ELECTRONIC COMMUNICATIONS BY DENNIS SIBUYI

Friday, April 17, 2009
  • SHARE THIS ARTICLE

Certificate in terms of Section 15 of the Electronic Communications and Transactions Act 25 of 2002: useful tool when dealing with the question of admissibility of electronic or data messages in court proceedings
The object of the Electronic Communications and Transactions Act 25 of 2002 (“the Act”), inter alia, is to promote legal certainty and confidence in respect of electronic communications and transactions.
Section 15 of the Act deals with admissibility and evidentiary value of data messages in legal proceedings. The Act defines “data messages” as data generated, sent, received or stored by electronic means and include voice, where the voice is used in automated transactions and stored record.
The developments in the field of information technology have allowed small, medium and big businesses to transact electronically by placing orders and accepting same, delivering and making payments for goods or services through electronic media. During these business transactions, data messages are generated and exchanged, which in turn give rise to contractual obligations between the transacting parties to the extent that an agreement is concluded electronically between the parties.
The question of admissibility and evidentiary value of electronic or data messages arises where one of the transacting parties disputes the agreement concluded via the electronic media. 
A party who wishes to introduce an electronic or data messages in legal proceedings to prove conclusion of a contract or contractual term or obligation therein may in terms of Section 15 of the Act file a Certificate that allows the introduction of electronic or data messages in court proceedings.
Contrary to the defunct Computer Evidence Act 57 of 1983 which specifically required the filing of authenticating affidavit in court in order to allow admission of data messages, the Act does not specifically provide for the filing of the Certificate, nor does the Act spell out the format thereof.
The use of the Certificate in terms of the Act is inferred from Section 15(4) which requires data messages to be certified for the purposes of admission in court. The format of and the manner in which the Certificate is introduced in court proceedings developed as a matter of court practice. In civil proceedings, the Certificate forms part of the court bundle and the opponent should be advised in writing of the other party’s intention to file the Certificate. A copy of the Certificate should be provided to the opponent. Practically and subject to exceptions, the Certificate should be filed after the pleadings have closed, but before the trial.
The following are akin to the form and contents of the Certificate:
(a)   The Certificate should be filed in court by the party’s representative who should state his position within the party’s employment.
(b)   Copies of the electronic or data messages should be put together and the party’s representative should initial each page of the copies.
(c)   The representative would have to state that the electronic or data messages are the actual copies of the printout of data stored on the party’s electronic media or computer system.
(d) The representative would have to state that the electronic or data messages were generated in the ordinary course of the party’s business. 
(e) The representative would further have to state the that:
(i) The electronic or data messages were generated and stored by him on the party’s electronic media or computer system.
(ii) The electronic or data messages were maintained by him on the party’s electronic media or computer system.
(iii) The electronic or data messages were printed by him from the party’s electronic media or computer system.
(f) The initialled copies should be included in the court bundle and specific reference to the initialled copies has to be made in the Certificate. In this regard, the following have to be stated in the Certificate:
(i) That the copies of electronic or data messages were initialled by the party’s representative.
(ii) That the initialled copies of the electronic or data messages are to be found in the court bundle.
(iii) That the party’s representative confirms that the electronic or data messages included in the court bundle are correct copies and/or print out of the electronic or data messages.
(g) The Certificate has to be dated and signed by the party’s representative.
(h) Documents relating to the electronic or data messages should also be included in the party’s discovery affidavit.
In certain instances, the electronic or data messages are generated, stored, maintained and printed on the party’s electronic media or computer system by junior employees under the supervision of a senior representative of the party.  In such instance, the senior representative of the party may file the Certificate and in addition to the above, state that:
(a) The electronic or data messages were generated and stored by the party in its electronic media or computer system under the supervision and control of the party’s senior representative.
(b) The electronic or data messages were maintained by the party in its electronic media or computer system under the supervision and control of the party’s senior representative.
(c) The electronic or data messages were printed by the party under the supervision and control of the party’s senior representative.
In short, the party’s representative filing the Certificate does not necessarily have to be the party’s representative who actually generated, stored, maintained and printed the electronic or data messages.  It will suffice if the party’s senior representative can show that the electronic or data messages was generated, stored, maintained and printed under his supervision and control.
There is not much in terms of case law in civil proceedings where the use of Section 15 Certificate has been considered.  In the unreported judgment delivered on 20 December 2007 in the case of MTN Service Provider (Pty) Limited v LA Consortium and Vending CC & Others (WLD) by Judge Claassen, two representatives of MTN filed Section 15 Certificates in order to prove the placing of orders for cellular phone air time, delivery and receipt of same through electronic or data messages.
In his judgment, the Judge accepted with approval the Certificates filed by MTN’s representatives. In considering the admissibility and evidentiary value of the electronic or data messages contained in the Certificates, the judge found that:
(a) To the extent that it may be held that the documents relied upon by MTN constitute data messages, the Certificates filed by MTN passed muster.
(b) The fact that the electronic or data messages were captured for the transaction in question and during the ordinary cause of MTN’s business was uncontroverted.
(c) To the extent that the documents were copies or print outs or extracts from the data messages, the Certificates made the documents on mere production admissible and as such, constitute rebuttable proof of the facts contained therein.
With respect to the Certificate filed by MTN’s senior representative, the Judge found that the law would be an ass if each staff member of MTN who dealt with the capturing, storage, maintenance and printing of the data messages had to be called to testify. The judge stated that it seems to be common practice for heads of department in government, business, mining, universities to testify on behalf of staff members under their supervision and control. In admitting the data messages through the filed Certificates, the Judge ruled in favour of MTN.
Through Section 15 of the Act, it is clear that the legislature has allowed the court to admit electronic generated, stored, maintained and printed data messages in court proceedings as rebuttable evidence. Once the electronic or data messages have been admitted through Section 15 Certificate, the evidentiary value thereof has to be considered as per the criteria set in Section 15 of the Act.
Section 15 Certificate has become a necessary tool to allow electronic or data messages to be admitted and evidentiary value thereof considered just like any other documentary evidence in court proceedings. Indeed, Section 15 Certificates will become more prevalent in our courts since many businesses conduct business transactions through electronic media. 
Dennis Sibuyi is a senior associate in the Dispute Resolution Department at Bowman