Employers, watch out: some digital or printed evidence might not be admissible in court
11 October 2022
by Amy Pawson
The modern world of technology has undoubtedly changed the manner in which we collect evidence as well as the types of evidence relied on in arbitration proceedings and trials. One such example is the increased use of digital and printed evidence.
The reliance on computerised data and its credibility was explored in the recent case of Eskom Holdings SOC Limited v Ravichandran Reddy. In this matter, Mr Reddy, a zone manager at Eskom, was a beneficiary of Eskom’s managerial car scheme. This entitled him to utilise his own vehicle for the purposes of work trips and to claim a contingency allowance. It was Eskom’s case that Mr Reddy was prevented from travelling in Eskom-owned “pool vehicles”.
In 2016, Mr Reddy attended a disciplinary hearing. The essence of the charge against him was that, on six occasions, he had travelled as a passenger to various destinations in pool vehicles but had nevertheless also claimed contingency allowances based on the representation that he had used his own vehicle.
The chairperson found Mr Reddy guilty of misconduct and he was dismissed. He then challenged the substantive fairness of his dismissal. In the arbitration proceedings that followed, Mr Reddy admitted that he had travelled in a pool vehicle on various occasions, but denied that he had done so on the specific days in respect of which Eskom alleged that he had claimed the contingency allowances. The Commission for Conciliation, Mediation and Arbitration (CCMA) Commissioner found that the probabilities favoured Mr Reddy’s version. She did so by relying on a “telematics report” provided by Eskom, which appeared to indicate that Mr Reddy had not travelled in pool vehicles on the relevant dates. The dismissal was found to be unfair.
Eskom applied to the Labour Court to have the award reviewed and set aside. It argued that the Commissioner had erred by not taking into account the evidence of a witness who testified that Mr Reddy had in fact travelled in pool vehicles on the relevant dates and, instead, had relied on the information contained in the telematics report. The telematics report had been generated by a computer from the movement of pool vehicles that had been entered into the relevant computer programme.
The Commissioner had not been entitled to rely on the report in the absence of a witness being called to formally hand in the report and to testify as to how the report had been generated and as to the reliability of the information stored in, and generated by, the computer system.
The court accepted that the telematics report contained data that was represented in a data message as defined in the Electronic Communications and Transactions Act, 2002 (“ECTA”).
ECTA governs the admissibility and evidential weight of data messages. It states that:
“In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence—
(a) on the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.”
ECTA then describes what factors will be considered in assessing the evidential weight of a data message.
The court pointed out that this section simply provides that a data message should not be regarded as inadmissible evidence in certain circumstances. In terms of section 15(1) of ECTA, the data message as contained in the telematics report was admissible subject, however, to proof thereof. A party wishing to rely on a data message in legal proceedings cannot simply hand in the data message as evidence. More is needed. In the absence of agreement between the parties to the effect that the data message is admissible as evidence, evidence has to be led to prove the reliability and veracity of the message. In this case, no witness was called to testify to this.
The court did point out that ECTA provides that a data message made by a person in the ordinary course of business, or a copy or printout of, or an extract from, such data message that has been certified to be correct by an officer in the service of such person will, on its mere production in various legal proceedings, be admissible in evidence against any person and be rebuttable proof of the facts contained in such record, copy, printout or extract. However, in this case, the data message in the form of the telematics report had not been generated in the normal course of business and therefore did not apply.
The Labour Court ultimately ruled that, coupled with other conduct, acceptance by the Commissioner of an unproven telematics report in preference to the oral evidence placed before her constituted a reviewable irregularity and the arbitration award was reviewed and set aside.
This decision shows that should a party wish to rely on a data message in legal proceedings in cases where:
- it is not created in the normal course of business; or
- there is no agreement between the parties to the truth of the contents thereof, that evidence cannot prove itself;
it is important to call a witness who can testify as to the meaning of the data contained in the data message and that the data contained in the data message had been reliably generated, stored and communicated. Should such evidence not be proven and presented in the correct manner, a party runs the risk of having that evidence being given little to no weight.
Reviewed by Peter Le Roux, Employment Executive at ENSafrica
Candidate Legal Practitioner | Employment