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[2014] ZAWCHC 152
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Trustees for the time Being of the Delsheray Trust and Others v ABSA Bank Limited (A504/13) [2014] ZAWCHC 152; [2014] 4 All SA 748 (WCC) (9 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: A504/13
DATE:
09 OCTOBER 2014
REPORTABLE
JUDGMENT
In the matter
between:
THE TRUSTEES FOR
THE TIME BEING
......................................
First
appellant
OF THE DELSHERAY
TRUST
ELSA JOHANN
BOTHA
............................................................
Second
appellant
DESMOND
BOTHA
.....................................................................
Third
appellant
And
ABSA BANK
LIMITED
....................................................................
Respondent
JUDGMENT
DELIVERED ON 9 OCTOBER 2014
BLIGNAULT and
HENNEY JJ
[1] This is an
appeal from an order of a single judge of this division in terms of
which summary judgment was granted in favour
of respondent against
appellants. The issue on appeal concerns the admissibility and
adequacy of respondent’s verifying
affidavit which is based
exclusively on its computerised records.
Respondent’s
particulars of claim
[2] Respondent
instituted the action against first appellant, the Trustees for the
time being of the Delsheray Trust, as principal
debtor and second and
third appellants as sureties in respect of first appellant’s
debt. Respondent claimed payment from
appellants, jointly and
severally, of the amount of R1 588 208,85 plus interest thereon
accrued at a rate of 8,5% calculated daily
and capitalised monthly
from 19 September 2012 to the final date of payment.
[3] Respondent’s
cause of action is a breach of an agreement of loan between it and
first appellant in terms of which it lent
and advanced three separate
amounts totalling R1 700 000,00 to first appellant. The first
advance was in the amount of R900 000,00,
the second in the amount of
R200 000,00 and the third in the amount of R600 000,00.
[4] As security for
the repayment of the loans respondent registered three covering bonds
over first appellant’s immovable
property described as Erf 4805
Eversdale.
[5] According to
respondent’s particulars of claim the original contract
documents were destroyed in a fire. In an affidavit
deposed to on
behalf of respondent and attached to the particulars of claim it was
alleged that the details of first appellant’s
account reflected
in respondent’s particulars of claim were extracted from its
computerised records.
[6] Respondent
alleged that second and third appellants bound themselves as sureties
and co-principal debtors with first appellant
for the due repayment
of the monies lent and advanced by respondent to first appellant.
[7] In addition to
the claim for payment of the amount of R1 588 208,85 respondent
sought an order declaring the mortgaged property
specially executable
in terms of the provisions of the mortgage bonds.
[8] In response to
the summons, appellants filed a notice of intention to defend the
action, whereupon respondent applied for summary
judgment.
The affidavits
[9] Respondent’s
affidavit in support of its application for summary judgment was
deposed to by Mr Yuven Pillay. It reads
as follows:
‘1) I am a
Specialist employed at the Retail Bank Collection Division of the
Plaintiff / Applicant. I am duly authorised
to depose of this
Affidavit. All the data and records, relating to the
Applicant’s/Plaintiff’s action against the
Defendant
(Appellants) are under my control and I deal with this account on a
day to day basis. The facts contained herein are
within my personal
knowledge and are both true and correct.
2) Unless the
contrary appears, I have knowledge of the facts hereinafter stated,
either personally or as a result of my access
to all relevant
computer data and documents pertaining to the Trust’s mortgage
loans, account number 4056939083.
3) I hereby verify
the facts and cause of action stated in the Summons and the
Particulars of Claim to the Summons as true and correct
and verify in
particular, that the Respondents/Defendants jointly and severally the
one to pay the other to be absolved are indebted
to the Plaintiff in
the sum of R1 588 208,61 on the grounds stated in the Summons.
4) In my opinion the
Respondents/Defendants, jointly and severally, the one paying the
other to be absolved, do not have a bona
fide defence to the
Applicant’s/Plaintiff’s claim and their appearance to
defend has been entered solely for purpose
of delay.’
[10] First appellant
deposed to an answering affidavit on behalf of all three appellants.
His principal defence, raised in limine,
was that the verifying
affidavit made by Mr Pillay did not comply with the provisions of
Rule 32(2) of the Uniform Rules of Court
(‘Rule 32(2)’).
The substance of this defence is that Mr Pillay purported to rely on
the computer data and records
of respondent and not on his own direct
personal knowledge. First appellant did not in his answering
affidavit deal with the merits
of respondent’s claim against
appellants at all.
[11] The court a quo
granted summary judgment as prayed against the first, second and
third appellants.
[12] With the leave
of the court a quo, appellants appealed against the summary judgment
granted against them. Respondent has,
however, abandoned its
judgment against the second and third appellants and this appeal
concerns only the summary judgment granted
against the first
appellant.
