The recent scandal involving suspended Independent Development Trust (IDT) CEO Tebogo Malaka has gripped South Africa’s legal and political landscape. A video allegedly showing Malaka and IDT spokesperson Phasha Makgolane attempting to bribe investigative journalist Pieter-Louis Myburgh with R 60 000.00 has sparked criminal charges and public outrage. 

One of the most obvious objections that can be raised to the video evidence in such circumstance is the legality of the hidden cameras. However, even if being set up may raise ethical concerns South African law does not automatically exclude such evidence. Our Constitution determines that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if its admission would render the trial unfair or otherwise detrimental to the administration of justice.  

South African courts have long grappled with the admissibility of electronic evidence, including video recordings. The foundational legal principles are governed by the provisions of:

• The Electronic Communications and Transactions Act 25 of 2002 (ECTA);
• The Law of Evidence Amendment Act 45 of 1988; and
• Common law principles of relevance, reliability, and authenticity.

Under Section 15 of ECTA, a data message (including video) is not inadmissible merely because it was generated electronically. However, courts are required to assess its evidential weight by considering:

• The reliability of how the video was generated, stored or communicated.
• The reliability of the manner in which the integrity of the video was maintained (i.e., whether it remained unaltered); and
• The manner in which its originator was identified

Several cases have shaped the admissibility of video evidence such as the case of S v Ramgobin and Others 1986 (4) SA 117 (N) wherein the Court held that video footage must be authenticated by someone who can testify that it accurately represents the events and has not been tampered with. The recent case of S v Kekana and Others (SS65/2021) [2022] ZAGPJHC 1065 further reiterated that video footage is considered real evidence, distinct from documentary evidence and for admissibility, the state must prove the originality of the footage, its authenticity, that it relates to the incident in question, and that no tampering or interference occurred.

A few guidelines to verify that a video is authentic and admissible:  

1. Chain of custody: Establish who recorded the footage, how it was stored, and who had access to it.
2. Expert testimony: A forensic video analyst may be required to confirm the footage is unaltered.
3. Affidavit of authenticity: The journalist or technician must submit an affidavit confirming the video’s origin and integrity.
4. Contextual relevance: The footage must directly relate to the alleged matter and not be misleading or edited to distort events.
5. Privacy and legality: The recording must not violate privacy laws or be the result of unlawful entrapment. However, public interest and investigative journalism may justify covert recording in certain contexts.

The IDT scandal extends beyond mere political discourse; it also represents a critical test of South Africa’s legal system and its capacity to manage and adjudicate digital evidence. If the video passes the rigorous standards of admissibility and authentication, it could become a pivotal piece of evidence in prosecuting corruption. As the case unfolds, legal practitioners, journalists, and the public alike will be watching closely, not just for justice, but for how the law adapts to the digital age. 


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