The impact of electronic evidence in forensic accounting investigations
Janse van Rensburg, Wilmari
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This study revolves around the admissibility of electronic evidence obtained during forensic accounting investigations. Electronic evidence is problematic for the forensic accountant, in that the courts have difficulties with the admissibility of electronic evidence. The research method used in this dissertation is a literature study or literature review. Firstly, the study aims to define a forensic accountant. The need for the forensic accountant is determined, as well as the definition and the roles and responsibilities of the forensic accountant. The study further aims to establish how the forensic accountant is regulated in South Africa. Secondly, this study aims to provide a historical overview of South African legislation that addresses electronic evidence. Applicable legislation is the Electronic Communications and Transactions Act 25 of 2002, the Criminal Procedure Act 51 of 1977, the Law of Evidence Amendment Act 45 of 1988, the Civil Proceedings Evidence Act 25 of 1965 and the repealed Computer Evidence Act 57 of 1983. To determine the challenges that arise from electronic evidence, it is critical to understand how electronic evidence is classified in terms of the traditional forms of evidence. Documentary evidence, real evidence and evidence as the product of an apparatus, with specific reference to electronic evidence, is discussed for the purpose of this study. Hearsay evidence, the originality of electronic evidence, as well as the authenticity and reliability of electronic evidence hamper the admissibility of electronic evidence. The impact of legislation on the aforementioned difficulties is considered in this study. The problematic nature of electronic evidence already creates challenges during legal proceedings. The forensic accountant can follow certain steps and procedures to better the chances of the admissibility of electronic evidence. This study establishes how electronic evidence should be gathered, stored and analysed by the forensic accountant in order to be admissible legal proceedings. Lastly, this study aims to determine how the UNCITRAL model, on which the Electronic Communications and Transactions Act 25 of 2002 has been based, compares to the act (25 of 2002) itself. The legislation addressing electronic evidence in Canada and Australia is also considered.