Chapter 16

Unconstitutionally obtained
evidence in criminal cases: section
35(5) of the Constitution
16.1 Introduction 174

16.2 Theoretical basis for excluding unconstitutionally obtained evidence 175

16.2.1 Rationales for excluding unconstitutionally obtained evidence 176
16.2.1.1 The condonation rationale 176
16.2.1.2 The deterrence rationale 177
16.2.1.3 The corrective justice rationale 177
16.2.2 Some critiques of the rationales for excluding unconstitutionally
obtained evidence 178
16.2.3 Rationales used by the courts to exclude unconstitutionally
obtained evidence 179
16.2.4 Implications of excluding unconstitutionally obtained evidence 179

16.3 Overview of section 35 of the Constitution 180

16.4 The section 35(5) test for excluding unconstitutionally obtained evidence 181
16.4.1 First leg of the test: whether admission would render a trial unfair 182
16.4.2 Second leg of the test: whether admission would be detrimental to the
administration of justice 186

16.5 Procedural issues 189

16.5.1 Section 35(5): onus of proof 190
16.5.2 Section 35(5): locus standi 191
16.5.3 Section 35(5): trial-within-a-trial 193

16.6 A section 35(5) case study of S v Van Deventer and Another 193
16.6.1 Background 193
16.6.2 Facts of the case 193
16.6.3 The admissibility test to be applied in terms of section 35(5) of the Constitution
194
16.6.4 Applying this test in terms of section 35(5) to the facts of this case 194

16.1 Introduction
This chapter focuses on the treatment of unconstitutionally obtained evidence in criminal
matters under South African law. This discussion is comparatively informed as South African
law, jurisprudence and scholarly literature generally draws from the Canadian and US
approaches to unconstitutionally obtained evidence. South Africa’s jurisprudence
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 175

post-apartheid is influenced by the Constitution, specifically the Bill of Rights.1 Under the
current constitutional dispensation, the courts have a qualified duty to exclude relevant
unconstitutionally obtained evidence, particularly if the admission of such evidence will
lead to an unfair trial or will otherwise be detrimental to the administration of justice.
Previously, the courts were not preoccupied so much with how evidence was procured, but
rather with whether it was relevant or not.2 In the Interim Constitution of 1993, there
was also no specific provision for the exclusion of unlawfully obtained evidence
although the courts relied on the right to a fair trial to deal with instances of illegally
obtained evidence.3

16.2 Theoretical basis for excluding unconstitutionally

obtained evidence
In 1968, Herbert Packer published a seminal paper entitled Two Models of the Criminal
Process4 in which he conceptualised the competing models of the criminal process as the
‘crime control’ and ‘due process’ models. The ‘crime control’ model described a criminal
justice process which, among other things, prioritised the speedy finalisation of criminal
cases based on the ‘factual guilt’ of an accused person as opposed to ‘legal guilt’, with scant
or no regard to the rights of such persons.5 On the other hand, the ‘due process’ model
described a criminal process which operates as an ‘obstacle course’ to the finalisation of
criminal cases as it prioritised the observance of the rights of accused persons.6
The constitutional safeguards in the criminal process of South Africa lean squarely to the
due process model, as opposed to the crime control model which was prevalent under
apartheid, as the rights of accused, arrested and detained persons, and even criminal
suspects, have become more central and elevated in the criminal process. This has been
done in order to provide due process rights protection and to mark a break with the
unfortunate past. The exclusion of unconstitutionally obtained evidence seeks to protect the
rights of accused, arrested and detained persons against any possible abuse of power and
process by the State, particularly the police, prosecutors and the courts to the extent that
they have done so in the past. This includes stricter rules for the collection of evidence by
law enforcement agencies and for the admission of such evidence by the courts in criminal
trials.
The general rule is that all relevant evidence is admissible in criminal matters.
However, section 35(5) of the Constitution compels the courts to exclude
unconstitutionally obtained evidence under certain circumstances, even when such
evidence is relevant. It provides that:
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 provision also gives judicial officers an oversight role over the work of the police and
prosecution authorities. Primarily, though, it orders courts to exclude any evidence if it is
collected or procured in a manner that violates rights enshrined in the Bill of Rights. In
order

1 Sections 7–39 of the Constitution

2 De Vos, W Le R. 2011(2) ‘Illegally or unconstitutionally obtained evidence: a South African perspective’ TSAR 268
3 De Vos (2011) at 269. See also Gumede v S (800/2015) [2016] ZASCA 148; [2016] 4 ALL SA 692 (SCA); 2017(1) SACR 253
(SCA) (30 September 2016) at para 19.
4 Packer, HL (1964) ‘Two models of the criminal process’ University of Pennsylvania Law Review 113(1) 1.
5 See Packer (1964).
6 See Packer (1964).
176 THE LAW OF EVIDENCE IN SOUTH

to do this, the courts need to determine whether unconstitutionally obtained evidence, if

