Authored By: SURPRISE NTOMBISODWA MATHEBE
UNIVERSITY OF SOUTH AFRICA
Introduction
In 2023, the South African police Service gave a statement that the National Forensic DNA database kept more than 200 000 profiles.[1]Alongside DNA, forensic investigations are now dependent on electronic health records and digital injury photographs that are saved on cloud servers before they can be presented in courts.[2]This movement to digital files has brought a change in how forensic evidence is handled in South Africa.
The system that is in charge remains divided because Medical evidence is governed by the National Health Act and the Criminal Law (Forensic Procedure) (DNA Act), while electronic evidence is governed by the ECTA and the Cybercrimes Act.[3] Section 15(1) of the Electronic Communications and Transactions Act states that a data message shall not be inadmissible merely because it is electronic; however Section 15(3) requires assessment of integrity.[4]
This double system of government brings uncertainty into existence. A graph or picture print out showing DNA results saved as file can be duplicated or faked by using Artificial Intelligence without being seen or being able to trace. South African courts have not developed a method for testing unauthorised alterations.
This article argues that the ECTA s 15 is not enough for medical evidence and that South Africa must come up with a strategy whereby that contains tests such as technical verification and confirmation by medical experts.[5]
Main Body
A.Legal Framework
The DNA act governs the process of collecting and continued possession of forensic DNA.Section 15G allows taking DNA samples from the cells inside the cheek from persons arrested for schedule 8 offences,[6]while s 15I requires secure storage on the National Forensic DNA database. [7]The Act is not saying anything regarding to formal processes to make sure that valuable digital information remains accessible and usable in the long term. DNA data forms part of special personal information under the Protection of Personal Information Act, s 26, requiring enough protection measures under s 19.[8]
Health records are regulated by the National Health Act. Section 14 gives assurance regarding confidentiality,[9]s 15 allows disclosure under court order and Regulation 458 of 2016 allows electronic storage on the condition that the system can reproduce the correct copy.[10]The admissibility of electronic evidence is regulated by Electronic Communication and Transactions Act s 14 and s 15. Section 14 deals with originality whereby integrity is assessed.[11]Whilst s 15(3) lists points involving evidential weight.[12]Section 212(4) of the Criminal Procedure Act permits affidavit evidence from forensic analysts as first sight or appearance proof.[13]The Cybercrimes Act sees unlawful manipulation of data as a crime under ss 2 and 3 and also provides search procedures under s 24.[14]
Case Law Analysis
In S v Ndhlovu,[15]the Supreme Court of Appeal held that electronic evidence could be admitted as real evidence if the system reliability was confirmed and verified. The court’s focus was on the quality of being suited to serve a purpose well rather than proof that is in relation to cryptography.[16]In S v Brown, the court admitted a CCTV footage after a technician provided details about the system.[17]In Minister of Police v Kunjana,[18] the Supreme Court of Appeal gave and stressed the special importance of dignity and privacy in taking samples under s 35(2) of the Constitution but did not look at the digital integrity.[19]
The conflict between POPIA (Protection of Personal Information Act) and medical evidence admissibility was a shown in De Jager v Netcare Limited and Others .[20] The court held that in order to decide whether health data constituting special personal information under s 26 of POPIA could be admitted as evidence regardless of processing restrictions. The judgment held that while s 26 forbids processing of special personal information, s 27(1)(b) allows processing where necessary for giving a legal right , subject to s 36 of the Constitution as to checking if the law limits people’s rights is still fair as per Constitution.
