Topic 4: The Exclusion of Relevant Evidence – Unconstitutionally
Obtained Evidence:
Introduction:
Unconstitutionally obtained evidence: evidence which is obtained in a way that
violates a right in the BOR/ Const.
Court may excl. this evidence, despite it being relevant.
2 competing interests: Exclusion of Re
o (1) Protecting the party who was subjected to obtainment of evidence in an Evidence
unconstitutional manner
o (2) State has an interest in ensuring that criminals don’t go unpunished
Interests of the crime victim must feature prominently when U
considering whether to admit it Privilege
Ob
Excl. of such evidence often leads to acquittal of
people who are factually guilty of the crime.
E.g. A & B return from a party, the morning after. On their way back, they’re
attacked & assaulted by 2 men who steal their possessions. The men Private Privilege State Privilege
are found & charged with robbery & assault. It turns out that when
the police were investigating the case, they physically assaulted the accused 1 to force them to give them
accused 2’s location. Should the court admit the state’s evidence given that the accused was assaulted?
Subject of great debate in the legal sphere:
o (1) Inclusionary approach
o (2) Exclusionary approach
Courts nowadays are quite fluid in their approach ito incl. unconst. obtained evidence in cases where the
police were acting expeditiously, or they obtained real evidence – this area of law is a grey area as courts are
applying discretionary measures in deciding whether to excl. the evidence or not
Inclusionary Approach:
Comes from English common law
POD: All evidence is admissible, regardless of how it was obtained
Aim: ensuring that the truth is always heard & incl. in the fact-finding process
Arguments for:
o Rational behind the approach incl. the fact that the ends justify the means
The court is always able to find the truth in the end
o Relevance of the evidence isn’t impaired by the manner in which it was obtained
By focusing on the conduct of the police, & not on the crime at issue, the blurring of issues is
a problem.
o Other remedies are available to those who’ve had their const. right infringed upon
E.g. const. damages (lecturer likes this remedy rather than excl. evidence)
o Excl. the evidence doesn’t necessarily deter police from breaching const. rights when obtaining
evidence
o Excl. such evidence protects guilty person
o Excl. essential evidence from fact-finding process is a huge issue in truth finding
o Excl. evidence hinders police during their duties
Exclusionary approach:
Originated in the jurisprudence of the Supreme Court in the USA
o Burger CJ (American SC Judge) opposed this rule & said it amounted to “the excl. of truth from the
fact-finding process”.
Strict application: all evidence which is obtained in an unconst. manner is excl. even if it’s relevant
Relaxed application: court granted discretion in deciding whether the excl. or incl. the evidence
o Approach used in SA law of evidence.
Aim: protection of const. rights & promotion of due process in judicial system
Many countries have adopted this, particularly those which have abandoned parliamentary sovereignty in
favour of a constitution
o Usually this rule is adopted as a POD, with applicable exceptions or judicial discretion
o Sometimes applied in a rigid manner, sometimes applied in a more relaxed manner
, Rationale: this evidence should be excl. because its admission compromises other values that we may hold
as a society (e.g. right to privacy or dignity)
o NB in SA – due process is a const. guarantee – so if the courts always admitted such evidence, the
judicial system would act in a way that’s contrary to the const., which is undesirable.
o Ensure the courts themselves uphold const. principles.
Arguments for:
o Deters police from obtaining evidence in an unconst. manner
Counterpoint: deterrence shouldn’t be viewed in the narrow traditional way.
The educative role & ultimate preventative effect is more NB than immediate deterrence
S v Mphala: court excl. the evidence ito s35(5) Const & specifically referred to the
disciplinary function of the court. This is a case where the court had to resort to systemic
deterrence as a basis for excl. evidence of a pointing out obtained in breach of const. rights.
o Promotes due process in the judicial system
Does away with the idea that the truth must be ascertained at all costs
Promotes the idea that the correct processes must be followed for the rights & interests of
all relevant parties to be promoted.
Allowing evidence to be obtained unconst. undermines const. guarantees.
While the excl. rule may result in acquittal of a guilty party, this is justified based on the fact
that the excl. rule’s purpose is to ensure that other citizens aren’t deprived of their const.
long term.
Social justice prevails over individual justice.
