Admissibility and Credibility of Electronic documents under
Zimbabwean Law
Compiled by Nyasha Chishakwe
Last week we discussed the concept of electronic documents
and how they should be accepted as evidential material in
a court of law. This week we shall be examining the extent
to which our local evidence laws comply with the international
trend of admissibility of such documentary evidence.
Section 13 of the Civil Evidence Act [Chapter 8:01] states
in part thus:
- Subject to this section, a document produced by a computer
shall be admissible as evidence of any fact stated therein
if direct oral evidence of the fact would be admissible.
- A document mentioned in subsection (1) shall be admissible
if the party producing it proves that
- the document was produced by the computer during a period
when the computer was used regularly to store or process
information for purposes of any activity regularly carried
on over that period; and
- over that period information of the kind contained in
the document, or of the kind from which the information
in the document is derived, was regularly supplied to the
computer in the ordinary course of that activity; and
- the information contained in the relevant part of the
document reproduces or is derived from information supplied
to the computer in the ordinary course of that activity;
and
- throughout the material part of that period the computer
was operating properly or, if it was not, its failure to
do so would not affect the production of the document or
the accuracy of its contents…
From the above provision, it can be noted that the Civil
Evidence Act provides a minimum threshold for purposes of
admissibility. In particular it requires that in order for
an electronic document to be admissible the adducer must prove
that it is reliable. The test for reliability is that enumerated
under subsection 2 (a) – (d) viz, that the document should
be a product of the regular operation of the computer, that
the information of the type contained in the document is what
is regularly transmitted to the computer, that the data in
the document originated from the information was transmitted
to the computer in the ordinary course, and that at all material
times the computer was functioning well, and if not such malfunction
did not impinge on the accuracy of the document.
Once the document passes the reliability test and is admitted
the courts, taking into account various factors, will then
determine the evidential weight of the same. As discussed
last week, the issue of weight is left to the discretion of
the courts after admissibility has been determined.
It is submitted that this approach is in compliance with
other jurisdictions of a common law background. It is the
writer’s further contention that this formulation is
practical and expedient. It, amongst other things, acknowledges
the complexities presented by electronic documents as evidential
material and provides safeguards that ensure the admissibility
of reliable evidential material only. Given the risks of alteration
and degradation that accompany electronic documents such an
approach is indeed relevant and necessary.
Whilst our Civil Evidence Act is in tandem with the electronic
age, as discussed above, the same cannot be said of our Criminal
Evidence law. The Criminal Procedure and Evidence Act [Chapter
9:07] does not specifically make provision for the admissibility
of electronic documents. The relevant clause, albeit inadequate,
is Section 281 that deals with documentary evidence. It states
in part:
- In this section –
‘document’ includes any thing on or in which information
is recorded;…
- If, in any criminal proceedings against any person, direct
oral evidence of a fact would be admissible, any statement
of such fact contained in any document, whether such document
purports to be an original or a copy, which –
- was made or kept by; or
- is proved to have been in the course of transmission to
or at any time in the custody or under the control of that
person, or any employee or agent of that person acting within
the scope of his employment or authority, shall be admissible
as evidence of that fact against that person…
The above provision does not make reference to the special
circumstances of electronic documentary evidence. It does
not define or set out conditions of reliability that establish
a minimal threshold of admissibility. In essence it is inadequate
in as far as the admissibility of computer generated documentary
evidence is concerned. It is therefore imperative that this
provision be reformulated to take into account the above concerns
as was done with the Civil Evidence Act.
Next week we are going to be talking about VSAT technology.
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