When evidence will not be admissible in terms of Section 35(5) of the Constitution

“Legal principles and interests can often be in conflict with each other. An accused person’s right to be subjected to due process is sometimes in conflict with society’s desire to have guilty people convicted of their crimes. With this conflict in mind, we can analyse the difficulty in determining the admissibility of evidence,” says Johan Potgieter.

Not all evidence obtained will be constitutionally permissible. Section 35(5) of the Constitution 1996, provides as follows: “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”.

This Constitutional provision can be used to create a clear two-legged approach to determine if evidence should be excluded based on constitutional policy reasons. Firstly, if the particular evidence would lead to an unfair trial and secondly if the admission of the evidence would be detrimental to the administration of justice. Once the two-legged threshold test has been passed, it is also necessary to establish a causal link between the procurement of the evidence and the rights that were violated.

The admissibility of evidence is linked to the comprehensive right to a fair trial and substantive fairness. Thus, the determination of admissibility does not merely hinge on the strict two-legged approach. Rather than relying on a closed list of factors the facts of every case will be a significant consideration in determining admissibility. The courts have illustrated this holistic approach numerous times such as in the following cases.

In S v Mark 2001 (C) the court excluded evidence obtained by the police by virtue of torturing some of the witnesses, since the evidence was clearly obtained in a manner that violated the rights of the witnesses. The witnesses, however, also gave statements two years later. The court said that the torture did not compel the witness to make the statements that they made two years later. Thus, the causal link between the violation of their rights and the evidence in dispute was broken and thus the evidence gained two years later was admissible.

In the case of S v Naidoo 1998 (N), the police received judicial permission to intercept telephonic conversations by deliberately lying under oath. This allowed the police to breach the accused’s constitutional right to privacy. The court said that it should not set a precedent that will open the door for the police to infringe upon constitutional rights to get information, especially when the police clearly acted in bad faith. The court thus held that to admit this evidence would be detrimental to the administration of justice.

The case of S v Pillay 2004 (SCA) was linked to the Naidoo – case as Pillay was involved in the same crime and the evidence obtained in Naidoo led to the accusations against Pillay. In S v Pillay the court however admitted some evidence that was obtained in an unlawful manner, as this particular evidence was hidden in an obvious location and would have been found lawfully at a later stage anyway. Thus, even though admission of the evidence may be prejudicial to the accused, it would not have rendered the trial unfair because the evidence would have been found anyway.

There have been many other cases where the courts have had to deal with the admissibility of evidence, but the main principle illustrated by these cases remains the same. Based on the facts of the particular case the interest of both parties needs to be weighed up to determine if the admission of evidence would render the trial unfair or be detrimental to the administration of justice.

Article by Johan Potgieter, Candidate Attorney (B.Comm; LLB)