The central issue
[13] In terms of
Rule 32(2) a plaintiff seeking an order of summary judgment is
required to file an affidavit in support of the
application made ‘by
himself or by any person who can swear positively to the facts
verifying the cause of action and the
amount claimed and stating that
in his opinion there is no bona fide defence to the action ….’
I shall refer in
this judgment to such affidavit as a verifying
affidavit.
[14] The verifying
affidavit of Mr Pillay is not a model of clarity. It is clear that
he relied at least to a significant extent
on the computerised
records of respondent. He did not state, however, that he relied on
specific facts dehors respondent’s
computerised records. He
did not state, for example, that he had any direct personal knowledge
of the conclusion of the agreement
of loan between first appellant
and respondent or the terms thereof or any of the transactions
reflected as debits and credits
on first appellant’s account.
We shall accordingly approach the issue in this case on the
assumption, in favour of first
appellant, that Mr Pillay relied
exclusively on respondent’s computerised records, ie he
purported to swear positively to
the facts revealed to him by
respondent’s computerised records.
[15] Counsel for
first appellant argued that Mr Pillay did not state that he had
consulted with any witnesses in order to gain personal
knowledge of
the facts of the matter. By relying exclusively on respondent’s
computerised records he did not purport to
have any direct first-hand
knowledge of respondent’s cause of action or the quantum of its
claim. The verifying affidavit,
according to the argument, did
therefore not comply with the provisions of Rule 32(2). Counsel also
argued that the fact that
the original contract documents were
destroyed, strengthened his submission as Mr Pillay would have been
unable to acquire personal
knowledge thereof.
[16] The central
issue in this case is therefore whether Mr Pillay’s verifying
affidavit which is founded exclusively on
respondent’s
computerised records, complies with the provisions of Rule 32(2).
For the reasons that follow we are of the
view that it does.
[17] The subject of
computer evidence in South Africa, it should be noted, is regulated
by the Electronic Communications and Transactions
Act 25 of 2002
(‘ECTA’) but respondent did not present or argue its case
on the basis of the provisions of ECTA. In
terms of the express
wording of s 3 of ECTA, however, it does not exclude the application
of the common law. We shall accordingly
deal with the admissibility
and adequacy of Mr Pillay’s verifying affidavit in terms of
common law principles.
The information
revolution
[18] It is well
known that modern technological developments have brought about a
revolution in the way that information, including
legal information,
is captured and disseminated. These developments brought about
substantial changes in the law of computer generated
evidence,
internationally and in South Africa. Although well known, a few
quotes may not be out of place.
[19] As long ago as
1989 Steyn J said this in R v Minors R v Harper
[1989] 2 All ER 208
(Court of Appeal, Criminal Division) at 210:
‘The Law of
Evidence must be adapted to the realities of contemporary business
practise. Main frame computers, mini computers
play a pervasive
role. Often the only record of a transaction which nobody can be
expected to remember, will be in the memory
of a computer. In
versatility, power and frequency of use of computers will increase.
If computer output cannot relatively readily
be used as evidence in
criminal cases, much crime and notably offences of dishonesty will in
practice be immune from prosecution.’
[20] Mason
Electronic Evidence 3rd edition (2012) para [1.34] says the
following:
‘Now we live
in the age of the machine, the range of digital evidence that is
capable of being captured, investigated and
disclosed in legal
proceedings is very wide. From the files on a digital camera to the
complex behaviour of a computer attached
to the Internet, assessing
digital evidence has become the staple of a lawyer's life.’
[21] The remarks of
George L Paul in a review of Mason’s Electronic Evidence supra,
published in 53 Jurimetrics – (Summer
2013) 467, are equally
illustrative:
‘….
there is nothing more important to a legal system than the analysis
of “information.” Information
is the lifeblood of
commerce, societal dialogue, and interpersonal communication; and
therefore, it is also the subject of litigation
the world over. Our
economy, indeed, is now overwhelmingly an “information
economy,” and will continue to become increasingly
so in the
future.’
South African case
law
[22] The question of
the adequacy of the verifying affidavit in summary judgment
proceedings has been considered in various recent
judgments. All of
them refer back to the locus classicus, the judgment of Corbett JA in
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A). The
following two oft quoted passages in that judgment have a bearing on
the present enquiry:
At 423 BC:
‘Generally
speaking, before a person can swear positively to facts in legal
proceedings they must be within his personal knowledge.
For this
reason the practice has been adopted, both in regard to the present
Rule 32 and in regard to some of its provincial predecessors
(and the
similar rule in the magistrates’ courts), of requiring hat a
deponent to an affidavit in support of summary judgment,
other than
personal knowledge or make some averment to that effect), unless such
direct knowledge appears from other facts stated’.