Lecturer likes this advantage of the excl. rule
o Upholds the doctrine of legal guilt
Doctrine: someone can only be found guilty if the correct processes are followed
Lecturer has issue with such a strong emphasis on legal procedure because our legal
professional centres often struggle to follow correct procedure.
S v Lwane: the state had tendered evidence obtained from the accused at an earlier
preparatory examination where the accused testified & inculpated himself in his capacity as
a witness. At the examination, the accused (witness) hadn’t been warned that he wasn’t
obliged to give evidence which would expose him to criminal charges. The trial court
convicted the accused on the basis of his self-incriminating evidence given in the exam.
Appeal Court: “The question is whether such evidence given in the absence of judicial
warning is admissible on the prosecution of the witness. As to that, the pragmatists may say
that the guilty should be punished & that if the accused has previously confessed as a
witness it is in the interests of society that he be convicted. The answer is that between the
individual & the day of judicial reckoning there are interposed certain checks & balances in
the interests of a fair trial & the due administration of justice. The rule of practice to which I
have referred is one of them, & it is important that it be not eroded. According to the high
judicial tradition of this country it is not in the interests of society that an accused should be
convicted unless he has had a fair trial in accordance with accepted tenets of adjudication.”
o Promotes judicial integrity
Forces courts to excl. evidence which is tainted, so prevent undermining judicial system
Admitting unconst. obtained evidence, the court itself violates the const.
Admitting such evidence means the court will act contrary to their duty to uphold the const.
Admitting such evidence means courts will indirectly encourage const. violations
Admitting such evidence may create the impression that courts sanction/ condone unconst.
conduct by gov. officials.
Sometimes the judicial integrity argument may lose ground in situations where a
discretionary rule of excl. is provided for in the Const. or in leg. (e.g. s35(5) Const.)
Discretion doesn’t mean the court must ignore judicial integrity considerations when
exercising this discretion.
S v Hena & Another: “On taking office, Judges take an oath in which they swear to ‘uphold &
protect the Constitution & the human rights entrenched in it’ & to administer justice ‘to all
persons alike without fear, favour or prejudice, in accordance with the Constitution & the
law’. The situation must be actively guarded against where the protection afforded all of us
by the Constitution may be eroded through a lack of vigilance or for the sake of expediency.
, Central to the role of the Judiciary is the protection of the integrity of the criminal justice
system & the promotion of proper & acceptable police investigation techniques. In this case,
there is evidence of an abdication of responsibility on the part of the police, as a matter of
policy or practice, ‘sub-contracting’ their investigation functions to anti-crime committees.
The unlawfulness of that is patent, & the consequences that flowed from it in this case
should not surprise anyone. Untrained civilians, not subject to the hierarchical discipline of
the police service & not subject to political & administrative oversight, took the law into
their own hands. (I have had occasion previously to warn of the consequences of this.) It
would undermine both the Constitution & the integrity of the criminal justice system to
allow this systemic abuse to go unchecked. This is clearly a factor that weighs heavily against
the admission of the tainted evidence.”
o Reinforces existing rules which regulate police power & duties
Police have primary rules governing their conduct, so such an excl. rule ensures that these
primary rules are upheld (don’t want to have secondary rules which undermine primary
rules)
o The principle of self-correction
An effective system of due process must be able to correct abuses in the system at the
instance that it’s established that abuse has
occurred.
The excl. rule has a purpose of serving as an effective internal tool to maintain & protect the
value system as a whole.
Application in South African legal context:
There’s need for a middle ground in SA – neither the strict application of the excl. rule nor the strict
application of the incl. rule is ideal
o Strict application of excl. rule: risk of letting guilty persons walk free
o Strict application of incl. rule: the state runs the risk of fundamental rights violations
Most countries have developed a flexible excl. rule, AKA ‘qualified exclusionary rule’
o Excl. rule is generally followed, but courts have discretion to decide when to deviate from the rule.
o E.g. Ireland, Namibia, New Zealand
S35(5) Const: 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.
o Flexible excl. approach (generally excl. such evidence if it is detrimental/ unfair)
o Const. warnings mirror those in the Miranda case in the USA
S35(5) Const. mirrors s24 of the Canadian charter:
o (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate & just in the circumstances.
o (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence
shall be excluded if it is established that, having regard to all the circumstances, the admission of it in
the proceedings would bring the administration of justice into disrepute.
