Discovery of electronic information in legal proceedings in South Africa with specific reference to Rule 23 of the Magistrates’ Court Rules and Rule 35 of the Uniform Rules of Court

Abstract

The exponential growth in electronically generated and -stored information in legal proceedings raises the question of whether electronic information falls within the ambit of the traditional definition of the term “document”. The current definition of the term “document” in the CPA and CPEA restricts the admission of electronic information as evidence in legal proceedings. The current court rules should be amended, and a broader definition of the term “document” should be included in the court rules. The ECTA was promulgated to address the shortcomings of our current legislative framework to ensure that electronic information that is admissible and relevant evidence is not excluded as evidence in legal proceedings.

Retention and preservation of electronic information as evidence is part of modern litigation globally. The ECTA provides for the admissibility of electronic information as evidence but is silent on the procedural rules and requirements to avoid lackluster preservation and retention of electronic information that may be discovered and used as evidence in legal proceedings. This loophole in our legislative framework must be addressed to avoid non-compliance with the court rules. In South Africa, it seems that relevant evidence, in the form of electronic information and its associated metadata, can easily be destroyed before proceedings are instituted if a requesting party fails to obtain an Anton Pillar order against a responding party. This calls for legislative reform in South Africa in this digital age.