And at 423 H –
424 F:
‘Ex facie the
summons plaintiff's cause of action is founded upon moneys disbursed
on defendant's behalf in terms of an oral
agreement of overdraft. The
relevant facts would, therefore, be the conclusion of the contract,
and the terms thereof, the deposits
in, and withdrawals from,
defendant's current account at the Stanger branch of the plaintiff
bank and the interest debits resulting
in the debit balance as at the
date alleged in the summons, viz. 24 October 1974, and the making of
a demand for payment. In regard
to certain of these facts, it would
be difficult, if not impossible, for any one person to have
first-hand knowledge of every fact
that goes to make up the
plaintiff's cause of action. In this connection I am in full
agreement with the following remarks of MILLER,
J., in Barclays
National Bank Ltd. v. Love, supra at pp. 516 - 7, made with reference
to an affidavit made by the manager of a
branch of the plaintiff bank
(oddly enough also the Stanger branch):
“We are
concerned here with an affidavit made by the manager of the very
branch of the bank at which overdraft facilities
were enjoyed by the
defendant. The nature of the deponent's office in itself suggests
very strongly that he would in the ordinary
course of his duties
acquire personal knowledge of the defendant's financial standing with
the bank. This is not to suggest that
he would have personal
knowledge of every withdrawal of money made by the defendant or that
he personally would have made every
entry in the bank's ledgers or
statements of account; indeed, if that were the degree of personal
knowledge required it is difficult
to conceive of circumstances in
which a bank could ever obtain summary judgment. It goes without
saying that a manager of a bank
who claims to have personal knowledge
of the extent to which a client has overdrawn his account must needs
rely upon the bank records
which show the amounts paid into his
account and the amounts withdrawn by the client.”
In this case the
deponent, Mr Mason, does not specifically state that he has personal
knowledge of the overdraft arrangements made
by the defendant with
the manager of the Stanger branch of the bank and the state of
defendant's current account at the relative
time. On the other hand,
he does say, in para. 1 of his affidavit, that he is the assistant to
the branch manager of the Stanger
branch. It is not clear what the
duties or status of the assistant are but, if one reads this averment
together with the statement
in para. 2 that the deponent swears
positively that the defendant is liable to plaintiff on the claim and
for the amount as detailed
in the summons and upon the cause of
action as set out therein, there is perhaps enough to justify the
conclusion that in the course
of his duties Mr Mason would have
acquired a personal knowledge of the defendant's financial standing
with the bank and the state
of his current account.’
[23] There is a line
of judgments of the high courts which are to the effect that the
deponent of a verifying affidavit in summary
judgment proceedings
cannot rely exclusively on a perusal of records and documents of the
plaintiff for purposes of that affidavit.
The judgment of Wallis J
in Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC
and Another
2010 (5) SA 112
(KZP) is typical of this approach. See
para [13] of the report:
‘[13] It may
be … … that first-hand knowledge of every fact which
goes to make up the applicant's cause of
action is not required, and
that where the applicant is a corporate entity, the deponent may well
legitimately rely on records
in the company's possession for their
personal knowledge of at least certain of the relevant facts and the
ability to swear positively
to such facts. However, I do not
understand any of the cases as going so far as to say that the
deponent to an affidavit in support
of an application for summary
judgment can have no personal knowledge whatsoever of the facts
giving rise to the claim, and rely
exclusively on the perusal of
records and documents in order to verify the cause of action and the
facts giving rise to it.’
[24] The same
approach was approved and applied by Southwood J in Standard Bank of
South Africa v Han-Rit Boerdery CC and Others
[2011] ZAGPPHC 120 (22
July 2011) para [6]:
‘In both the
Shackleton case (paras 7 and 13) and the Beyer case (paras 9, 10, 19,
20 and 21) the court found that a deponent
who acquires his knowledge
from documents to which he has access cannot swear positively to the
facts. In both cases the courts
reviewed the relevant case law and
the principles laid down over the years and I respectfully agree with
the reasoning of the courts
and the conclusion reached.’
[25] The judgment of
Binns-Ward J in Absa Bank Ltd v Le Roux and Others
2014 (1) SA 475
(WCC) is to the same effect. He followed the Shackleton judgment and
arrived at a similar result. He pointed out, inter alia,
that the
effect of this approach might well be that it will become impossible
for institutions such as banks to obtain summary
judgment in the
modern age in which ‘much of their business is conducted
facelessly on computer networks and recorded electronically.’
[26] We do not, with
respect, agree with the approach adopted in these high court
judgments. It would appear, however, that the
admissibility and
probative value of the respective plaintiffs’ computerised
records were not specifically considered in
any of these cases.
