Base de données sur la législation

Documentary evidence from computer records
15.  (1)    In any trial, a statement contained in a document produced by a computer shall be admitted as evidence of any fact stated therein of which direct oral evidence would be admissible, if it is shown that
(a) the computer was used to store, process or retrieve information for the purposes of any activities carried on by any body or person ;
(b) the information contained in the statement reproduces or is derived from information supplied to the computer in the course of these activities; and
(c) while the computer was so used in the course of those activities
(i) appropriate measures were in force for preventing unauthorized interference with the computer; and
(ii) the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation, was not such as to affect  the production of the document or the accuracy of its contents.

(2).    Notwithstanding subsection (1) and subject to subsection (3), a statement contained in a document produced by a computer used over any period to store, process or retrieve information for the purposes of any activities (hereinafter referred to as the "relevant activities") carried on over that period shall be admitted in any trial as evidence of any fact stated therein of which direct oral evidence would be admissible if
(a) it is shown that no person, other than, in the case of a criminal trial, an accused in respect of an offence to which the statement relates, who occupied a responsible position during that period in relation to the operation of the computer or the management of the relevant activities
(i) can be found; or
(ii) if found, is willing or able to give evidence relating to the operation of the computer during that period ;
(b) the document was so produced under the direction of the person having practical knowledge of and experience in the use of computers as a means of storing, processing or retrieving information ; and
(c) at the time that the document was so produced the computer was operating properly or, if not, any respect in which it was not operating properly or was out of operation, was not such as to affect the production of the document or the accuracy of its contents.

(3)    A statement contained in a document referred to in subsection (2) which is tendered in evidence in a criminal trial by or on behalf of an accused in respect of an offence to which the statement relates shall not be admissible under subsection (2) if that person, being the accused, occupied a responsible position during that period in relation to the operation of the computer or the management of the relevant activities.

(4)    Where over a period the function of storing, processing or retrieving information for the purposes of any activities carried on over that period was performed by computer, whether
(a) by a combination of computers operating over that period ;
(b) by different computers operating in succession over that period ;
(c) by different combinations of computers operating in succession over that period ; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose whether by one or more bodies or persons during that period shall be treated for the purposes of this section as constituting one computer.

(5).    Subject to subsection (6), in any trial where it is desired to give a statement in evidence under this section, a certificate
(a) identifying the document containing the statement and describing the manner in which it was produced, and explaining, so far as may be relevant in the trial, the nature and contents of the document ;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer ;
(c) dealing with any of the matters to which the conditions mentioned in subsection (1)(a) to (c) relate; and
(d) purporting to be signed by the person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be,
shall, on its production without further proof, be admitted in the trial as evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(6).    Unless the court otherwise orders, a certificate shall not be admitted in evidence under subsection (5) unless 14 days' notice in writing of the intention to tender the certificate in evidence, together with a copy thereof and of the statement to which it relates, has been served
(a) in a civil trial, by the party tendering such certificate on any other party thereto who is likely to be adversely affected in the trial by the statement if admitted in evidence under this section ;
(b) in a criminal trial
(i) if the certificate is tendered by the prosecutor, on the accused or, if more than one, on each accused, or legal practitioner representing the accused;
(ii) if such certificate is tendered by the accused, on the Attorney General,
but nothing in the subsection shall affect the admissibility of a certificate in respect of which notice has not been served in accordance with this subsection if no person entitled to be so served objects to its being so admitted.

(7).    Notwithstanding subsection (5), a court may, except where subsection (2) applies, require oral evidence to be given of any matter mentioned in subsection (5).

(8).    A person who in a certificate tendered in evidence under subsection (5) makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and shall be liable to imprisonment for 2 years and to a fine of R10,000.

(9).    For the purposes of this section
(a) information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form, and whether it is so supplied directly or, with or without human intervention, by means of any appropriate equipment ;
(b) where in the course of activities carried on by any body or person, information is supplied with a view to its being stored, processed or retrieved for the purposes of these activities by a computer operated otherwise than in the course of these activities, that information, if duly supplied to that computer shall be taken to be supplied to it in the course of these activities ;
(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or, with or without human intervention, by means of any appropriate equipment.

(10).    Nothing in this section affects the admissibility of a document produced by a computer where the document is tendered otherwise than for the purpose of proving the fact stated in it.

(11).    Subject to subsection (4), in this section "computer" means
(a) any electronic device for storing, processing or retrieving information, and any reference to information being derived from other information is a reference to its being derived therefrom by calculation, comparison or any other process; and
(b) any other device or category of device which the President may by Notice published in the Gazette specify.

(12).    The President may by Notice published in the Gazette extend the meaning of computer in subsection (11).


Provision supplementary to sections 13, 14 and 15
16.  (1)    Any reference in section 13 or section 14 to a person acting under a duty includes a reference to a person acting in the course of any occupation in which he is engaged or employed or for the purposes of any paid or unpaid office held by him.

(2)    Where in a trial a statement contained in a document is admissible in evidence under section 14 or section 15, it may be proved by the production of that document or, whether or not that document is in existence, by the production of a copy of that document or of the material part thereof.

(3)    Where in a trial a statement contained in a document is admitted in evidence by virtue of section 14 or section 15, the court may draw any reasonable inference from the circumstances in which the statement was made or otherwise came into being or from any other circumstances, including the form and contents of the document in which the statement is contained.

(4)   In estimating the weight, if any, to be attached to a statement admitted in evidence under section 14 or section 15, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular
(a) in the case of a statement falling within section 14, to the question whether or not the person who supplied the information from which the record containing the statement was compiled did so contemporaneously with the occurrence or existence of the fact dealt with in that information, and to the question whether or not that person, or any person concerned with compiling or keeping the record containing the statement, had any incentive to conceal or misrepresent the facts; and
(b) in the case of a statement falling within section 15, to the question whether or not the information which the information contained in the statement reproduces or is derived from was supplied to the relevant computer, or recorded for the purposes of being supplied to it, contemporaneously with the occurrence or existence of the facts dealt within that information, and to the question whether or not any person concerned with the supply of information to that computer, or with the operation of the computer or any equipment by means of which the document containing the statement was produced by it, had any incentive to conceal or misrepresent the facts.

(5)    Nothing in section 14 or section 15 shall prejudice the admissibility of any evidence that would be admissible apart from that section.