S v Mathikinca

  • This case dealt with the appeal of a conviction of the rape of a child based on a report by the complainant to the mother coupled with medical evidence. However the complainant was not called as a witness and thus requested the court to remit the matter back to the previous court for the leading of further evidence.
  • The court held it was trite that the complainants version were admissible in order to establish consistency in their evidence but the failure to give evidence ordinarily rendered the complaint in itself inadmissible.
  • The court went onto hold that the State could not rely on section 3 of the Law of Evidence Amendment Act, providing for the admission of that evidence which constitutes hearsay evidence, as the State had not provided any such grounds for leading such.
  • Therefore the court held such evidence could not be relied upon and set the conviction and sentence aside.

S v Pilane

  • The case dealt with an oath being administered to witnesses who were subsequently sworn in by the interpreter and not the presiding officer. The court therefore had to determine whether such oaths were properly administered.
  • The court held that according to section 162 of the Criminal Procedure Act 51 of 1977, the oath is to be administered by a judicial officer. The oath therefore being administered by the interpreter was improper and as a result all evidence provided by these witnesses were rendered inadmissible.

S v Miller and Others

  • This case dealt with the admissibility of evidence lead in court from a cellphone. It was conceded by the accused that such a subpoena for the obtaining of evidence was both flawed and invaded their right to privacy as contained in the Constitution.
  • The court held that even though there was no date on the subpoenas, on consideration  of the purpose of the date coupled with the fact that if the person were willing to provide such evidence that would be the end of the matter as the date would be irrelevant, the subpoenas were seen to be valid.
  • The court noted that an incorrect date would not warrant it to be merely ignored and that even though the court could not pronounce upon whether the information contained in the documentation went further than the detail of the subpoena, it would not be in the interests of justice to exclude such evidence. Furthermore the court held that the IMEI numbers were widely known and there was no secrecy to them in this regard.
  • The court held in relation to the defence of the invasion of privacy, such evidence would not be excluded on this basis in light of the extremely high crime rate as such is required to bring some sort of balance to the justice system in this regard. The evidence was therefore held to be admissible.


S v Brown

  • This case dealt with whether images found on a cellphone were admissible. It was contended by the defense that the integrity of the chain of safekeeping of such evidence had not been proven ; that such evidence was hearsay; was not covered by the subpoena issued and that such constituted an invasion of privacy.
  • The court held that the Electronic Communications and Transactions Act 25 of 2002 followed an inclusionary approach favouring the admissibility of electronic evidence but does not exclude the common law rules of evidence. Therefore its admissibility would depend on whether it was treated as real evidence or documentary evidence.
  • The court held such images were treated as documentary evidence and it was thus required that the document itself had to be produced together with the documents authenticity being proven in order for it to be admissible.
  • The court held that no evidence had shown tampering and that the requirements in section 14 of the ECTA were met. However section 15(1)(b) provided an exemption to messages from the requirement of ‘original form’ in the event of it being the best evidence that the person could reasonably be expected to obtain as it was in this instance.
  • The court held the accused consistently denied the phone belonged to him and therefore in this instance the right to privacy would not be applicable. Therefore such evidence was held to be admissible.

S v Eke 

Harvey v Niland and Others

  • This case dealt with the admissibility of evidence obtained through the social media platform of Facebook. The respondent argued such infringed his right to privacy and had been obtained through an illegal manner, namely the commission of an offence in terms of section 86(1) of the Electronic Communication and Transactions Act 25 of 2002.
  • The court however held that section 86(1)’s silence on such evidence’s admissibility,  indicated it to be admissible subject to the common law discretion of courts to exclude it.
  • Therefore even if it were unlawfully acquired, its admissibility would be dependent on the nature and extent of the infringement of ones right to privacy and wether it could be obtained in another lawful manner.
  • The court noted as one moved into the business and social spheres, ones right to privacy would become more and more constricted and that the evidence in question were business communications and were thus relevant to the respondents fiduciary duties. The evidence could not have been procured in any other lawful way and thus the right to privacy was outweighed by its public interest. The evidence was therefore admissible.

Disclaimer: All information contained herein does not constitute legal advice in any form or manner nor is it intended. All legal advice must be obtained or gained from a consultation with a qualified lawyer. The views and opinions expressed are those of the cited authors and not those of the publishers of iGazette. iGazette accepts no liability for any information which may be incorrect.

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