admitted, would render the trial unfair. If not, they still need to determine whether
admission of the evidence would otherwise be detrimental to the administration of
justice or not. Courts and academics have interpreted section 35(5) of the Constitution
and some rich jurisprudence and literature is developing. However, there still appears to
be no Constitutional Court interpretation of section 35(5) to settle a number of
contradictions, which will be seen below. In interpreting section 35(5) of the
Constitution, our courts have relied on foreign law, particularly on judgments emanating
from the Canadian Courts.7 Section 39(1)(c) of the Constitution empowers them to
consider foreign law when interpreting the Bill of Rights.
The basic mischief that section 35(5) seeks to remedy is the abuse of power and
process by law enforcement agencies against accused, arrested and detained persons and
so section 35(5) protection only accrues to accused, arrested and detained persons as
opposed to anyone else, including suspects.8 However, when unconstitutionally obtained
evidence is excluded, in many instances an accused is not convicted, especially if the
police relied on such evidence to convict. The unintended consequences and implications
of exclusions on the broader societal objectives of controlling crime and preserving public
order, and on the victims of crime, are also important to emphasise. Let us look at the
rationales for excluding unconstitutionally obtained evidence.
16.2.1 Rationales for excluding unconstitutionally obtained evidence
Unconstitutionally obtained evidence can be defined as evidence that is obtained through
the violation of any of the rights contained in the Bill of Rights. However, it is also
possible
for law enforcement agencies to collect evidence without violating any of the rights contained
in the Bill of Rights, but through violation of other laws, rules and principles.9 The latter
would best be defined as improperly, illegally or unlawfully obtained evidence where the
law enforcement officers fail to abide by the rules of evidence when collecting the evidence.
There is, however, a thin line between them as unconstitutionally obtained evidence is also
improperly or illegally obtained.
Previously, at common law, in South Africa and abroad, there was no duty on the courts
to exclude relevant evidence even when obtained in an improper, illegal, unlawful or
unconstitutional manner.10 However, over the past decades this position has changed in
many jurisdictions, particularly with the advent of the ‘exclusionary rule’ from the United
States of America and from Canadian law. There are three main rationales that have been
advanced in literature for the exclusion of unconstitutionally obtained evidence. These are
the ‘condonation’, ‘deterrence’ and ‘corrective justice’ rationales.11

16.2.1.1 The condonation rationale

This rationale, also referred to as the ‘judicial integrity rationale’,12 is based on the
reasoning that the courts should not, and should not be seen to, condone police
misconduct of using

7 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982.
8 Jerome Wells ‘The admissibility of real evidence in the light of the Constitution of the Republic of South Africa, 1996’.
Submitted in accordance with the requirements for the degree of Doctor of Laws at the University of South Africa.
Supervisor: Professor SS Terblanche (November 2013) at 44.
9 De Vos (2011).
10 S Penney ‘Taking deterrence seriously: excluding unconstitutionally obtained evidence under section 24 (2) of the
Charter’ (2003) 49(1) McGill Law Journal, 105–139.
11 Penney (2003) at 110.
12 Wells (2013) at 30.
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 177

unconstitutional means to obtain evidence.13 The courts should dissociate themselves

from the violation of constitutional rights. The objective is to protect the integrity of the
judiciary and the criminal process.14 It is argued that courts become accomplices to police
misconduct if they admit evidence that was illegally acquired.15 It is not only the integrity
of the judiciary that this rationale speaks to, it is also the integrity of the criminal justice
system as a whole. By refusing to be accomplices, it is hoped that this will help to reform
police behaviour and improve compliance with the dictates of the law. In this way the
condonation rationale complements the deterrence rationale as it also seeks to impact on
the behaviour of police officers.

16.2.1.2 The deterrence rationale

The ‘deterrence’ rationale seeks to discourage or deter law enforcement agencies from
collecting evidence through unconstitutional means.16 The objective of excluding evidence
under this rationale is to discipline the police who have collected such evidence and to deter
future misconduct.17 This rationale focuses on past conduct, which the courts cannot undo
except by excluding evidence, and on preventing future similar violations. It seeks to
safeguard substantive and procedural due process rights of the criminal process. Ally has
argued that to achieve effective deterrence, constitutional violations must lead to an
automatic exclusion of evidence.18 However, this would seem to be more a normative
position than reality, as many jurisdictions give courts a discretion to decide.

16.2.1.3 The corrective justice rationale

The ‘corrective justice’ rationale, also referred to as the ‘remedial imperative’, justifies the
exclusion of unconstitutionally obtained evidence on the basis that the police should not
benefit from the wrongfulness of their actions – the constitutional violations they have
committed when collecting evidence.19 Unconstitutionally obtained evidence under this
rationale is therefore excluded on the basis of restoring the status quo before the rights
were violated. This is seen as compensating the accused in that evidence collected
through the violation of their rights is not used against them. Penney argues that
excluding evidence under this rationale makes it more likely that factually guilty defendants
will go unpunished.20 The justification for this rationale is that the condonation and
deterrence rationales are inadequate. Courts must go further to vindicate and uphold the
rights of suspects by excluding unconstitutionally obtained evidence.

