The Admissibility of Electronically Generated

Evidence in a Court of Law Presented by

Advocate Roux Krige

THE ADMISSIBILITY OF

EVIDENCE EMANATING

FROM ELECTRONIC

EQUIPMENT2

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ELECTRONICALLY EMANATED EVIDENCE MAY BE ADMITTED IN EVIDENCE IN A CRIMINAL COURT UNDER THE:

Common Law

Criminal Procedure Act No 51 of 1977

Section 3(1) of the Law of Evidence

Amendment Act No 45 of 1988 (Hearsay)

Electronic Communications and

Transactions Act No 25 of 2002 (ECT Act)

DEFINITION OF DOCUMENT UNDER THE COMMON LAW

Any written thing capable of being evidence. See R v Daye 1908 KB 330 at 340;

“Everything that contains the written or pictorial proof of something. It does not matter much of what material it is made”. See Seccombe v Attorney-General 1919 TPD 270, 272, 277‑278. This definition includes a photograph. See Mpumlo 1986 (3) SA 485 (E) which was agreed to by Baleka 1986 (4) 192 (T) 196H.

If it in fact contains written proof of facts, (in writing or ciphers), it is a document. See Seccombe v Attorney-General, supra p.277-278;

The ordinary meaning of the word ‘document’ is wide enough to include computer printouts. See Harper 1981 (1) SA 88 (D) 96C-F; De Villiers 1993 (1) SACR 574 (Nm) and Ndiki 2008 (2) SACR 252 (Ck).

It includes a “coin” according to Protea Assurance v Waverley Agencies 1994 (3) SA 247 (A) 249H-I.

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DOCUMENTS

COMPUTER PRINTOUTS CAN BE PROVED EITHER AS:

DOCUMENTARY EVIDENCE, OR AS

REAL EVIDENCE

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CLASSIFY THE TYPE OF PRINT-OUT ACCORDING TO THE FUNCTION OF THE COMPUTER

THE PURPOSE WITH THE CLASSIFICATION IS: TO DISTINGUISH BETWEEN DOCUMENTARY EVIDENCE AND

REAL EVIDENCE OF A DOCUMENTARY NATURE: DOCUMENTARY EVIDENCE CAN BE HEARSAY EVIDENCE; REAL EVIDENCE CANNOT BE HEARSAY EVIDENCE :

WHEN PRINTOUTS ARE DOCUMENTARY EVIDENCE, THE EVIDENTIAL WEIGHT OF THE EVIDENCE DEPENDS ON THE CREDIBILITY OF A PERSON.

WHEN PRINTOUTS ARE REAL EVIDENCE, THE EVIDENTIAL WEIGHT OF THE EVIDENCE DEPENDS ON THE “CREDIBILITY” OF THE ELECTRONIC SYSTEM BASED ON ITS HARDWARE AND SOFTWARE.

DIFFERENT LAW APPLIES RELATIVE TO THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE ON THE ONE HAND AND REAL EVIDENCE ON THE OTHER.

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DOCUMENTS AND COMPUTER PRINTOUTS:

PRINCIPLES RELATIVE TO PROVING DOCUMENTARY EVIDENCE UNDER THE COMMON LAW: PRIVATE DOCUMENTS:

ORIGINAL: VARIOUS; DUPLICATE ORIGINALS AUTHENTIC: PURPORTS TO BE WHAT IT IS TRUTH OF THE CONTENTS: VERACITY

PRINCIPLES RELATIVE TO PROVING REAL EVIDENCE OF A DOCUMENTARY NATURE UNDER THE COMMON LAW: REAL EVIDENCE:

IDENTIFY / “AUTHENTIC” RELIABILITY OF THE EQUIPMENT NO NEED FOR THE ORIGINAL: MDLONGWA 2010 (2) SACR 419

(SCA) 427b – g; DE VILLIERS 1993 (1) SACR 574 (NM); HNP v SEKRETARIS VAN BINNELANDSE SAKE 1979 (4) SA 274 (T)

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THE PURPOSE IS USUALLY TO PROVE THE TRUTH OF THE CONTENTS OF A PRINTOUT

DOCUMENTARY EVIDENCE: THE AUTHOR

REAL EVIDENCE OF A DOCUMENTARY NATURE: WE PROVE THE TRUTH OF THE CONTENTS

VIA PROVING THE RELIABILITY AND CORRECT FUNCTIONING OF THE COMPUTER AND ITS SOFTWARE.

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RELIABILITY OF THE COMPUTER SYSTEM

“THE RELIABILITY AND ACCURACY OF THE COMPUTER AND ITS OPERATING SYSTEMS ARE QUITE OBVIOUSLY RELEVANT FACTORS TO BE CONSIDERED IN THE EXERCISE OF THE COURT’S DISCRETION.” Ndiki 2008 (2) SACR 252 (Ck) 261d-h (par 54).

