An Analysis of the Regulatory Environment Governing Hearsay Electronic Evidence in South Africa: Suggestions for Reform – Part One

Abstract

The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence – with a view to providing clear, practical suggestions for regulatory reform in the context of the South African Law Reform Commission's most recent Discussion Paper on electronic evidence.

Technology has become an indispensable part of modern life.  In particular, the internet has facilitated new forms of business enterprise, and shifted basic communication norms.  From a legal perspective, technology has presented several novel challenges for courts and practitioners to deal with – one of these key challenges relates to electronic evidence, and in particular, the application of the hearsay rule to the digital environment.

The South African Law Reform Commission has identified the application of the hearsay rule as one of the core concerns with regard to electronic evidence and certain academic analysis has revealed inefficiency with the current legal position which may involve multiple sources of law. Moreover, the Law Society of South Africa has stated that there is some confusion amongst members of the profession in relation to hearsay as it applies to electronic evidence.

With the pervasive and burgeoning nature of technology and the internet in mind, it is natural to assume that electronic evidence will be relevant in most forms of legal proceedings in the future, and hearsay electronic evidence in particular will play an increasingly important role in years to come.

Consequently, this two-part article will seek to summarise and comment on the proposed anomaly with regard to the key definition insofar as electronic evidence is concerned – data messages – and discuss how the proposed version of the Cybercrimes and Cybersecurity Bill (B6-2017), read together with Electronic Communications and Transactions Act No. 25 of 2002 (ECT Act) will leave South Africa with conflicting definitions of this term. 

Further, this article will analyse whether electronic evidence (data messages) can constitute hearsay within the meaning of section 3 of the Law of Evidence Amendment Act 45 of 1988; examine whether section 15 of the ECT Act should liberate electronic evidence from hearsay considerations; consider how real electronic evidence should be treated (as opposed to documentary hearsay evidence); consider the interaction of the statutory exceptions to the hearsay rule in the context of electronic evidence; analyse several analogous foreign jurisdictions – and consider how these jurisdictions treat hearsay electronic evidence; and finally, to conclude with several suggestions for law reform in the context of the SA Law Reform Commission Discussion Paper 131 Review of the Law of Evidence (2014).