An analysis of the judicial and legislative attitude to hearsay electronic data in South Africa

Abstract

The conventional rules of hearsay, real and documentary evidence cannot pragmatically be applied to all forms of electronically stored information. To apply documentary rules to all forms of electronic information will be creating a functional equivalency of paper evidence/documents to electronic evidence. 230 The potential risk of classifying data as either exclusively real evidence or documentary evidence is that there might be attributes of either classification that do not fit the evidence being evaluated such as the application of hearsay to a data message. 231 It is suggested that such restrictive classifications such the requirement that data in electronic form should be original creates some absurdities, as Mason points out. 232 It is also suggested that the SALRC’s recommendations do not adequately address the lacunae. Consequently, it is recommended that there are clearer definitions of what constitutes electronic information, which can be considered a statement in electronic form that is contained in documents and electronic data that are created wholly by electronic algorithms and software. It is also recommended that the rules regulating each of these types of information on authentication, best evidence, relevance, admission, presumption, and weight ascription are defined individually to avoid inconsistencies in the classification of evidence.