REAL EVIDENCE:FUNCTIONAL RELIABILITY:

COULD “BE SUPPLIED BY CIRCUMSTANTIAL EVIDENCE OF THE USUAL HABIT OR ROUTINE REGARDING THE USE OF THE COMPUTER.”

THIS IS SOMETIMES REFERRED TO AS THE PRESUMPTION OF REGULARITY WHICH IS A COMMONSENSE INFERENCE, WHICH MAY BE DRAWN WHERE APPROPRIATE.

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KEEP THE FOLLOWING IN MIND WHEN INTENDING TO PROVE A COMPUTER PRINTOUT

Ndiki 2008 (2) SACR 252 (Ck) 261d-h:

“It is not desirable to attempt to deal with computer printouts as documentary evidence simply by having regard to the general characteristics of a computer.”

DETERMINE: The contents of the computer printout; What it is that you wish to prove with the computer printout

(which facts); The function performed by the computer; and The requirements of the relevant section relied upon for the

admission of the computer printout/document in question.

THERE ARE THREE POSSIBLE CLASSIFICATIONS:

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THREE POSSIBILITIES:

1. WHERE THE INFORMATION IN THE PRINT-OUT CAME ABOUT AS A RESULT OF THE COMPUTER HAVING PROCESSED RAW DATA, WHICH DATA WAS ENTERED ONTO THE COMPUTER BY A PERSON? THE COMPUTER WITH ITS SOFTWARE CALCULATES,

SORTS, COLLATES AND SYNTHESISES THE ENTERED DATA.

THE COMPUTER THEN GIVES IT BACK IN A DIFFERENT FORMAT AS IT WAS ENTERED ONTO THE COMPUTER.

THIS IS REAL EVIDENCE. THE EVIDENTIAL WEIGHT OF SUCH A PRINTOUT

DEPENDS ON THE “CREDIBILITY” OF THE COMPUTER, SOFTWARE AND OPERATING SYSTEM.

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BBBBBBBBBDDDDDDDDDD1234565677U888

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2. WHEN THE INFORMATION IN THE PRINT-OUT WAS ENTERED ONTO THE COMPUTER BY A PERSON IN CIRCUMSTANCES WHERE THE COMPUTER DID NOT PROCESS THE INFORMATION SO ENTERED? A PERSON CREATED THE DATA ON THE

COMPUTER. THE COMPUTER THEN GIVES IT BACK IN THE

SAME FORMAT AS IT WAS ENTERED ONTO THE COMPUTER.

THIS IS DOCUMENTARY EVIDENCE.

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3. WHEN THE INFORMATION WAS RECORDED BY MECHANICAL MEANS WITHOUT THE PERSONAL INVOLVEMENT OF A HUMAN BEING?

A PERSON ONLY ACTIVATE THE ELECTRONIC SYSTEM. THE SYSTEM THEN GENERATES INFORMATION BASED ON ITS

SOFTWARE THE SYSTEM MAINLY RECORDS AND STORES. THIS IS REAL EVIDENCE.i. A COURT MAY TAKE JUDICIAL NOTICE OF THE GENERAL

RELIABILITY OF THE TYPE OF EQUIPMENT THAT WAS USED: Inference reliability relative to the specific equipment that was used

ii. WHEN A COURT CANNOT TAKE JUDICIAL NOTICE OF THE GENERAL RELIABILITY OF THE EQUIPMENT:

Viva voce evidence relative to the general reliability: Inference of reliability relative to the specific equipment that was used.

Direct Viva voce evidence of reliability relative to specific equipment. (Equipment that must be tested or calibrated)

COMPUTER GENERATED I0847114-3 0826820293 Ms WILHELMINA CECILIA GERNANDT WILH Page 1 Date Time Duration Number Dialed Charge Calls - Category 1 (082 6820293) Vodacom to Other Mobile Network 01/10/2009 08:51:44 00:01:21 27834708633

0.00 01/10/2009 08:54:42 00:00:31 27834708633

0.00 01/10/2009 10:58:33 00:02:44 0832578282

0.00 01/10/2009 16:31:41 00:00:42 27832578282

0.00 02/10/2009 11:41:29 00:00:18 27832578282

0.00 02/10/2009 13:56:35 00:02:29 27836986789

0.00 05/10/2009 16:50:56 00:01:04 27832578282

0.00 05/10/2009 17:24:37 00:10:32 0842472976

0.00 06/10/2009 12:18:58 00:01:37 27848155322

0.00 06/10/2009 17:42:11 00:00:25 0834708633

0.00

CLASSIFICATION 1 AND 3:

REAL EVIDENCE: PROOF OF THE TRUTH OF THE CONTENTS

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THE FOLLOWING DO NOT BELONG TO CLASSIFICATION 3:

NOT PROOF OF THE TRUTH OF THE CONTENTS

E-MAILS SMS’S SCANNED DOCUMENTS FACSIMILES

ONLY PROOF OF THE CONTENT THAT WAS ENTERED ONTO THE EQUIPMENT;

WHAT STANDS TO BE PROVED WILL DETERMINE WHETHER IT IS REAL EVIDENCE OR

DOCUMENTARY EVIDENCE18

EVIDENCE EMANATING FROM ELECTRONIC EQUIPMENT

(ALL THREE CLASSIFICATIONS), AND

VIDEOS, AUDIOS, RECORDINGS FROM SURVEILLANCE

EQUIPMENT AND THE LIKE, CAN BE ADMITTED UNDER

THE ELECTRONIC COMMUNICATIONS ACT 25 OF 2002.

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1ST CLASSIFICATION(REAL EVIDENCE)

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THE COURTS ALREADY IDENTIFIED REAL EVIDENCE OF A

DOCUMENTARY NATURE IN 1976, WITHOUT REFERRING

TO IT AS SUCH.

THIS IS THE CASE WHERE THE PRINTOUT CAME ABOUT

BY THE COMPUTATION, SORTING, COLLATING AND

SYNTHESISING OF DATA BY THE COMPUTER AND NOT BY

A PERSON.

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CASE LAW 1st CLASSIFICATION

1. NARLIS v SOUTH AFRICAN BANK OF ATHENS 1976 (2)

SA 573 (A): Holmes JA, Jansen JA, Rabie JA, Kotzé AJA, and Viljoen AJA

SECTIONS 33 TO 38 OF THE CIVIL PROCEEDINGS EVIDENCE ACT 25 OF 1965;

SECTION 222 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 Subsection (4) of section 34

2. HARPER 1981 (1) SA 88 (D): Milne J

3. DE VILLIERS 1993 (1) SACR 574 (Nm): O’Linn J, Teek J

4. NDIKI 2008 (2) SACR 252(Ck) (EXHIBITS D5-9): Van Zyl J

SECTION 221 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

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2ND CLASSIFICATION(DOCUMENTARY EVIDENCE)

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CASE LAW 2nd CLASSIFICATION

1. NDLOVU v MINISTER OF CORRECTIONAL SERVICES [2006] 4 All SA 165 (W): Gautshi AJ SECTION 3(1)(c) OF THE LAW OF EVIDENCE AMENDMENT ACT 45 OF

1988; DECLINED TO APPLY SUBSECTION (4) OF THE ECT ACT. SECTION 15(1), (2) AND (3) OF THE ELECTRONIC COMMUNICATIONS

ACT 25 OF 2002 (ECT);

2. NDIKI 2008 (2) SACR 252 (CK); (Exhibits D1-D4): Van Zyl J SECTION 222 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977; SECTION 3(1) OF ACT 45 OF 1988

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SECTION 15 OF THE ECT ACTAdmissibility and evidential weight of data messages15. (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 - (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 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;(c) the manner in which its originator was identified; and(d) any other relevant factor.(4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.

3RD CLASSIFICATION(REAL EVIDENCE)

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CASE LAW 3rd CLASSIFICATION

1. EX PARTE ROSCH [1998] 1 ALL SA 319 (W): (Full Bench) Flemming DJP, Leveson and Blieden JJ COMMON LAW (LANDLINE TELEPHONE PRINTOUT)

3. DOS SANTOS 2010 (2) SACR 382 (SCA) (CELLPHONE AND SURVEILLANCE RECORD)

4. MDLONGWA 2010 (2) SACR 419 (SCA) (SURVEILLANCE)(BANK ROBBERY OF BUILDING SOCIETY AT DUNDEE)

5. S v NINGISE AND OTHERS CASE NO: CC4/2002 (HIGH COURT OF NAMIBIA): Silungwa J Delivered 22/2/2006. (This case can be found on GOOGLE). SECTION 221 OF THE CPA (CELLPHONE RECORD)

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HARPER 1981 (1) SA 88 (D)v

S v NINGISE AND OTHERS, CASE NO: CC4/2002 (Nm)

“‘document’ includes any device by means of which information is recorded or stored” see definition in section 221 of the Criminal Procedure Act.

Harper: Applied the ordinary meaning of the word ‘document’ which is wide enough to include computer printouts, to admit computer processed information (clasification 1). See 96C-F;

Ningise: Applied the extended definition of ‘document’ to admit a printout where the device which printed the cell phone records, only records and stores (classification 3) the information, where interconnectivity is in issue.