[27] There are two
recent judgments of the Supreme Court of Appeal in which the
respective verifying affidavits were found to be
adequate, namely
Rees and Another v Investec Bank Ltd
2014 (4) SA 220
(SCA) and
Stamford Sales & Distribution (Pty) Limited v Metraclark (Pty)
Limited
[2014] ZASCA 79
(29 May 2014).
[28] In neither of
these two cases, however, did the deponent to the verifying affidavit
rely exclusively on the internal records
of the plaintiff. In the
Rees judgment the deponent also found support for her knowledge in
correspondence between the plaintiff
and the defendant’s
attorney in regard to the defendant’s delinquent accounts. She
had addressed letters of demand
to the attorneys and received
correspondence in response which canvassed the defendant’s
defences. See para [14] of the
report.
[29] In the Stamford
judgment the deponent to the verifying affidavit stated, inter alia,
that ‘the Applicant’s file
… … which
contains, inter alia, a cession of book debts in favour of the
Applicant, proof of the Applicant’s
claim against Quali Cool CC
and all correspondence entered into by the Applicant and/or its
attorney with the Respondent, is currently
in my possession and under
my control and I am fully conversant with the content thereof.’
See para [8] of the report.
[30] It is our view,
therefore, that neither the Rees nor the Stamford judgment can be
regarded as authority for or against our
conclusion herein that the
deponent to respondent’s verifying affidavit can rely
exclusively on knowledge of its computerised
records as basis for
that affidavit.
First appellant’s
failure to deal with the merits of respondent’s claim
[31] We should make
it clear at this juncture that we do not attach any weight to the
fact that first appellant did not respond
at all to the merits of
respondent’s claim. Counsel for respondent submitted that his
failure to do so amounted to an implied
admission of the claim and
that this is a relevant factor to be taken into account in judging
the adequacy of the verifying affidavit.
He relied in this regard on
the judgment of Davis J in Firstrand Bank Ltd v Huganel Trust
2012
(3) SA 167
(WCC) in which is to the effect that the contents of the
defendant’s answering affidavit can be taken into account in
considering
the admissibility and adequacy of the verifying
affidavit. Davis J said, inter alia, the following, at 177 D –
E/F:
‘On an
evaluation of both the claim and the defence, it could be concluded
with justification that the deponent had sufficient
knowledge to
depose to the affidavit, which formed the basis of the factual matrix
to sustain an application for summary judgment.
By contrast, there
will be cases where, given the defence raised, some further knowledge
is required beyond an examination of the
documentation. In other
words, knowledge of a personal nature may be required if it is
relevant to the contractual relationship
as alleged by the defendant
and, if the defendant's version is proved, could constitute an
adequate defence to the claim.’
[32] We differ in
the first place with respondent’s contention that the absence
of any response to respondent’s claim
amounted to an admission
thereof by first appellant. It is in our view at least equally
probable that first appellant was so confident
of his prospects of
success in challenging the validity of the verifying affidavit that
he decided that it was not necessary to
respond to the merits of
respondent’s claim.
[33] We do not
agree, in any event, with Davis J’s approach with respect to
the contents of an answering affidavit. We find
the contrary view
expressed by Wallis J in Shackleton para [25] logical and persuasive.
In dealing with a statement, similar to
that of Davis J, by Blieden
J in Standard Bank of South Africa Ltd v Roestof
2004 (2) SA 492
(W),
Wallis J said the following:
‘[25] Insofar
as the learned judge suggested that a defective application can be
cured because the defendant or defendants
have dealt in detail with
their defence to the claim set out in the summons, that is not in my
view correct. That amounts to saying
that defects will be overlooked
if the defendant deals with the merits of the defence. It requires a
defendant who wishes to contend
that the application is defective to
confine themselves to raising that point, with the concomitant risk
that if the technical
point is rejected, they have not dealt with the
merits. It will be a bold defendant that limits an opposing affidavit
in summary
judgment proceedings to technical matters when they
believe that they have a good defence on the merits. The fact that
they set
out that defence does not cure the defects in the
application, and to permit an absence of prejudice to the defendant
to provide
grounds for overlooking defects in the application itself
seems to me unsound in principle. The proper starting point is th
e application. If it
is defective, then cadit quaestio. Its defects do not disappear
because the respondent deals with the merits
of the claim set out in
the summons.’
The general nature
of computer evidence
[34] By way of
background it is useful to have regard to the general nature of the
computer evidence that would have been available
to the deponent Mr
Pillay. He stated that he had personal knowledge of the relevant
data regarding first appellant’s account.
