An analysis of the regulatory environment governing electronic evidence in South Africa: suggestions for reform

Swales, Lee

An analysis of the regulatory environment governing electronic evidence in South Africa: suggestions for reform

Doctoral Thesis

2019

Abstract

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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PhD / Doctoral

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