Historical development:
Common law:
S252 CPA: where the CPA doesn’t provide for a certain area of law, we apply the law as it was on 30 May
1961 (English common law)
English common law: fairly strict inclusionary approach
o Courts wouldn’t concern themselves with how evidence was obtained except in criminal cases
where the judge had a discretion not to admit evidence if the strict rules of evidence would operate
unfairly against the accused
Past (before 1994): courts used the common law to incl. evidence rather than excl. unlawfully obtained
evidence (problematic)
o Uys v Forbes: used discretion to excl. evidence on the grounds of fairness & public policy
, Common law isn’t rendered redundant by s35 Const. – this section only applies where the improperly
obtained evidence was obtained in a way violating a right in the BOR – many other instances exist where
evidence was unlawfully obtained but isn’t breaching a const. or BOR right
o Courts apply common law discretion ito when evidence is obtained unlawfully but when this doesn’t
violate a const./ BOR right
o S v Kidson: court defence challenged admissibility of evidence of a recording & transcript of a
conversation between a state witness & the accused who’s charged with murder. The recording was
made covertly by the witness with the police’s help. The witness himself was a suspect in the case &
cooperated with the police. During the conversation with the accused, the witness deliberately
invited incriminating statements from the accused w/o disclosing himself as a police agent. The
court held that the monitoring of the conversation wasn’t prohibited by the Interception &
Monitoring Prohibition Act & the info conveyed wasn’t confidential. The court held there was no
entrapment & although the police may have played a trick on the accused, there was no deception
amounting to disreputable or unacceptable police conduct. The court clearly distinguished the facts
of this case from those in S v Hammer. “It is correct, & it has been emphasised in a number of
reported cases, that the exclusionary provision contained in s 35(5) alludes expressly only to
evidence obtained in a manner that violates any right ‘in the Bill of Rights’. But it seems to me
evident that the evidence obtained in unlawful breach of any statute must be judged broadly in the
same way since its admission may in some manner imperil the accused’s right to a fair trial. It
therefore seems appropriate to me on both legs of this approach to consider whether ‘the admission
of that evidence would render the trial unfair or (would) otherwise be detrimental to the
administration of justice’
o S39(2) Const. requires a court to promote the spirit, purport & objects of the BOR when developing
common law.
When applying the common law discretion, courts apply it using the test in s35(5) as a guide
S v Nel: good example of application of the incl. rule. Court admitted evidence of private, ‘tapped’ phone
conversations of the accused, despite the state failing to prove the proper authorisation for the monitoring
of conversations being obtained ito s118A of the Post and Telecommunication-Related Matters Act (no
longer in force). Court held that unlawfully obtained evidence could only be excl. where an accused was
compelled to provide evidence against themselves or if the evidence was obtained by duress.
S v Hammer & Others: court held that there’s a general discretion to excl. improperly or illegally obtained
evidence on grounds of fairness & public policy & that there are various factors which should be considered
by a court in deciding whether to exercise such discretion.
Interim Constitution:
Post 1994 in line with the new advent of democracy
Interim const. didn’t contain any express provision governing the admissibility of unconst. obtained evidence
During this period courts were mindful of the concept of having a const., so were careful t ensure the
protection of const. guarantees
o If a court didn’t uphold const. rights it would undermine the status of those rights & the const.
o Courts frequently excl. unconst. obtained evidence by relying on the appropriate relief provision in
s7(4) Interim Const.
o In other instances, the courts would adapt their common law discretion to excl. evidence to meet
the demands of the const.
Challenge with decisions in this period: courts tended to move to the opposite extreme by applying a very
rigid excl. approach.
o Neither approach in a rigid manner is ideal
o The presence of s35(5) in the 1996 const. doesn’t render decisions made in the interim era
redundant or irrelevant – these cases are highly influential in the development ofs35(5) & case law
Courts highly emphasised right to fair trial in this era (s25(3) Interim Const.) which is a
significant aspect of s35(5) Const. & these cases aided in drafting the current const.
Courts often relied on their discretion to excl. unconstitutionally obtained real evidence
What the courts decided in this regard during the interim era was very influential in
our current jurisprudence
Courts emphasised that while society’s interests were relevant, they shouldn’t be prioritised
over the protection of human rights guaranteed in the const.
