Facts

The appeal arose from the convictions and sentences of the two appellants on charges linked to the commission of serious offences. In challenging their convictions, the appellants contended, among other things, that the state’s case rested on circumstantial evidence in the form of video footage and cell phone records, and that the cell phone records were, in particular, inadmissible because they had not been authenticated by a witness from the service provider whom the state had initially indicated it intended to call.

During the trial, the state relied on Vodacom data and documentation related to the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 to place the appellants at OR Tambo International Airport when the deceased had been collected and also later in Edenvale, where the deceased had been allegedly held against his will, murdered and his body buried. The defence team objected to the admission of this material. Although the records were provisionally admitted on the basis that a Vodacom representative would later be called to authenticate them, that witness was not called to testify. The appellants argued that, absent such authentication, the records remained inadmissible hearsay and could not be relied upon.

The state nevertheless led evidence from Lt. Col. Schnelle, Lt. Col. Neethling and Mr Budhia. Their evidence dealt with the obtaining, analysis and interpretation of the cell phone data; the operation of the relevant base stations; and the location of the relevant devices at the material times. The question before the court was whether that evidence was sufficient to establish the admissibility and evidential weight of the records despite the absence of a dedicated Vodacom authentication witness.

Legal question

The principal issue was whether the failure to call the Vodacom witness rendered the cell phone records inadmissible. This, in turn, required the court to consider a broader evidentiary question: whether cell phone records generated automatically by a telecommunications system should properly be treated as documentary evidence, which may attract hearsay concerns, or as real evidence, the admissibility of which depends on proof of the reliability and integrity of the system that produced it.

Applicable law

The court considered the general principles of the law of evidence relating to the admissibility of electronic material, with a particular focus on the distinction between documentary and real evidence. In Kapa v The State ZACC 1 [2023] (4) BCLR 370 (CC), the Constitutional Court reaffirmed that not every evidentiary irregularity renders a trial unfair, and that the admissibility of evidence ultimately turns on whether its reception is consistent with the interests of justice and the right to a fair trial.

In Ex parte Rosch [1998] 1 All 8A 319 (W) and S v Ndiki and Others [2008] (2) SACR 252 CK, the High Court recognised that information generated automatically by a computer system, without human intervention, may constitute real evidence rather than hearsay. In such cases, admissibility depends on the reliability and accuracy of the system and process that produced the information, rather than on the credibility of a human declarant. By contrast, S v Brown (1) SACR [2016] (WCC) illustrates that where electronic material reflects human creation or intervention, it may be more appropriately treated as documentary evidence.

Application of the law to the facts in Mohapi Thabo

The court held that the absence of the Vodacom employee as a witness was not fatal to the admissibility of the cell phone records. It accepted that admissibility is governed by the ordinary principles of evidence and that a court is not automatically required to hear from a Vodacom, MTN or Cell C employee, provided that a competent witness can explain how the data was obtained and why it can be regarded as reliable. On the facts, the court was satisfied that such evidence had in fact been led.

In reaching that conclusion, the court placed considerable weight on the experience and expertise of the state witnesses. Schnelle had extensive experience in telecommunications investigations within the South African Police Service. Neethling had long-standing experience in cell phone data tracking and mapping, and Budhia, a Vodacom radio engineer, gave evidence concerning the relevant base station coverage at OR Tambo International Airport. The court found that their evidence sufficiently explained how the records were generated, obtained and interpreted. Importantly, it was never put to any of these witnesses that the records had been altered or tampered with. Their evidence therefore stood uncontested.

The court then turned to the classification of the records themselves. It found that the Vodacom printouts had been generated by a computer and were not dependent on human intervention. For that reason, they were properly to be treated as real evidence. The court distinguished this from S v Brown, where the images in question had involved human creation and manipulation, making them more appropriately treated as documentary evidence. By contrast, in this matter, the cell phone data had been generated automatically by the telecommunications system and obtained pursuant to lawful process.

The court held that, once regard was had to the manner in which the records were produced and the competent explanatory evidence led by the state, the trial court had not misdirected itself in admitting and relying on the cell phone records. It also found that the admission of the records did not infringe the appellants’ right to a fair trial and did not render the trial unfair. On that basis, the appeal against conviction and sentence was dismissed.

Key takeaways

The judgment confirms that cell phone records are not inadmissible merely because the party tendering them does not call a representative from the telecommunications provider. What matters is whether the court is presented with competent evidence explaining how the data was generated, obtained and analysed, and why it can be regarded as reliable.

The decision is also significant for its endorsement of a functional approach to electronic evidence. Courts will look beyond labels and assess whether the evidence was generated through human input or by an automated electronic process. Where the latter applies, such material may constitute real evidence rather than hearsay.

For litigants and practitioners, the judgment provides useful guidance on the evidential foundation required for the admission of electronic records. Although a service provider witness may in some cases remain desirable, the absence of such a witness will not necessarily be decisive if the reliability and integrity of the data can be established through other competent evidence.