Means of proof: product of

a device or apparatus.
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Chapter 12 on Law of Evidence & chapter 21 on Principles of Evidence.

General principles.
• Discovery and proof of authenticity: The discovery procedure was designed for
documents. Its purpose is to give litigants access to the documents their
opponents will use.
• High Court rule 35(9) makes provision for admission by the opponent that a
litigant's tape recordings, as well as his documents, were properly executed
and are what they purport to be.
• Proof of reliability: When the product of a device is adduced in evidence, not
only does it have to be proved to be authentic, but there also must be
evidence that it functioned properly.
• Proof of reliability is usually furnished by the evidence of an expert or at least
a lay person who knows the instrument concerned and can give evidence
about his experience of it.
• It is not always necessary to explain to the court the internal
functioning of an apparatus or machine. If it can be proved by means
of tests that the apparatus is functioning properly, this is usually
sufficient.
• It is often not (or not only) the reliability of the apparatus that must
be proved, but also the reliability of the person or persons who used
it. This occurs where a person has a role to play as an operator.
• Sometimes a witness may demonstrate to court how the device
functions or functioned at the time of the recording.
Photographs.
• A photograph, like a document, can sometimes be regarded as real
evidence.
• This is the case when, for example, the photograph is an obscene object
found in the possession of the accused or is a stolen thing or contains
fingerprints.
• When, however, the photograph is introduced to prove what was
recorded by the camera, it becomes more like a document.
• However, a photograph differs from a document in that it normally
does not reflect a person's thoughts but depicts visible objects.
• Today there is a tendency to view photographs as real evidence.
• In S v W 1975 3 SA 841 (T) 843A, photographs and a videotape of a
dance were described as real evidence.
• In S v Fuhri 1994 2 SACR 829 (A), the appeal court found that the
photograph of a motor vehicle whose driver was committing a traffic
offence, was admissible real evidence.
• When a photograph is adduced as evidence there must usually be
supporting evidence showing who took the photograph and where it
was taken; and the content (persons and or objects) will have to be
identified.
• Sometimes additional evidence will also be necessary to explain the
content or interpret it.
• Today the courts often use photographs for identification, either by
comparing photographic enlargements of fingerprints or by showing a
witness a photograph of a person or object to enable him to say
whether there is a resemblance to a person or object he has
previously seen.
• Photographs have also been used, inter alia, to give the court an
image of an object not easily shown to the court (such as a vehicle) or
a crime or accident scene; of a person's appearance or of an event
photographed while it was happening.
• Today photographs are also used as a means of proof at speed traps.
Sound recordings.
• From the point of view of the law of evidence, a device that stores
and reproduces sound fulfils the same function as a photograph.
• It makes little difference that in one case it is sound and in the other
an image that is stored.
• On the other hand, a sound recording also gives rise to particular
problems.
• Falsification of the content is possible; the recording is often unclear;
one does not see the source of the sound unless the sound is
accompanied by an image; it can often be heard by only one person
at a time.
• A witness or witnesses must be able to identify the recording and also
show its relevance.
• Therefore there must be proof that the recording was made on the
occasion on which it is alleged to have been made and that it is an
accurate or a true recording; and in addition the voices must be
identified.
Videotapes.
• In various cases it has been used to show alleged crimes or scenes of
crimes.
• S v Ramgobin 1986 4 SA 117 (N) - It was held in this case that a tape and
its content must be identified, that the court must be satisfied that it is
the original recording and that it is authentic and reliable and not falsified.
• S v Mpumlo and S v Baleka.
• This view was not shared in Mpumlo and Baleka (1).
• These judgments represent the view that a court ought to admit a recording, even
a defective one, provided there is sufficient supporting evidence to prove its
relevance. Defects therefore affect weight rather than admissibility.
• It has already been suggested that the latter approach is to be preferred.
Are video recordings documents or real
evidence?
• Video recordings were regarded as a document in Ramgobin, but
Baleka supports the view in Mpumlo that it is real evidence.
• The latter view is, without discussion, accepted in S v Mdlongwa 2010
2 SACR 419 (SCA) para 22.
Computer evidence: electronically
recorded and transmitted information.
• The use of computers has become the defining characteristic of the modern
world.
• The result is that evidence in judicial proceedings is increasingly taking the
form of electronic evidence.