That information
would have been available to him in in the form of respondent’s
computer records, either on a screen or
a printout thereof. A useful
summary of three categories of computer evidence appears in a note by
Stephen Mason in Criminal Law
& Justice Weekly 28 September 2013
headed ‘Electronic Evidence, The Presumption of Reliability and
Hearsay – a
Proposal’:
‘The
categories of evidence in digital format can be reduced to the
following:
The records of
activities that contain content written by one or more people (e-mail
messages; word processing files; instant messages).
It may be
necessary to demonstrate that the content of the document is a
reliable record of the human statement that can be trusted.
Records generated by
a computer that have not had any input from a human (data logs;
connections made by telephones; ATM transactions).
It may be
necessary to demonstrate that the computer program that generated the
record was functioning consistently at the material
time.
Records comprising a
mix of human input and calculations generated and stored by software
written by a human being (financial spreadsheet
that contains human
statements (input to the spreadsheet program); computer processing
(mathematical calculations performed by
the spreadsheet program)).
It might be necessary to determine whether the person inputting the
data or the writer of the software
created the content of the record,
and how much of the content was created by the writer of the software
and how much by the person
inputting the data.’
[35] For purposes of
this judgment we propose to simplify the computer evidence that would
have featured in the present case into
two classes mentioned in the
third category by Stephen Mason (see para [32] above). Each of two
classes of evidence would have
come into being during a separate
stage of the functioning of respondent’s computer system. The
first stage would have consisted
of the human input, the second stage
of the generation and storing of the information by the computer.
The purpose of the entire
process would have been to enable visual
observation of the financial standing of first appellant with
respondent in a complete,
comprehensible and accurate form.
[36] Difficulties in
regard to proof of the veracity and accuracy of the computer
generated information would have arisen during
each of the two
stages. The human input during the first stage would have comprised
the performance of certain manual operations
by one or more of
respondent’s individual employees and but not by Mr Pillay.
The evidential problems that would have arisen
during the second
stage of the operation concern the reliability of the computer
hardware and software that were used in the process.
The second stage –
the records generated by the computer
[37] It is
convenient to deal first with the evidential problems arising during
the second stage, ie the generation of the records
by the computer.
It seems to us that these problems can be overcome by the application
of a presumption of reliability. This
presumption is not generally
applied in the South African case law under that name but the
underlying principles, we suggest, are
indeed established.
[38] The presumption
of reliability has a common law origin. Stephen Mason Electronic
Evidence 3rd edition chapter 5 et seq discusses
it under the name of
the ‘Mechanical instruments: the presumption of being in
order’. The Law Commision of the United
Kingdom, in a report
entitled Evidence in Criminal Proceedings: Hearsay and Related Topics
13.3, formulated the presumption in
similar terms:
‘In the
absence of evidence to the contrary, the courts will presume that
mechanical instruments were in order at the material
time.’
[39] In explaining
the nature of this presumption Stephen Mason op cit quotes, in para
[5.01], the following passage from an Australian
case, Barker v
Fauser
(1962) SASR 176
at 178:
‘It is rather
a matter of the application of the ordinary principles of
circumstantial evidence. In my opinion such instruments
can merely
provide prima-facie evidence in the sense indicated by May v
O’Sullivan [(1955) 92 CL 654]. They do not transfer
any onus
of proof to one who disputes them, though they may, and often do,
create a case to answer. Circumstantial evidence is
something which
is largely based upon our ordinary experience of life. … It is
merely an application of this principle to
our ordinary experience in
life which tells us of the general probability of the substantial
correctness of watches, weigh bridges
and other such instruments. If
they are instruments or machines of a type which we know to be in
common use our experience tells
us that this is suggestive of their
substantial correctness. Experience also tells us that they are
rarely completely accurate,
but usually so substantially accurate
that people to on using them, and that subject to a certain amount of
allowance for some
measure of incorrectness, they act upon them. In
fact, this means that for a small overweight one would necessarily …’
[40] The presumption
of reliability is also applied, under that name, in the United States
of America. In an article, headed ‘Old
“documents”,
“videotapes” and new “data messages” –
a functional approach to the law
of evidence’, written by DS de
Villiers in 2010 Tydskrif vir die Suid-Afrikaanse Reg (Journal of
South African Law) 558 and
720 he said the following, at 728, with
reference to and quoting from Storm ‘Admitting computer
generated records: a presumption
of reliability’ 1984-1985 John
Marshall L Review at 218:
‘The integrity
of electronic evidence depends upon the scientific reliability of the
new generation computers. The different
controls, checks and tests
in modern computers and software provide greater accuracy and
reliability. Electronic evidence is not
inadmissible simply because
there is a possibility that it might be incorrect. Admissibility
depends upon probabilities based
on circumstantial evidence, which
demonstrates that the evidence is to a certain extent reliable, not
that it cannot be refuted.
Although no system can ever be totally
error-free, the use of security measures and certain controls can
minimise these errors.
