Browsing by Author "Schwikkard, P J"

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    An analysis of the regulatory environment governing electronic evidence in South Africa: suggestions for reform
    (2019) Swales, Lee; Schwikkard, P J; Ncube Caroline
    Technology has developed rapidly over the last three decades. Information is regularly transmitted and stored electronically – and only electronically. The use of mobile phones, email, social media, and various electronic messaging services are ubiquitous. However, there are several areas of confusion and inconsistent application in the regulation of electronic evidence in South Africa. As a result, the South African Law Reform Commission (‘SALRC’) has suggested three different methods for law reform, and recommends the most aggressive of these options in the form of a Law of Evidence Bill. In this thesis, I agree with many of the findings made by the SALRC, but I disagree with the option selected for law reform. As suggested by several other stakeholders, rather than a drastic overhaul of the current legal framework, a more cautious amendment of existing legislation would be the more preferable approach. Electronic evidence is primarily regulated by the Electronic Communications and Transactions Act 25 of 2002 (‘ECT Act’), and although it is ageing, it still achieves one of its primary functions, namely facilitating the admissibility and evidential weight of electronic evidence. However, there is room for improvement. This research addresses six primary questions relating to electronic evidence: Namely, whether the definition of data message requires amendment; whether the ECT Act liberates data messages from the exclusionary hearsay rules; whether a presumption of regularity exists in South Africa; whether section 15 of the ECT Act requires amendment; whether it is appropriate to apply different evidentiary considerations to electronic evidence in civil and criminal proceedings; and finally, this research considers the SALRC’s selected option for law reform. This thesis, which adopts a descriptive form of desktop research, concludes that the ECT Act is sufficient to regulate the admissibility of electronic evidence, but that it requires amendment in certain areas, together with the amendment of related legislation in relation to 1) the definition of data message; 2) the hearsay exceptions; 3) terminology and consistency in relation to electronic evidence in South African legislation; and 4) the discovery of electronic evidence.
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    Electronic evidence in criminal proceedings
    (2020) Singh, Nerisha; Schwikkard, P J
    The research question central to the thesis is stated as follows: what are the implications of new technological phenomena in South African law to the existing legal frameworks in relation to (i) investigatory powers of law enforcement and security and intelligence agencies to obtain electronic evidence, and (ii) its subsequent admissibility in criminal proceedings? Written with an emphasis on South African law, but also taking into account aspects of foreign and international law, the thesis seeks to investigate how our existing legal frameworks which regulate the use of and access to electronic evidence in criminal proceedings, including its admissibility, integrate and adapt to challenges raised by new and rapidly changing technological developments. The thesis provides a critical analysis of the existing legal framework regulating certain key investigative powers of law enforcement and security and intelligence agencies in the current modern environment of the information age in which they operate. Key among them is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002. New technology has not only increased opportunities for criminal activity, it has also created opportunities for law enforcement and security and intelligence agencies to have access to more sophisticated and new capabilities. The range of intrusive capabilities now available to law enforcement and security and intelligence agencies triggers a range of issues and challenges for individual rights, including how those capabilities are used in investigation activities, the scale of their use, the extent to which such capabilities intrude on privacy rights, legislative authority for their use and safeguards that constrain and regulate such new technological capabilities. The challenges of regulating investigative powers in an era of new and fastpaced technological developments is explored in relation to (i) interception of communications (ii) acquisition and retention of communications data, and (iii) access to encrypted information. The introduction of electronic evidence in criminal legal proceedings raises unique challenges in the South African law on evidence. The most interesting perhaps is the extent to which the nature of the evidence presented, in this instance electronic evidence, impacts on admissibility in criminal proceedings. Potential anomalies arise as the relevant legislation, the Electronic Communications and Transactions Act 25 of 2002, is based on an electronic commerce model law concerned with commercial activities. In this regard, two separate issues are the focus of research interest. The thesis offers a rethinking of (a) admissibility of electronic evidence and (b) its weight. The meaning and application of certain statutory provisions, insofar as it applies to electronic evidence as hearsay or real evidence, or both, are key and controversial issues. Another relates to the business records exceptions, which directly translated for electronic records appears to have created a problematic presumption. On matters of evidential weight, there is no ‘one-size-fits-all' approach that will work. While a robust consideration of authentication is required in the court's assessment of evidential weight of electronic evidence, it should not be subject to inflexible tests that make it difficult for authentic electronic evidence to be admitted into evidence. A central premise of the thesis is that evolving technological phenomena can and do present challenges to existing legal concepts on evidence and the investigatory powers of law enforcement and the security and intelligence agencies to obtain electronic evidence and for its admissibility in criminal proceedings. This is done in the context of understanding whether South African law has developed appropriately in response to advancements in technology. In the final analysis, the thesis considers appropriate and meaningful reform towards a modern and transparent legal framework in South African law.
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    Evidence
    (2003) Schwikkard, P J
    The court noted in S v Mbelo 2003 (1) SACR 84 (NCD) that `[w]here the age of either an accused or a complainant is material to either the offence or to sentence, hearsay evidence thereof is admissible' (at para 8). (See also S v Moeketsi 1976 (4) SA 838 (O); S v Magqabudi 1983 (4) SA 54 (Tk). Majiedt J also held that a baptismal certificate was not sufficient proof of age. However, the court held that formal admissions made by the accused's legal representative in the pleadings were binding and sufficient proof of the ages in question.
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    Professional incompetence voluntariness and the right to a fair trial
    (2014) Schwikkard, P J
    It is obvious that the right to legal representation, guaranteed in s 35 of the Constitution of the Republic of South Africa must include competent legal representation. The right to legal representation is traditionally viewed as a pre-requisite for the protection of the privilege against self-incrimination.1 If this line of reasoning is pursued it follows that competent legal representation is required to uphold the privilege against self-incrimination. But the following questions arise: how does a court determine incompetence and when will incompetence render a trial unfair?
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    The legal and constitutional significance of Article 74(3) of the Kenyan draft constitution on improperly obtained evidence
    (2004) Mwaniki, Kyalo; Schwikkard, P J
    The rules governing admissibility of improperly obtained evidence vary from one country to another. However, we can categorise the approaches in to two broad groups, i) Exclusionary approach and ii) Inclusionary approach. The exclusionary approach in its rigid form could be traced to the United States of America Supreme Court. The American exclusionary rule is to the effect that any illegally obtained evidence is not admissible. In Weeks v United States the court gave the rationale for the exclusionary rule as meant to protect the rights of citizens as provided in the Constitution and specifically the Bill of Rights. Day J noted, 'If letters and private documents can thus be seized and held and used on evidence against a citizen accused of an offence, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the constitution'. The American exclusionary approach has been adopted in other jurisdiction but in a modified form. The approach has had influence in continental jurisdictions, supranational regional jurisdictions and the evidential systems of international criminal tribunals.