• South African courts take the view that all relevant evidence is admissible
unless excluded by some other rule of evidence governing admissibility.
• Electronic evidence must further overcome the rules relating to authenticity
and the production of the original version.
• The ECT Act is a comprehensive document, which aims to be an enabling
piece of legislation that will permit and regulate the use of electronic data in
civil and criminal proceedings.
• The ECT Act moves beyond the concept of “computer printouts” and
focuses on the terms “data” and “data messages”.
• The Act defines data as “electronic representations of information in any
form” and data messages as “data generated, sent, received or stored by
electronic means and includes — (a) voice, where the voice is used in an
automated transaction; and (b) a stored record.”
• Section 15 of the ECT Act regulates the admissibility and evidential weight
of data messages.
• “In any legal proceedings, the rules of evidence must not be applied so as to deny
the admissibility of a data message, in evidence —
• on the mere grounds that it is constituted by a data message; or 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.”
• In so far as the formal requirements of signature are concerned, s 13
provides for compliance by way of the use of an electronic signature to be
attached to a data message.
Section 15 versus Hearsay Evidence.
• Ndlovu v The Minister of Correctional Services And Another –
• “Where the probative value of the information in a data message depends
upon the credibility of a (natural) person other than the person giving the
evidence, there is no reason to suppose that section 15 seeks to override the
normal rules applying to hearsay evidence. On the other hand, where the
probative value of the evidence depends upon the ‘credibility’ of the
computer (because information was processed by the computer), section 3 of
the Law of Evidence Amendment Act 45 of 1988 will not apply, and there is
every reason to suppose that section 15(1), read with sections 15(2) and (3),
intend for such ‘hearsay’ evidence to be admitted, and due evidential weight
to be given thereto according to an assessment having due regard to certain
factors.”
• Then in La Consortium & Vending CC t/a La Enterprises v MTN Service Provider (Pty)
Ltd Malan J, writing for the full bench of the South Gauteng High Court, took the
following view regarding admissibility:
• “The definition of ‘data message’ in s 1 is sufficiently wide to include not only real, but also
hearsay, evidence. This follows from the wide description of ‘data’ as the ‘electronic
representations of information in any form’, but also from the definition of ‘data message’ as
‘data generated, sent, received or stored by electronic means’, including ‘(a) voice, where the
voice is used in an automated transaction; and (b) a stored record’. This, however, does not
mean that hearsay is admissible just because it is contained in a data message. The principle
of ‘functional equivalence’ does not free data messages from the normal strictures of the law
of evidence . . .”
• More recently, the SCA in Firstrand Bank v Venter summarised s 15 by noting that it
“facilitates the use of and reliance on a data message “
• The SCA expressed an interpretation of s 15 to focuses on the enabling character of
the section rather than a view that it prescribes the admission of all data messages.
• As a result, the body of emerging case law is taking the approach that s 15 permits
the admissibility of data messages, however, the ordinary South African law on
admissibility of evidence must still apply.
Data Messages as Real Evidence.
• The law of evidence in South Africa distinguishes a distinction
between documentary evidence and real evidence.
• The question is whether a data message may take the form of real
evidence? In this regards a distinction needs to be drawn between
“computer-generated” and “computer-assisted” data.
• In Ex Parte Rosch the court was called upon to consider the admissibility of a series
of automatically generated computer print-outs regarding the details of telephone
calls. The court held as follows:
• “On behalf of the appellant it was submitted that the admission of this document offends
against the hearsay rule. In our view there is no substance in this submission. The computer
is not a witness who stated what he did not himself know. The printout is real evidence in
the sense that it came about automatically and not as result of any input of information by a
human being. There is therefore no room for dishonesty or human error. The printout in the
present case is similar to the radar diagram produced in the English case of The Statue of
Liberty: Owners of the Motorship Sapporo Maro v Owner of Steam Tanker, Statue of Liberty
[1968] 2 All ER 195 (PDA) where such a document was admitted as evidence.”
• On this basis the computer-generated printouts were treated as real evidence and
held admissible.
• In S v Ndiki and Others Van Zyl J considered the admissibility of two kinds of
computer print-outs. Some were generated by a computer following human input.
These the judge classified as hearsay.
• But the print-outs produced without human intervention, were regarded as real
evidence and were therefore held admissible.