Storm promotes a presumption of reliability
under certain circumstances:
“It should be
recognized that computer generated records carry a strong presumption
of reliability which only an equally strong
showing of a lack of
trustworthiness should overcome. The application of the rules of
evidence to computer records should incorporate
such a presumption.”’
[41] In South Africa
the presumption of reliability has, as far as we have been able to
establish, not been applied under that name.
The principles
underlying it are, however, firmly established. In S v Mthimkulu
1975 (4) SA 759
(A) Corbett JA held that expert evidence as to
accuracy of an instrument of measurement may in certain circumstances
be obviated
by the doctrine of judicial notice. See the passages at
763G-765B:
‘Whenever the
facta probanda include concepts such as weight, speed, time, length
(or distance), or a combination of two or
more of these concepts,
proof thereof must normally be presented in terms of the measures in
current use at the time. This is so
because it is only in terms of
such measures that the concept can be communicated with any degree of
precision and, in some instances,
also because the factum probandum
itself may be expressed in terms of such a measure. Apart from cases
where human estimate is
acceptable, proof of these matters of weight,
speed, etc., in terms of their recognised measures, necessarily
entails evidence
of a measurement thereof by means of a mechanical or
scientific instrument and, in some instances, in addition a process
of computation.
Theoretically, such
evidence of measurement should always comprehend proper testimony as
to the trustworthiness of the method or
process followed in order to
make the measurement and as to the accuracy of any instrument used in
that process.
In practice,
however, the law does not always demand a strict adherence to these
methods of proof. Expert evidence as to the trustworthiness
of the
process may be obviated by the doctrine of judicial notice. This is
referred to by Wigmore in the passage quoted above.
In further
elaboration of the point the learned author [Wigmore, Evidence, 3rd
ed, vol III] remarks (at p. 190):
"It may be
premised that though, on the principle above noted, any such process
or instrument must be preliminarily found to
be a trustworthy one,
yet, if the appropriate science or art has advanced to a certain
degree of general recognition, this trustworthiness
may be judicially
noticed as too notorious to need evidence."
Thus, to take again
the example of the X-ray, while the court may in some cases require
expert testimony to interpret an X-ray photograph
tendered in
evidence, it does not ordinarily need to have the process of X-ray
photography tendered in evidence, it does not ordinarily
need to have
the process of X-ray photography proved or explained to it. Judicial
notice is similarly taken of other scientific
instruments or
processes, such as tape-recording, telephony and ordinary
photography. When it comes to the reliability or correctness
of the
particular instrument used there is again a measure of flexibility.
In certain instances the courts do not demand proof
of such
reliability either because of the high degree of likelihood that the
machine is accurate or because it has been tested.
To some extent, in
this field, hearsay knowledge is, therefore, admitted and acted upon.
This point is also touched on by Wigmore,
op. cit., vol. II, p. 783,
under the general heading of "Hearsay knowledge exceptionally
admitted", as follows:
"The use of
scientific instruments, apparatus, formulas, and calculating-tables,
involves to some extent a dependence on the
statements of other
persons, even of anonymous observers. Yet it is not feasible for the
professional man to test every instrument
himself; furthermore he
finds that practically the standard methods are sufficiently to be
trusted."
Thus, to continue
with the X-ray example, the court not infrequently receives evidence
of X-ray photographs, in both civil and criminal
cases, and
invariably it does so without any enquiry being directed at the
reliability of the X-ray instrument used to take the
photographs.
The extent to which
the court will insist upon, or relax, the standards of proof which
theoretically apply when evidence involving
the use of scientific
instruments is presented to it will very much depend upon (a) the
nature of the process and instrument
involved in the particular case,
(b) the extent, if any, to which the evidence is challenged and (c)
the nature of the enquiry
and the facta probanda in the case. No hard
and fast rule can, or should, be laid down. Much will depend upon the
facts and circumstances
of each individual matter.’
[42] A similar
approach was followed in a matter which dealt with the functioning of
computers, Ex parte Rosch
[1998] 1 All SA 319
(W). See pages
328h-329d of the report:
‘Chronologically
the world is approaching the 21st century. Many gadgets have been
invented which are capable of automatically
recording material facts
without human agency. Courts in this country as well as England have
recognised that evidence produced
by such gadgets is prima facie
accurate. This accords with reality and common experience (see
Wigmore on Evidence 3ed Vol 3 at
189–190, as quoted in S v
Easter
1995 (2) SACR 350
(W) at 354C–355G). Some examples of
cases where such evidence was found to be admissible are now listed.
