposed to document — Accordingly, such personal knowledge required I only of matters tending to establish particular fact in issue.

Evidence — Admissibility — Computer-generated documents — Section 221 of Criminal Procedure Act 51 of 1977 — Where computer print-outs produced by computer sorting and collating information, such print-outs admissible under s 221 if foundational requirements thereof satisfied — Section 221 not requiring record to be compiled by person with personal J knowledge of matters dealt with therein — However, personal knowledge on part

2008 (2) SACR p253

of person supplying information required — Statements State wishing to A introduce having been obtained from persons with personal knowledge of contents thereof — Information contained in statements having been sorted and collated by computer — Statements admissible.

Headnote : Kopnota

During the course of a criminal trial the State sought to introduce certain documentary evidence consisting of computer-generated print-outs, B designated as exhibits D1 to D9. The accused objected to the admission of these exhibits, as a result of which the court conducted a trial-within-a-trial to determine the true nature of the print-outs, the class of document into which they fell, and whether their admission was sanctioned by the provisions of any legislation dealing with the admission of documentary evidence. The accused argued, inter alia, that admission of the evidence C would offend the presumption against retrospectivity; and that the documents failed to comply with the 'requirement of personality', in that the information contained therein had not emanated from a person and could not be regarded as evidence given or confirmed by a person. It was argued, further, that the admission of the documents was not sanctioned by s 3 of D the Law of Evidence Amendment Act 45 of 1988, or by s 34 of the Civil Proceedings Evidence Act 25 of 1965, or by s 221 of the Criminal Procedure Act 51 of 1977.

Semble: The accused submitted that the Electronic Communications and Transactions Act 25 of 2002 did not apply in casu because it had come into operation after the commission of the alleged offence. To the extent that E this Act allowed the admission of evidence that would not otherwise constitute 'legal evidence', unless it was brought within the provisions of the Law of Evidence Amendment Act, or one of the recognised exceptions to the hearsay rule, there was merit in the argument that it affected the substantive right of the accused to a fair trial, and so should not operate F retrospectively. However, since the documents in question might be admissible in terms of the laws relating to hearsay, it was not necessary to make a positive finding in this regard. (Paragraphs [2] and [9] at and 256g-h and 258e-g.)

Held, regarding the 'requirement of personality', that what was being suggested was that, a computer not being a person, if it carried out active functions, G over and above the mere storage of information, the documents produced in accordance with such functions were not admissible. For the same reason, it was argued, the provisions of the Law of Evidence Amendment Act were of no assistance because hearsay evidence extended only to oral or written statements, the probative value of which depended on the credibility of a 'person'. This approach to computer-generated evidence was incorrect H and might result in otherwise admissible evidence being ruled inadmissible. (The court proceeded to explain and distinguish a number of reported cases on which reliance had been placed in argument.) It was not desirable to attempt to deal with the admissibility of computer print-outs as documentary evidence simply by considering the general characteristics of a I computer. The issue was to be determined on the facts of each case, having regard to what it was that the party concerned wished to prove by means of the documents, the contents thereof, the function performed by the computer, and the requirements of the statutory provisions relied upon for the admission of the documents in question. (Paragraphs [10] - [20] at 258h-261e .) J

2008 (2) SACR p254

A The Law of Evidence Amendment Act 45 of 1988

Held, further, that what constituted hearsay was to be determined by having regard to the provisions of s 3 of the Law of Evidence Amendment Act, in terms of which the definition of hearsay quite clearly covered documentary evidence. If a computer print-out contained a statement of which an B individual had personal knowledge and which was stored in the computer's memory, its use in evidence would depend on the credibility of an identifiable individual and would therefore constitute hearsay. On the other hand, where the probative value of a statement in a print-out was dependent on the 'credibility' of the computer itself, s 3 would not apply. In such a C case, doubts as to the accuracy and reliability of the operating system might affect the reliability of the evidence and the evidential weight to be given thereto. In casu certain individuals had signed exhibits D1 to D4; the computer had been simply a tool used to perform a task and create the documentation. Consequently, these documents constituted hearsay. Exhibits D5 to D9, however, had been created without human intervention D or assistance. To the extent that the computer had processed existing information, made calculations and 'created' additional information, such evidence constituted real evidence. Accordingly, the admissibility of this evidence depended on the reliability and accuracy of the computer, and its operating systems and processes, as opposed to the credibility of a person; and the duty to prove such accuracy and reliability lay with the State. E (Paragraphs [31] - [37] at 264e-266e.)

The Civil Proceedings Evidence Act 25 of 1965

Held, further, that the view that the documents the State wished to introduce, having been produced by a computer, had not been made by a person, as F required by s 34 of this Act, was a restrictive approach to the section which ignored the function performed by a computer in any given case. It was clear from the evidence, for example, that where exhibits D1, D2 and D4 were concerned, the computer had been simply a tool. In any event, exhibits D1 to D4, although printed on a computer, had been compiled and signed by a functionary, as envisaged by s 34(4); they had therefore been G 'made' by the functionary concerned, as envisaged by s 34(1). The same, however, did not apply to exhibits D5 to D9, and these accordingly did not comply with the requirements of s 34. (Paragraphs [42] - [43] at 267d-i.)

Held, further, that the question might arise as to whether the person or persons who had made the statements in exhibits D1 to D4 had had 'personal H knowledge of the matters dealt with in the statement' as required by s 34(1)(a)(i) of the Act. A further question was whether every representation of fact in a document had to fall within the personal knowledge of the maker of the statement, or whether s 34 should be more narrowly interpreted to refer only to the particular representation of fact in the document which the party concerned wished to introduce into evidence. The answer I lay in the wording of s 34: having regard to the fact that s 34 applied to proceedings where direct oral evidence of fact would be admissible; that it referred to a statement in a document that tended to establish that fact; and that personal knowledge was required of the matters dealt with in the statement, as, opposed to the document, such personal knowledge was required only of such matters that tended to establish the particular fact in J issue. (Paragraphs [44] and [45] at and 267j-268b and 268c-268f.)

2008 (2) SACR p255

The Criminal Procedure Act 51 of 1977 A

Held, further, that computer print-outs produced by a computer that had sorted and collated information would be admissible under s 221 of this Act if the foundational requirements thereof had been satisfied. In casu, the print-outs were documents within the ordinary meaning...