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      An Analysis of the Regulatory Environment Governing Hearsay Electronic Evidence in South Africa: Suggestions for Reform - Part Two

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          Abstract

          The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence in South Africa with a view to suggesting law reform in the light of the most recent proposals put forward by the South African Law Reform Commission. Part one considered the definition of data messages in the context of hearsay electronic evidence and concluded that amendment is required (as suggested by the South African Law Reform Commission). Further, part one sought to answer two additional queries posed in Discussion Paper 131 Review of the Law of Evidence in relation to electronic hearsay, ultimately finding that a data message can constitute hearsay within the meaning of the applicable legislation; further, that South African law must distinguish between data messages produced substantially by a computer or mechanical process and those that rely substantially on the credibility of a person. Part two of this article will review the statutory exceptions to the hearsay rules applicable to electronic evidence, including the controversial section 15(4) of the Electronic Communications and Transactions Act 25 of 2002. Further, part two will analyse the situation in selected foreign jurisdictions where hearsay electronic evidence has had more time to mature and develop (United Kingdom, Canada and United States) with a view to incorporating suggestions that South Africa can implement. Finally, this article will conclude by providing suggestions for law reform in the context of the recommendations put forward by the South African Law Reform Commission, and will suggest that that there must be law reform in at least the following areas: the definition of data messages; the definition of the term document in the statutes applicable to the hearsay exceptions; a distinction between types of electronic evidence insofar as computer-generated evidence with human intervention, and without human intervention is concerned; and more cohesion and alignment with the statutory hearsay exceptions.

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          Most cited references10

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          "Old 'Documents', 'Videotapes' and New 'Data Messages' -A Functional Approach to the Law of Evidence (part 2)" 2010

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            "The Admissibility of Data, Data Messages, and Electronic Documents at Trial" 2015

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              "Electronic Evidence in Criminal Cases" 2006

              J Hofman (2024)
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                Author and article information

                Contributors
                Role: ND
                Journal
                pelj
                PER: Potchefstroomse Elektroniese Regsblad
                PER
                North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
                1727-3781
                2018
                : 21
                : 1
                : 1-34
                Affiliations
                [01] orgnameUniversity of KwaZulu-Natal South Africa
                Article
                S1727-37812018000100018
                10.17159/1727-3781/2018/v21i0a4496
                7a58a97f-3670-4c88-93bd-9c9f9abdd1ee

                This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

                History
                : 11 July 2017
                : 19 March 2018
                Page count
                Figures: 0, Tables: 0, Equations: 0, References: 39, Pages: 34
                Product

                SciELO South Africa


                Electronic evidence,data messages,ECT Act,law of evidence,South African Law Reform Commission,technology and law

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