A legal expert explains how digital evidence is shaping court outcomes in South Africa.
Image: Supplied
Digital evidence is no longer the supporting material in South Africa’s courts – it’s now determining the outcomes in criminal and civil court cases.
This is according to Cor van Deventer, Director of VDM Incorporated, who says the trend is visible in every major judgment handed down this year. He referred to the recent appeal judgment in the case Cuba and Another v S, delivered by the Western Cape High Court in February. The court dismissed the appeal of two men convicted of a 2016 home invasion in Hermanus.
"The court focused on the evidentiary records rather than the violence itself. The deciding factor was the digital trail. Cellphone records placed the appellants near the scene, and tower‑to‑tower movement patterns matched the route of the fleeing taxi and the timing of communications between the two men," Van Deventer explains.
Police intercepted the taxi shortly after the incident, recovering firearms, ammunition and clothing items. But it was the digital evidence that tied the sequence together.
The appellants’ own devices also worked against them: one phone connected to a tower facing the street where the incident occurred, placing it within a narrow radius that aligned with the State’s timeline.
"The combined weight of the digital and forensic material formed a reliable, coherent picture for the judges, who dismissed the appeal and confirmed the convictions." Van Deventer says this case sets the tone for 2026, with courts relying on digital records as primary rather than background evidence.
A second 2026 judgment, S v Makhubela and Others, shows the same pattern though in a completely different context - this time in the context of an economic crime. In this case the State reconstructed a fraud scheme using digital financial records, device extractions and communication metadata.
"Bank transaction logs established the flow of funds, WhatsApp and SMS messages revealed coordination between the accused, and device extractions provided timestamps, document histories and location data that supported the State’s version of events.
"Some of the disputed transactions were authorised from devices registered in the accused’s own names, which contradicted their claims that they were not involved in the movement of funds". Van Deventer adds that the WhatsApp messages recovered from one handset, which included instructions on how to "move the money" and screenshots of account balances were a further death knell for the accused.
It was the metadata that provided the real breakthrough. Metadata - the hidden timestamps and digital fingerprints created automatically by devices and documents - showed that a spreadsheet at the centre of the fraud had been created and edited on a laptop seized from one of the accused. "The timestamps aligned exactly with the period in which the fraudulent transactions were executed. It’s very difficult to explain away a digital footprint like that".
The court gave more weight to the digital records than the oral testimony. "Where the witnesses disagreed or couldn’t remember specific details, the metadata filled in the gaps. The judgment made it clear that digital financial trails now play a fundamental role in proving intent, knowledge and participation in criminal matters".
According to Van Deventer, digital evidence is not confined to serious violent crime. "It’s become the backbone of prosecutions in fraud, corruption and organised‑crime matters - areas where documentary and digital records often speak louder than human memory".
The trend is also extending beyond criminal matters. The Northern Cape High Court recently denied a plea in a civil claim because the defendants failed to provide material facts and supporting documentation.
"Denials without records or supporting evidence do not meet the standards required in civil procedure. Digital documentation – from emails and contracts to metadata and audit trails – is now a baseline requirement," he says.
zelda.venter@inl.co.za