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n South African Journal of Criminal Justice - Search and seizure of electronic evidence : division of the traditional one-step process into a new two-step process in a South African context
With the advent of computer technology the basic foundations for the search and seizure of evidence have undergone a shift from the material world to the virtual world of cyberspace. All evidence, be it material or electronic in nature, must be gathered with due observance to the Constitution.
Electronic evidence as a legal concept is new to South African law. The object of an electronic search and seizure procedure is to gather electronic evidence, but this term has not been defined in a universally accepted manner. Although numerous definitions exist, no single definition of electronic evidence has been adopted in South Africa. An appropriate definition is presented in this article.
The physical dynamics of the search and seizure of electronic evidence differ from traditional search and seizures in that two seizures take place. Firstly, the seizure of the hardware, namely the computer or computer components, takes place, and secondly, information is seized after the computer or computer components have been searched. These seizures occur at different times and in different places and are usually performed by different people. The legal implications of this two-step process are discussed in this article.
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