Electronic communication is regulated by the Electronic Communications and Transactions Act (No 25 of 2002), herein after referred to as ECTA. In the definitions, data is defined as electronic presentation of information in any form.
Data subject means any natural person in respect of whom personal information has been requested, collected, collated, processed or stored after the commencement of this Act.
Personal information means information about an identifiable individual, including, but not limited to:
information relating to race, gender, sex, pregnancy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth;
information relating to the education or the medical, criminal or employment history of the individual;
(f) correspondence sent by the individual which is implicitly or explicitly of a private and confidential nature, or further correspondence that would reveal the contents of the original correspondence.
Section 15 of ECTA deals with the admissibility and evidential weight of data messages.
15 (4): A data message made by a person in the ordinary course of business (my emphasis), 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 on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.
It was held in Trent (Pty) Ltd & another vs SARS & another that a party seeking to rely on section 15(4) of ECTA must show that the document sought to be admitted is a printout of information existing in electronic form.
The question, therefore, arises whether or not the communication, as referred to in the onset, was made in the ordinary course of business.
Indirect communication means the transfer of information, including a message or any part of a message, whether in the form of speech, music or other sound, data, text, visual image …. in any other form, or in any combination of forms, that is transmitted in whole or in part by means of a postal service or a telecommunication system.
The mere producing of such communication is therefore not adequate to the effect that it could align with the best evidence rule nor to be admissible. The burden to rely on such evidence is on the party who seeks to introduce it in the proceedings. Such party must therefore support the evidence in accordance with section 15(4).