Electronic instruments – A presumption of reliability, a presumption of regularity, judicial notice, or none of the above?

Authors Lee Swales

ISSN: 1996-2118
Affiliations: Lecturer, University of KwaZulu-Natal
Source: South African Journal of Criminal Justice, Volume 31 Issue 2, p. 189 – 211


Despite section 15 of the Electronic Communications and Transactions Act 25 of 2002 (‘the ECT Act’), in Delsheray Trust v ABSA Bank Limited, the Western Cape Division of the High Court invoked what it referred to as a common law presumption of reliability — based on an Appellate Division criminal appeal from 1975 (S v Mthimkulu) — in order to ensure seemingly valid computer-based evidence was admitted to court. The factors set out by Corbett JA in Mthimkulu in relation to judicial notice can be adapted to ft modern technology: should a court wish to apply the common law when considering the admissibility of data message evidence (as opposed to applying the directly relevant sections of the ECT Act). Mthimkulu and the ECT Act notwithstanding, the South African Law Reform Commission recommends the introduction of a statutory presumption in civil proceedings. Introducing a presumption of this nature to only civil proceedings and leaving a lacuna in the regulation of criminal law may cause confusion and inconsistent application. A review of recent case law suggests there is no urgent need to adopt such a statutory presumption, and for the short term at least, the current legislative framework is better off as it stands.