In S v Fuhri
1994
(2) SACR 829
(A) the court admitted photographs produced by a machine
and the information contained in such photographs, which included the
digital time report. In S v Dickenson
1982 (3) SA 84
(A) the evidence
produced by a gas chromotograph was held to be admissible. In R v
Farden and White
1982 (1) CLR 588
(CA)and R v Dodson
1984 (1) CLR 489
(CA) the English Court of Appeal held that evidence contained in
video films produced automatically was admissible in court.
As was made clear in
all the cases to which reference has been made, the present case and
all cases similar to it which deal with
the admissibility of evidence
obtained by automatic machines, relates only to the admissibility of
the evidence concerned, not
to the weight of such evidence. At best
for the party who relies on such evidence it is open to the other
party, the appellant
in the present case, to lead whatever evidence
he wishes in order to rebut such evidence. In our view a court would
be failing
in its duty if it ignored the realities of modern science
and technology in the production of evidence.
In 1997 courts are
entitled to accept that computers are ubiquitous in the society in
which we live. The process by which these
instruments record and
print information is no less commonplace than the operation of motor
vehicles and cameras. It is not necessary
that there should be
evidence as to how each computer works as a prerequisite to the
admissibility of the evidence produced by
such computer, if what has
been produced has been done so automatically.’
[43] In the final
paragraph of the passages from the Mthimkulu judgment quoted in para
[41] above, Corbett JA listed the factors
which may influence a court
to relax the strict standards of proof. Having regard to these
factors we are of the view that there
are four main considerations
which support the application of the presumption of reliability to
the evidential problems arising
during the second stage of the
process, ie the generation of respondent’s computer records.
(a) The first is
that respondent is a large commercial bank with branches all over the
country. It can safely be assumed that its
computer system is as
sophisticated, efficient and reliable as those of financial
institutions competing with it.
(b) It can also be
assumed that respondent would employ the personnel (or outside
contractors) with the experience, expertise and
responsibility which
the proper operation of such a computer system would require.
(c) A third factor
is the relatively minor effect of a verifying affidavit in contested
legal proceedings. It does not create any
onus or evidential burden
and it plays virtually no role in the enquiry as to whether a
defendant raises a valid defence in its
answering affidavit.
(d) A fourth factor
is that respondent’s computer records with respect to any
account are accessible to the client. Statements
are sent to the
client and information may, for example, be accessed by telephone,
through ATMs (automated teller machines) or
via internet banking.
This aspect would tend to minimise the effect of possible mistakes.
The first stage of
the process - human input
[44] The evidential
problem that arises during the first stage of the process is that the
human input is hearsay evidence. The
probative value of the
operations performed by the persons in question depends upon their
credibility as witnesses. There are,
however, two ways, or a
combination of both, by which the hearsay problem may be overcome.
The first is that it may be admissible
as an exception to the hearsay
rule in terms of s 3(1)(c), read with s 3(4), of the Law of Evidence
Amendment Act 45 of 1988 (‘the
statutory hearsay exception’).
These provisions read as follows:
‘3 Hearsay
evidence
(1) Subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings,
unless-
… …
(c) the court,
having regard to-
(i) the nature of
the proceedings;
(ii) the nature of
the evidence;
(iii) the purpose
for which the evidence is tendered;
(iv) the probative
value of the evidence;
(v) the reason why
the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice
to a party which the admission of such evidence might entail; and
(vii) any other
factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence should
be admitted in
the interests of justice.
… … …
(4) For the purposes
of this section –
“hearsay
evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility
of any person
other than the person giving such evidence.’
[45] There is
support for such an approach in the case law. Although the judgments
mentioned hereunder dealt with the concept of
a data message as
defined in ECTA the reasoning therein would apply with equal force to
the computer generated documents that we
are dealing with in this
case. In Ndlovu v Minister of Correctional Services and Another
[2006] 4 All SA 165
(W) at 174e-175c the court was presented with
computer printouts reflecting the monitoring of the plaintiff by the
prison authorities.
The judge (Gautschi AJ) held that the
information that was recorded by persons who did not give oral
evidence, was hearsay evidence.
He admitted it, however, in terms of
the statutory hearsay exception.
[46] In S v Ndiki
and Others
2008 (2) SACR 252
(CkHC) Van Zyl J dealt, inter alia, with
the admissibility of computer generated documents. In obiter dicta
at paras [31] to [33]
of the judgment, he expressed the view that the
documents constituted hearsay evidence which could be admissible in
terms of the
statutory hearsay exception.
[47] In LA
Consortium & Vending CC t/a LA Enterprises v MTN Service Provider
(Pty) Ltd
2011 (4) SA 577
(GSJ) Malan J, writing on behalf of a full
court, held that a data message may contain hearsay which would only
be admissible insofar
as it passes the criteria set out in the
statutory hearsay exception.
[48] Having regard
to the various factors set forth in the sub-paragraphs of the
statutory hearsay exception we are of the view
that the hearsay
evidence regarding the human input in the present case, should in the
interest of justice be admitted as evidence.
