Computer generated evidence – what evidential weight will be given to it and how best to prove it?
9 January 2012
In a time of modern technology most business operations rely on computer systems and email to store, capture, construct and correspond its work product.As efficient as this may be, when disputes arise or a business finds itself having to provide evidence of its work product, how do computer generated documents stand up as evidence in legal proceedings and which officer of the business should be called to give evidence of the authenticity thereto?
The common law rules of evidence will have to be interpreted widely in today’s computer reliant age to give effect to the Legislatures intent and purpose in acts such as the Electronic Communications and Transactions Act, but businesses must be cognisant that the admissibility of such computer generated evidence will depend on the dependability of its systems and the witnesses which they choose to testify to its authenticity.
In MTN Service Provider (Pty) Limited v L A Consortium Vending CC t/a L A Enterprises and Two Others1 the defendant attacked MTN’s computer generated evidence on the basis that it was inadmissible hearsay evidence. Hearsay evidence is evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving the evidence.
In this case, MTN’s customer failed to pay invoices rendered by MTN for stock sold and delivered, including that of non-physical electronic signal facilities, which once purchased from MTN, would be electronically activated through MTN’s computer systems. MTN demanded payment for the invoices rendered, to which its customer denied receiving the goods. The focus of the evidence was directed at proving delivery of the electronic products, by way of activations on MTN’s computer systems, as well as MTN’s utilisation of an advanced accounting system to manage its stocks and debtors.
MTN called a witness who testified that he was the head of department which was responsible for the capturing of orders and the day to day accounting to customers. The witness gave evidence on the advanced computer system which captured all transactions and orders, automatically calculated the pricing structure for various products and lodged and printed statements.
The court found that this witness was responsible for the correct capturing of such information and essentially, “the bucks stops with him” as head of the department, even though he did not physically capture any of the documents himself. His evidence on any document generated from that computer system constitutes direct evidence as regards the correctness thereof. Although the orders were captured upon receipt of by his staff, in law it must be regarded as if he himself had dealt with the incoming order. It is inconceivable that each and every member of staff should be called to testify for every single order they captured. The court held that a common sense approach would be for the head of a department to testify about the activities of such department.
The Electronic Communications and Transactions Act, 2002, at section 15, states that in any legal proceeding 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. Such data message must be given its due evidential weight.
On assessing the evidential weight of a data message, regard must be had to the reliability of the manner in which the data message was generated, stored or communicated, the reliability of the manner in which the integrity of the data message was maintained, the manner in which its originator was identified and any other relevant factors. Further, a data message made by a person in the ordinary course of business (or a copy or printout of or an extract from such data message), certified to be correct by an officer in the service of such person is admissible in evidence against any person. It is rebuttable proof of the facts contained in such record, copy, printout or extract.
The court found that the documents printed out by MTN and attested to by witnesses were admissible and not hearsay evidence due to the fact that the capturing of the transactions was in the ordinary course of the business of MTN. To the extent that the documents were copies, printouts from the data messages, MTN officers certified the authenticity of the documents. Therefore, on mere production, the documents were admissible and constituted rebuttable proof of the facts contained therein. The documents could not be rejected merely on the grounds that they were not in original form. MTN backed-up the evidential weight of the data messages by calling witnesses who testified to the efficiency and dependability of the sophisticated computer and accounting systems in place at MTN.
1[2007] ZAGPHC 362