4. Legal Aspects of the Enforcement of Cyber-crimes (Procedural and Evidential aspects of Cyber-crimes)
4.1 Admissibility and Evidential Weight of Data Messages (ECT Act, Section 15)
After much legal uncertainty as to the admissibility of a printout in Court in terms of the Old Computer Evidence Act, Section 15 of the ECT now states that the rules of evidence must not be used to deny admissibility of data messages on grounds that it’s not in original form. A data message made in the ordinary course of business, or a printout correctly certified to be correct is admissible evidence. Section 15 of the ECT Act provides for the admissibility and evidential weight of a data message as electronic evidence. It is clear from the wording in section 1 that it sets out to facilitate rather than inhibit the admissibility of data messages as electronic evidence (Watney, 2008, p.3).
Section 1 defines that a data message means 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. Data is defined as the electronic representation of information. It is in fact stated that a data message will not offend the best evidence rule on the ground that it is not in its original form (Ibid). It constitutes rebuttable proof of its contents when it is produced in the form of a print-out (compare the case of S B Jafta v. Ezemvelo KZN Wildlife (Case D204/07) where a e-mail used to accept an employment contract was regarded as conclusive proof that the said employment had been accepted).
The Act now states that Data messages shall be admissible giving due regard to reliability of manner of storage, generation and communication, reliability of admission manner of maintenance of message, manner in which originator is identified, and any other relevant factor. In other words the Act creates a rebuttable presumption of that data messages and/or printouts thereof are admissible in evidence (See also the controversial case of S v. Motata Johannesburg District Court case number 63/968/07 (unreported) at 622, where electronic information ( data in the form of images and sound) from a cell phone was admitted into evidence in a trial within a trial).
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