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of electronic records in court proceedings. The “best evidence rule”10
could be applied to electronic records by providing a method to evaluate
the integrity of an electronic record by considering the reliability of the
record-keeping system that generated the electronic record. The person
seeking to introduce an electronic record has the burden of proving the
integrity of the record by adducing evidence of the reliability of the
record-keeping system that created and stored the electronic record. A
court or tribunal may consider adherence to record-keeping standards as
a relevant factor in determining the reliability of the system.
2.4 Recommendations:
- The Ministry of Communications, Science and Technology, in
consultation with such stakeholders as the Bank of Botswana,
financial institutions, the Botswana Stock Exchange, brokerage
houses, the financial and commercial bar, business groups, and
labour and consumer groups, develop legislative proposals for an ecommerce act.
- The Ministry of Trade and Industry, in consultation with such
stakeholders as the Bank of Botswana, financial institutions, the
Botswana Stock Exchange, brokerage houses, the financial and
commercial bar, business groups, and labour and consumer groups,
examine corporate and securities legislation to determine whether
equivalency legislation for e-commerce is adequate and what, if any,
additional legislative amendments may be required.
- The Ministry of Finance and Development Planning in conjunction
with the Bank of Botswana and in co-operation with other
stakeholders, such as financial institutions, the Botswana Stock
Exchange, brokerage houses, the financial and commercial bar,
business and consumer groups, examine the needs of financial
institutions for specific legislative authority for additional use of
electronic transactions.
- The Attorney General’s Chambers examine the Rules of Criminal
Procedure and the Rules of Civil Procedure, in consultation with the
Law Society, to identify amendments to the Rules required to ensure
that electronic documents receive equivalent treatment in judicial
proceedings.
- All Ministries and parastatals review their records retention policies
to ensure that they are up-to-date to meet the requirements of an
electronic environment.
- All Ministries review their legislation and policies to identify
restrictions on the implementation of e-Government
10
An original document should be presented to a court; if it is not available due to loss or is
unduly burdensome to obtain, a copy may be presented but it is likely to be given less
evidentiary weight.