Apart from the
considerations mentioned in para [41] above, it would be practically
impossible to obtain affidavits from all the
persons that
participated in providing the human input. Many of them might not
even be identifiable when the verifying affidavit
is deposed to. The
admission of this hearsay evidence would only prejudice first
appellant if he has no defence to respondent’s
claim.
[49] An alternative
solution to the problem regarding the admissibility of evidence
arising from the human input is the application
of a presumption of
regularity. This presumption has been described as follows in
Zeffert v Paizes second edition The South African
Law of Evidence at
212.
‘The scope of
the presumption of regularity, usually expressed in the maxim omnia
praesumuntur rite esse acta, is very ill-defined…
… In
some cases it appears to be no more than an ordinary inference, based
upon the assumption that what regularly happens
is likely to have
happened again. In other cases it is treated as a presumption of
law, sometimes placing an onus upon the opposing
party and sometimes
creating only a duty to adduce contrary evidence. It has been
applied in a wide variety of cases which are
impossible to catalogue
exhaustively.’
[50] The presumption
of regularity was applied by Steyn J in the context of the operation
of computers in R v Minors; R v Harper
supra at 213:
‘Moreover, in
a great many cases the necessary evidence could be supplied by
circumstantial evidence of the usual habit or
routine regarding the
use of the computer. Sometimes this is referred to as the presumption
of regularity. We prefer to describe
it as a commonsense inference,
which may be drawn where appropriate.’
[51] There is
clearly a significant degree of overlap between this presumption and
the presumption of reliability discussed above.
This is
understandable as the reliable operation of a computer also depends
upon the quality of the human input. It seems to
us therefore that
the arguments in favour of the application of the presumption of
reliability in this case, mentioned in para
[32] above, applies
mutatis mutandis to the application of the presumption of regularity.
Returning to Maharaj
[52] We revert
finally to the judgment of Corbett JA in the Maharaj case. We
believe that our approach herein is not inconsistent
with the
principles applied in that judgment. Corbett JA accepted, for
pragmatic reasons, that the manager of the branch of
the respondent
bank who deposed to the verifying affidavit could not have been
expected to have personal knowledge of every entry
in the client’s
statement of account. He ‘must needs rely upon the bank
records which show the amounts paid into his
account and the amounts
withdrawn by the client’. The learned judge of appeal did not,
so it would appear, provide any express
indication of the legal basis
for this approach. It seems to us, however, that it was not
inconsistent with the application of
the presumption of regularity.
[53] The
technological environment was in any event very different from what
it is today. The Maharaj judgment was delivered in
1975, before the
advent of the information revolution referred to above. Had
computers, as we know them today, been used in the
ordinary course of
banking business, Corbett JA might well have applied the approach
which he himself articulated in the Mthikulu
judgment. The latter
judgment, incidentally, was delivered by him only two months before
that in the Maharaj case. It is also
relevant that the statutory
hearsay exception did not exist in 1975. For that reason the
recognition of the human input as hearsay
evidence would not have
solved the problem regarding its admissibility.
[54] It may also be
noted in this regard that the terms ‘personal’ and
‘direct’ which appear in the passage
at 423BC in the
Maharaj judgment, quoted in para [20] above, do not appear in Rule
32(2). In terms of that rule the deponent
is only required to ‘swear
positively’ to the facts in question. Mr Pillay would have
been authorised to have access
to respondent’s computer records
and he would have been qualified to understand and interpret them.
He would therefore have
been in a position to depose to a verifying
affidavit that complied with Rule 32(2).
Conclusion
[55] We are
accordingly of the view that the computer generated information of
first appellant’s financial standing with respondent
that was
available to Mr Pillay, was sufficient to allow him to depose to a
valid and adequate verifying affidavit. We find that
he in fact
deposed to such an affidavit.
[56] First
appellant’s appeal thus falls to be dismissed with costs. On
27 June 2014 respondent abandoned its judgment against
second and
third appellants. Respondent is, however, responsible for the costs
of the appeal incurred by second and third appellants
up to 27 June
2014.
[57] In the result,
we make the following orders:
(1) First
appellant’s appeal is dismissed with costs.
(2) The granting of
summary judgment against first appellant by the court a quo is
confirmed.
(3) Second and third
appellants are given leave to defend the action.
(4) Respondent shall
bear the costs of the appeal incurred by second and third appellants
up to 27 June 2014.
(5) The costs in
respect of the summary judgment application against second and third
appellants shall stand over for later determination.
BLIGNAULT J
Judge of the High
Court
HENNEY J
Judge of the High
Court
GOLIATH J: I agree.
GOLIATH, J
Judge of the High
Court