Electronic evidence is the most common evidence produced during both criminal and civil proceedings. Whether it’s video footage, an electronic copy of a contract, or a document signed with an electronic signature, electronic evidence is more convenient and realistic to produce than physical evidence. So why is it such a tricky topic in South African law?
Why is electronic evidence a difficult topic?
Court proceedings are, at a very basic level, elaborate arguments. The court must decide which party’s version of events it must believe, and both parties try to prove their versions by giving evidence. Obviously, that evidence must be relevant and true. It must not be tampered with in any way. The law of evidence has grown over many years to make sure that evidence is heavily tested before it is admitted into court. Systems have been developed to be as certain as possible that the evidence presented will be a true reflection of real events, and that it will treat both parties fairly.
Today, the law of evidence lags behind reality. With the growth of widespread use of computers to conduct business, record video and even enter into and conclude contracts, more and more evidence is being created electronically. The current systems for the court to test whether evidence is true and relevant don’t fully take into consideration the unique circumstances of electronic evidence. This is an exceptionally important area of law to develop, because roughly 80% of the evidence presented at court today is electronic evidence.
Updating the law of electronic evidence
The South African Law Reform Commission (SALRC) has been handling the difficult task of updating the law of evidence since the early 1970’s. Its goal is to bring the law of evidence in line with the realities of the modern world. This is an ongoing and never-ending process. New ways of communicating are always being developed and taken up across the globe. One of the main focuses of the SALRC right now is updating the law of evidence to deal with the unique issues around electronic evidence.
- In 2010, the SALRC published an issue paper on the Review of the Law of Evidence (Electronic Evidence in Criminal and Civil Proceedings: Admissibility and Related Issues).
- This was followed up in 2015 with a discussion paper, which offered some solutions and asked for interested parties to make comments.
- In February 2019, the Department of Justice published the SALRC’s report on their review of the law of evidence (ISBN: 978-0-621-45389-8). It appears that the SALRC submitted the report to the Minister of Justice and Correctional Services on 31 March 2017.
You can find the most important documents about the process and read more about the proposed amendments at the SALRC website.
The SALRC’s report on their review of the law of evidence
The report is very comprehensive and is 145 pages long. Some of the key points.
- The ECT Act has facilitated electronic commerce and whilst some sections have stood the test of time, others have become obsolete or redundant.
- The report looks not only at electronic evidence but also electronic signatures.
- The SALRC recommends that the ECT Act be reviewed and updated, including the parts dealing with electronic signatures.
- The SALRC recommends that Parliament adopt an Electronic Evidence Bill (or aka the Law of Evidence Bill) to clarify the criteria for the admissibility of certain types of electronic evidence and its evidentiary weight. The draft Law of Evidence Bill is attached as Annexure A to the report.
What should you do?
The law of evidence affects everyone who wants to go into court proceedings. It is difficult to tell what the amendments will say in the end, and what the best way to prepare yourself will be. For now, though, it is important to think about what changes you can make to your records management processes. This way, you can keep yourself protected if you ever need to submit electronic evidence to a court. These are some things that you can consider.
- Sign electronic documents with officially-recognised electronic signatures.
- Make sure that your contracts state that electronic documents have just as much force as physical documents.
- Make sure that you don’t delete any metadata that relates to electronic evidence.