Critical Evaluation
To begin with, there are no clear laws for safekeeping of digital evidence. The South African Police Service National Instruction 1 of 2015 emphasises the sealing of samples and to avoid touching or altering until the evidence has been analysed, copied and filed in the systems.[21] In the absence of Secure Hash algorithm 256, which is a hash function that quietly secures most systems people work with and touch, it signs the certificate behind the padlock in bowser and fingerprints software downloaded, the court will not be able to prove the evidence was not changed, if the hash was not recorded at the start.[22]
In addition, s 15(3) of the Electronic Communications and Transactions Act is regularly applied.Schwikkard and Van der Merwe shows that most of the times the courts admits computer printouts and electronic records as evidence without thoroughly checking if they can be trusted before the court accepts it.[23] This is dangerous for DNA, because DNA is made up alleles, which refers to versions of genes, therefore if one allele is not correctly recorded, the whole meaning of evidence can change. The Electronic Communications and Transactions Act was drafted to govern commercial transaction not forensic science.[24]
Another point, AI digital manipulation (deep fakes) is not dealt with, s 26 of the Cybercrimes involves procedures that should be followed when dealing with digital evidence but it does not say anything regarding checking if the electronic evidence is reliable.[25]
Comparative Perspectives
The United States
The Courts in the United States has made the process of proving that the evidence is real essential before admitting it, as per Federal Rule of Evidence 901, which states that before any item of evidence can be admitted, the person who advocates a theory must show that it is whatever they claim.[26]
Canada
Canada has adopted similar laws to United States, under the Canada Evidence Act which governs the reliability of electronic records as to proving that the computer system functioned as intended.[27]
Recommendations For South Africa
In order for South Africa to have a strong reliability of electronic and forensic evidence, amendment and enactment of laws should be made and introduction of technical authentication to verify if there is no tempering and medical authentication by experts who will confirm clinical evidence is trustworthy and in compliance with the National Health Act.
Conclusion
This article has assessed the admissibility of digital medical evidence in South African law.it has presented that forensic investigation has moved to digital but the legal framework is analogue. The DNA Act governs the collection but does not cover the laws of how digital information should be maintained. The Electronic Communication and transaction Act lacks guidance for forensic evidence and health records to be safely kept.
The comparative analysis of United States and Canada with regards to strict authentication standards is a clear indication that South Africa should adopt it these standards to eliminate risks such as non-reliable forensic evidence and wrongful arrests.
Reference(S):
Cases
S v Ndhlovu 2002 (6) SA 305 (SCA)
S v Brown (CC 54/2014) ZAWCHC 128 (WCHC)
Minister of Police v Kunjana 2016 (2) SACR 540 (SCA)
De Jager v Netcare Limited and Others( 42041/16) (2025)
Legislation
National Health Act 61
Criminal Law (Forensic Procedures) Amendment Act 37 of 2013,
Electronic Communications and Transactions Act 25 of 2002,
Cybercrimes Act 19 of 2020.
Bibliography
Schwikkard PJ and Van Der Merwe SE, Principles of Evidence (4th edn, Juta 2016) 415
[1] South African Police Service, Annual Report 2022/2023(RP 196/2023,ISNB 987-0-621-51233-5)
[2] ibid 47
[3] National Health Act 61, s 14, Criminal Law (Forensic Procedures) Amendment Act 37 of 2013, Electronic Communications and Transactions Act 25 of 2002, Cybercrimes Act 19 of 2020.
[4] Electronic Communications and Transactions Act 25 of 2002 (n 3) s 15(1) and s 15(3)
[5] Ibid s 15(3)(a)-(d)
[6] Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 (n 3) s 15G
[7] ibid s 15I
[8] Protection of Personal Information Act 4 of 2023, s 26 and s 19
[9] National Health Act 61 of 2003(n 3) s 14
[10] Ibid s 15
[11] Electronic Communications and Transactions Act 25 of 2002 (n 3) s 14
[12] Ibid s 15(3)
[13] Criminal Procedure Act 51 of 1977, s 212(4)
[14] Cybercrimes Act 19 of 2020 (n 3) ss 2,3 and 24
[15] S v Ndhlovu 2002 (6) SA 305 (SCA)
[16] Ibid para 18
[17] S v Brown (CC 54/2014) ZAWCHC 128 (WCHC)
[18] Minister of Police v Kunjana 2016 (2) SACR 540 (SCA)
[19] Ibid para 22
[20] De Jager v Netcare Limited and Others( 42041/16) (2025)
[21] South African Police Service National Instruction 1 of 2015
[22] Schwikkard PJ and Van Der Merwe SE, Principles of Evidence (4th edn, Juta 2016) 415
[23] Ibid 416
[24] Ibid 417
[25] Cyber Crimes Act 19 of 2020
[26] Federal Rules of Evidence , Rule 901(a)
[27] Canada Evidence Act, R.S.C, 1985, c. C-5
