The rapid evolution of technology has transformed communication, commerce, and the practice of law. One of its most significant impacts on the practice of law is the emergence of electronic evidence.

In an interlocutory matter in the case of Socotra Island Investments (Pty) Ltd v The Commissioner of Inland Revenue (HC-MD-CIV-ACT-DEL-2020/01448) [2024] NAHCMD 689 (14 November 2024), the court had to determine whether it should accept information contained in electronic bank printouts as true or accurate.

The applicants (who are also the two plaintiffs in the main action) sought an order declaring certain electronic bank statements and proof of payments, which they adduced during the trial of the matter, as admissible evidence.

The issue originated from broader litigation between the parties in respect of a claim for repayment of value added tax payments made to the Receiver of Revenue.

The matter was set down for trial, during which the plaintiffs sought to prove a series of financial transactions: payments from the first plaintiff to the second plaintiff for construction services and corresponding receipts by the second plaintiff, as well as payments from the second plaintiff to the Receiver of Revenue in respect of value added tax (“VAT”).

The plaintiffs led the evidence of officials from various commercial banks who introduced all the documentation relating to the payments, which included electronic records such as proof of payments and bank statements. The officials further tendered into evidence affidavits deposed to under s 25 of the Electronic Transaction Act 4 of 2019 (“Electronic Transactions Act”), confirming the authenticity of the electronic records.

The defendants conceded the VAT payments from the second plaintiff to the defendants but relied on rule 28(7)(b) of the High Court Rules to object to the evidence tendered on behalf of the plaintiffs in relation to the payments from the first plaintiff to the second plaintiff, stating that it cannot be admitted as the correctness or truth of the payments so made.

The defendants argued that the payments reflected in the printouts of the bank records, constitute hearsay evidence and are therefore not admissible under s 25(4) nor ss 25(6) to (10) of the Electronic Transactions Act, as proof of the truth of the contents thereof.

The defendants contended that the payments reflected in the said printouts may be admissible under ss 25(1) and (2) of the Electronic Transactions Act, as real or circumstantial evidence, but not as the truth of the contents thereof.

The defendants’ objection was based on their contention that the probative value of the payments by the first plaintiff to the second plaintiff as reflected in electronic bank records, depended on the credibility of individuals other than those through whom the bank records were introduced into evidence. According to the defendants, none of the bank officials had personal knowledge of those payments, nor were they personally involved in causing those payments to be made. The defendants argued that employees of the first plaintiff who caused the payments to be made on the electric banking systems (i.e. loaded and approved the payments), had to come and testify as the instructions entered by these individuals were automatically executed, recorded, and stored by the banks’ computer systems.

The court was therefore faced with the question whether the payments reflected as paid and received on the printouts of the applicable bank statements of the first and second plaintiffs, as well as proof of payments, constitute hearsay evidence and therefore inadmissible under s 25(4) and ss 25(6) to (10) of the Electronic Transactions Act, as proof of the truth of the contents thereof. 

The court considered that –

1. relevance is an essential requirement for evidence to be admissible and it is predicated on a standard of practical logic and reason;

2. the general rule of relevance is that all facts that are logically and legally relevant to legal proceedings are admissible and ought to be proved. Therefore, once any evidence has passed the hurdle of relevance, it is admissible provided that it does not fall within the ambit of an exclusionary rule of evidence;

3. s 17(1) of the Electronic Transactions Act provides that no statement, representation, expression of will or intention, transaction or communication is without legal effect, validity or enforceability solely on the ground that it is in the form of a data message;

4. s 25 of the Electronic Transactions Act deals with the admissibility and evidential weight of data messages and computer evidence;

5. s 1, defines ‘computer evidence’ to mean data evidence or information evidence and defines ‘data evidence’ to mean evidence of any matter relevant in legal proceedings, if that matter is represented in a computer system directly and can be made readily understandable to a human being without requiring any special skills or knowledge on the part of any person and includes a display, printout or other output of that data;

6. s 25 of the Electronic Transactions Act, which deals with the admissibility and evidential wight of data messages and computer evidence, provides amongst others that a data message created by or on behalf of a person in the ordinary course of business - or a certified copy, printout, or extract from such a message - is admissible as evidence of the facts it contains in any civil, criminal, administrative, or disciplinary proceedings, provided it is supported by an affidavit from the person who controlled the information system when the message was created. The affidavit must establish that the data message was generated, stored, and communicated in a reliable manner, and the integrity of the data message was properly maintained;

7. s 1 of the Electronic Transaction Act defines a ‘data message’ to mean data generated, displayed, sent, received or stored by electronic, optical or similar means and which appears to a user as a logical unit, including, but not limited to, electronic mail, a web page, mobile communications, such as SMS messages, audio or video recordings, telegram, telex or telecopy; and

8. the defendants’ hearsay objection was rooted in section 25(6) of the Electronic Transactions Act, which provides that “Any document containing data evidence and purporting to be a printout of data or information stored or created by a computer system is admissible in legal proceedings if it has been authenticated by means of admissible evidence”. The defendants relied on the case of Nghixulifa,^[1] where the court held that a data message containing hearsay evidence, but which was authenticated under s 25 of the Electronic Transactions Act, is admissible as real or circumstantial evidence, but not the truth of the contents thereof (because of the absence of testimony from the individuals who initiated the payments).

The court rejected the defendants’ objection and held that –

1. the documents which the plaintiffs tendered into evidence, are clearly data messages and relevant to prove the payments by the first plaintiff to the second plaintiff;

2. the defendants’ reliance on Nghixulifa, is misplaced, because s 25(6) deals with data evidence whereas the printouts tendered into evidence by the plaintiffs in this matter amount to data messages;

3. the general requirement that the data messages (the printouts) must be proved to be authentic and the original produced, is dispensed with. S 25(4) provides an exception to the manner of proof and evidential weight ordinarily to be accorded to a data message. The section provides for two situations in which a data message may on its mere production be admissible in evidence:         

         a) the data message is made by a person in the ordinary course of business                      

         b) it was made in the ordinary course of business;

4. once either of the above two situations is present (which the court found it was), the data message is, on its mere production, admissible in evidence as rebuttable proof of the facts contained therein and therefore, there is no need to place the original data message before court; and

5. the objections raised to the admissibility of evidence tendered by the plaintiffs were dismissed.

This ruling confirms the Electronic Transactions Act’s role in reconciling the traditional law of evidence with modern technology.

Beyond this case, the decision signals that the Namibian judiciary is prepared to embrace digital evidence, aligning legal practice with technological reality. As businesses and governments increasingly rely on electronic systems, such clarity ensures disputes can be resolved efficiently, without undue scepticism toward the tools that define contemporary commerce.

[1] The State v Nghixulifa (CC 02/2014) [2021] NAHCMD 302 (24 June 2021) para 33.