Electronic Evidence In Criminal Proceedings

ABSTRACT

The research question central to the thesis is stated as follows: what are the implications of new technological

phenomena in South African law to the existing legal frameworks in relation to (i) investigatory powers of law

enforcement and security and intelligence agencies to obtain electronic evidence, and (ii) its subsequent

admissibility in criminal proceedings? Written with an emphasis on South African law, but also taking into

account aspects of foreign and international law, the thesis seeks to investigate how our existing legal frameworks

which regulate the use of and access to electronic evidence in criminal proceedings, including its admissibility,

integrate and adapt to challenges raised by new and rapidly changing technological developments.

The thesis provides a critical analysis of the existing legal framework regulating certain key investigative powers

of law enforcement and security and intelligence agencies in the current modern environment of the information

age in which they operate. Key among them is the Regulation of Interception of Communications and Provision

of Communication-Related Information Act 70 of 2002. New technology has not only increased opportunities for

criminal activity, it has also created opportunities for law enforcement and security and intelligence agencies to

have access to more sophisticated and new capabilities. The range of intrusive capabilities now available to law

enforcement and security and intelligence agencies triggers a range of issues and challenges for individual rights,

including how those capabilities are used in investigation activities, the scale of their use, the extent to which such

capabilities intrude on privacy rights, legislative authority for their use and safeguards that constrain and regulate

such new technological capabilities. The challenges of regulating investigative powers in an era of new and fastpaced

technological developments is explored in relation to (i) interception of communications (ii) acquisition

and retention of communications data, and (iii) access to encrypted information.

The introduction of electronic evidence in criminal legal proceedings raises unique challenges in the South African

law on evidence. The most interesting perhaps is the extent to which the nature of the evidence presented, in this

instance electronic evidence, impacts on admissibility in criminal proceedings. Potential anomalies arise as the

relevant legislation, the Electronic Communications and Transactions Act 25 of 2002, is based on an electronic

commerce model law concerned with commercial activities. In this regard, two separate issues are the focus of

research interest. The thesis offers a rethinking of (a) admissibility of electronic evidence and (b) its weight. The

meaning and application of certain statutory provisions, insofar as it applies to electronic evidence as hearsay or

real evidence, or both, are key and controversial issues. Another relates to the business records exceptions, which

directly translated for electronic records appears to have created a problematic presumption. On matters of

evidential weight, there is no ‘one-size-fits-all’ approach that will work. While a robust consideration of

authentication is required in the court’s assessment of evidential weight of electronic evidence, it should not be

subject to inflexible tests that make it difficult for authentic electronic evidence to be admitted into evidence.

A central premise of the thesis is that evolving technological phenomena can and do present challenges to existing

legal concepts on evidence and the investigatory powers of law enforcement and the security and intelligence

agencies to obtain electronic evidence and for its admissibility in criminal proceedings. This is done in the context

of understanding whether South African law has developed appropriately in response to advancements in

technology. In the final analysis, the thesis considers appropriate and meaningful reform towards a modern and

transparent legal framework in South African law.