The use of hard copy printouts of documents stored on computers has long been a bugbear for banks, insurance companies and anyone else wishing to present evidence from its computer system in order to prove a claim. Computer data is electronically stored. Accordingly, hard copy printouts from a computer presented in evidence face the immediate difficulty that they are hearsay evidence and offend the best evidence rule. The Electronic Communications and Transactions Act (ECT Act) repealed the much criticised Computer Evidence Act and provides a considerably streamlined approach to electronic information. The relevant provisions of the Act are designed to make computer evidence equivalent to normal hardcopy evidence, and to address issues of hearsay and best evidence.
Importantly for litigators, the ECT Act provides a simple but powerful procedure for the certification of electronic evidence, making it firstly admissible in evidence and secondly rebuttable proof of the facts it contains. It is simply required that "an officer" in the service of the person who entered or created the data message certifies as correct a data message which is either "made by a person in the ordinary course of business" or which is a copy, printout or extract from such data message.
A recent matter where the Johannesburg High Court was asked to consider electronic evidence not certified as correct in terms of the ECT Act, highlighted the value of the certification procedure.
Electronic evidence was led regarding parole violations which had been recorded on a computer program by more than one person. The court held that unless the person who entered the data on the computer was called as a witness, the computer printout constituted hearsay evidence. It was also held that data messages must comply with the same requirements as paper-based evidence namely, they must be relevant and otherwise admissible, their authenticity must be proved and the original document must normally be produced (unless it is the best evidence that the party presenting it could reasonably be expected to obtain). In addition to the normal rules of evidence, the court applied section 15(3) of the ECT Act which requires it to consider "the reliability of the manner in which the data message was generated, stored or communicated... the reliability of the manner in which the integrity of the data message was maintained; the manner in which its originator was identified; and any other relevant factor".
The learned judge commented that on his reading of the ECT Act, electronic evidence certified in accordance with it stands as evidence without further qualification unless it is rebutted by the opposing party and in particular, is not required to be assessed in terms of the additional four aspects set out in Section 15(3).
While the judge's comments do not form a part of the reasoning for his decision and are accordingly not binding, they do serve to highlight the benefits of the certification procedure. The procedure immediately relieves the party presenting the electronic evidence of a substantial evidential burden and transfers that burden to the opposing party, which is then required to present evidence (if the evidence is to be rebutted).
Tim Fletcher is a director at Cliffe Dekker Inc, a leading South African corporate law firm.
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