Independent Online reported this week that a child abuse case involving a Durban mother has been provisionally struck from the roll. The case cannot continue until evidence from the mobile phone which captured footage of the alleged events has been returned to the court from the SAPS cybercrime unit in Pretoria.
This is a puzzling and somewhat infuriating turn of events. In this case, there is no need to wait for the SAPS cybercrime Unit to analyse and/or comment on the video. It was widely distributed on social media and clearly depicted abuse – there seems no reasonable basis to challenge the admissibility, or authenticity of the video. Even if challenged, corroboration by calling witnesses and speaking to the child would surely have negated the need for a 17-month delay. I find it hard to believe that a Magistrate would find this type of visceral evidence inadmissible.
The South African law of evidence is based on English law and is similar to the United Kingdom and other commonwealth jurisdictions. Given the rapid emergence of technology, novel types of evidence often pose a challenge to the legal system; however, we are nearing the end of 2019 – it is nonsensical, and not at all sustainable, that simple evidence in the form of a mobile phone video causes a case of this nature to be delayed for such a long period of time (the events took place in March 2018).
The law of evidence easily accommodates this type of evidence without the need for an in-depth cyber-crime unit analysis. In most instances of child pornography and abuse, critical evidence will be electronic in nature. Basically, the law of evidence does not create a separate category for digital evidence; rather, it is accepted to court either as a thing (like a gun), or as a document. Although there is differing legal thought behind some of this, and regardless of the legal approach one takes, the simple fact remains that assessing the authenticity of evidence of this nature, and providing a prosecutor with a view thereon should take no longer than several days – perhaps two weeks at most. It should certainly never take months; and the fact that this delay has caused this case – with shocking allegations of abuse against the most vulnerable of victims – to be provisionally struck from the roll is serious cause for concern.
Law Blog 