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RELIABILITYCASE LAW

1. S v DE VRIES (67/2005) [2008] ZAWCHC 36 (10 JUNE 2008) (WESTERN CAPE HIGH COURT) See from par 92 of the report. www.saflii.co.za (CELLPHONE RECORDS)

2. MDLONGWA 2010 (2) SACR 419 (SCA) 424g – 4215b

3. DOS SANTOS 2010 (2) SACR 382 (SCA)

4. S v VAN DER VYVER (SS 190/06) [2007] ZAWCHC 69 (29 November 2007) www.saflii.co.za

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THE EFFECT OF EX PARTE ROSCH ON THE LAW OF EVIDENCE

EXTENDS THE LAW RELATIVE TO THE ADMISSIBILITY OF VIDEOS AND AUDIOS (FUHRI 1994 (2) SACR 829 (A)) TO COMPUTER PRINTOUTS FROM MECHANICALLY OPERATED EQUIPMENT: : REAL EVIDENCE PROOF OF THE TRUTH OF THE CONTENTS NOT HEARSAY EVIDENCE ORIGINAL NOT IN QUESTION PROOF OF FUNCTIONAL RELIABILITY BY:

JUDICIAL NOTICE EXPERT EVIDENCE LAYMEN’S EVIDENCE

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THE EFFECT OF NDIKI (EXHIBITS D5-D9) ON THE LAW OF EVIDENCE

EXTENDS THE LAW RELATIVE TO THE ADMISSIBILITY OF VIDEOS, AUDIOS AND COMPUTER PRINTOUTS FROM MECHANICALLY OPERATED EQUIPMENT (EX PARTE ROSCH) TO COMPUTER PRINTOUTS WHERE THE COMPUTER PROCESSED THE INFORMATION: REAL EVIDENCE OF A DOCUMENTARY NATURE PROOF OF THE TRUTH OF THE CONTENTS NOT HEARSAY EVIDENCE ORIGINAL NOT IN QUESTION PROOF OF FUNCTIONAL RELIABILITY OF COMPUTER SOFTWARE

AND OPERATING SYSTEM BY: JUDICIAL NOTICE? EXPERT EVIDENCE LAYMEN’S EVIDENCE?

HAVING SAID THAT, THE COURT IN NDIKI ADMITTED THE PRINTOUT AS REAL EVIDENCE OF A DOCUMENTARY NATURE UNDER SECTION 221 OF THE CPA

S v DE VRIES (67/2005) [2008] ZAWCHC 36 (10 JUNE 2008) (WESTERN CAPE HIGH COURT)

(CELLPHONE RECORDS)

THIS CASE CAN BE FOUND ON www.saflii.co.za

Robbery of a truck carrying a large consignment of cigarettes. See from par 92 of the report.

RELIABILITY:

WITNESS 1 (MTN): “IN ITS BASIC FORM THE DATA IS IN ELECTRONIC FORMAT AND CANNOT BE MANIPULATED OR FALSIFIED. IT CAN ONLY BE MANIPULATED WHEN COPIED TO Excel SPREAD SHEETS BUT CERTAINLY NO SUCH MANIPULATION TAKES PLACE WITHIN MTN.”

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S v DE VRIES (CONTINUE)

WITNESS 2 (MTN): “ HE IS RESPONSIBLE FOR THE OPERATION OF THE SYSTEM. … THE OPERATING SYSTEM ARE PRE-TESTED TO THE HIGHEST POSSIBLE LEVEL OF SECURITY AND ERROR-FREE OPERATION AND ARE PROTECTED AGAINST HARDWARE FAILURE. …PROPERLY MAINTAINED, MONITORED ON A CONTINUOUS BASIS AND DELIVER A VERY HIGH LEVEL OF RELIABILITY AND SECURITY. … NO REASON TO INFER THAT ANY … RECORDS (ARE) INACCURATE OR HAD BEEN TAMPERED WITH.”

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S v DE VRIES (CONTINUE)

WITNESS 3 (VODACOM): “… FORENSIC LIAISON MANAGER. … RECEIVED INTERNAL TRAINING IN THE USAGE OF CELL PHONES AND THE WORKING OF THE VODACOM SYSTEMS FROM ENGINEERS … THE SYSTEMS … ARE THE BILLING AND ADMINISTRATION SYSTEMS WHEREBY CELL PHONE DATA AND OWNERSHIP IS DETERMINED. SHE PERSONALLY DOWNLOADED ALL THE DATA . THE DATA WAS NEVER TAMPERED WITH NOR CHANGED IN ANY WAY EXCEPT TO SORT IT INTO CHRONOLOGICAL ORDER.”

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S v DE VRIES (CONTINUE)

WITNESS 4 (VODACOM): “HE STATED THAT OVER THE PAST THREE YEARS THE PROVIDER HAD EXPERIENCED NO PROBLEMS IN RELATION TO (THE) SAID SYSTEMS AND THAT CELL PHONE DATA CANNOT BE MANIPULATED.”

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R Krige

21 September 2012