13 Penney (2003) at 110.

14 Wells (2013) at 30.
15 Wells (2013) at 31.
16 Ibid. See also J Wells (2013) The admissibility of real evidence in the light of the Constitution of the Republic of South
Africa 1996, University of South Africa, at 17–32. Dressler and Michaels succinctly capture the essence of this view:
‘The exclusionary rule is meant to deter unconstitutional police conduct by promoting professionalism within the
ranks, specifically by creating an incentive for police departments to hire individuals sensitive to civil liberties, to
better train officers in the proper use of force, to keep officers updated on constitutional law, and to develop
internal guidelines that reduce the likelihood of unreasonable arrests and searches’. J Dressler and AS Michaels
Understanding Criminal Procedure 4 ed (2006) at 378.
17 Wells (2013) at 20.
18 Ally, D (2012) Determining the effect (the social costs) of exclusion under the South African exclusionary rule: should
factual guilt tilt the scales in favour of the admission of unconstitutionally obtained evidence, PER 15(5) at 476. See
also Wells (2013) at 20.
19 Penney (2003), Wells (2013).
20 Penney (2003) at 112.
178 THE LAW OF EVIDENCE IN SOUTH

16.2.2 Some critiques of the rationales for excluding unconstitutionally

obtained evidence
Penney has argued that it is only the deterrence rationale that the courts should seek to
follow as the other rationales are superfluous. He contends in respect of the condonation
rationale, for instance, that excluding relevant evidence of guilt, even if it was obtained
unconstitutionally, is much more likely to bring the justice system into disrepute than
admitting such evidence would.21 He further argues that admitting unconstitutionally
obtained evidence does not condone police misconduct but merely recognises that the
violation cannot be undone.22 It also recognises that the exclusion of such evidence will not
prevent future misconduct by the police and that it would serve no purpose to suppress
reliable evidence of guilt.23
With regards to the corrective justice rationale, Penney argues that excluding
evidence simply to compensate for the breaches suffered by the accused
disproportionately compensates them for the wrongs that were committed against them.
The benefits of exclusion (which accrue to the accused) greatly outweigh their social
costs (the violations by law enforcement agencies when collecting evidence).24 According
to him, this rationale could be rescued only in rare cases where the rights violations
against the accused are extreme and ‘the consequences of a conviction are unusually
benign’.25
There are also disagreements among scholars as to whether the exclusion of evidence
actually assists in changing police behaviour and achieving the deterrence objectives.26
Some scholars believe it does not, some argue that it should surely influence both
individual and institutional behaviour as convictions are lost or set aside.27 They argue
that individual performance of police officers is affected when they lose cases based on
their misconduct. Institutional performance is also affected, leading to individual
behavioural change and institutional measures being put in place to comply with the
legal requirements.28
Penney observes that excluding evidence on the basis of the deterrence rationale is
hard to assess for effectiveness, but empirical studies conducted in the US show that the
introduction of the exclusionary rule in Mapp v Ohio (367 U.S. 643 (1961)) led to an
increase in warrant searches as opposed to warrantless searches.29 Surveys
conducted in the US with police officers and other justice officials have also shown that
exclusion does impact on their behaviour as it affects their individual performance and
their career advancement.30 No studies have been conducted in South Africa to assess the
effectiveness of exclusion on police conduct. However, jurisprudence from the Supreme
Court of Appeal shows that many convictions are being set aside on appeal. There are
also many decisions from the High Courts which have applied the section 35(5)
remedies.

21 Penney (2003) at 111.

22 Ibid.
23 Ibid.
24 At 113 Penney argues strongly that the compensation for victims of investigatory abuses should rather be monetary
damages or other appropriate remedies than the exclusion of evidence.
25 Penney (2003) at 112.
26 See discussion of this in Wells supra, n 23.
27 Wells (2013) at 23.
28 Wells (2013) at 23.
29 Penney (2003) at 115.
30 At 115.
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 179

16.2.3 Rationales used by the courts to exclude unconstitutionally

obtained evidence
South African courts have tended to favour all these rationales (condonation, deterrence
and corrective justice) in justifying their exclusion of unconstitutionally obtained
evidence.31 This trend is similar to that adopted by the Canadian courts,32 whereas the US
courts tend exclusively to favour the deterrence rationale.33 In S v Hena and Another34 the
court justified its decision on the condonation rationale. The court reasoned that when
judicial officers take the oath of office, they swear or affirm to uphold and protect the
Constitution and the rights entrenched in it, and to administer justice without fear, favour
or prejudice, and Judges should therefore guard against condoning constitutional abuses.
In S v Pillay and Others35 and S v Mthembu36 exclusion was premised on the deterrence
rationale. In S v Pillay, the accused appellant contested the admission of evidence which
was obtained through illegal monitoring of telephone conversations and the court held that
including evidence so obtained will encourage the police to violate the rights of accused
persons. In Mthembu,37 the SCA referred violations by police officers to their supervisor
for possible disciplinary, administrative or criminal action.38 While this does not happen
in all the cases where violations occur, other judges could follow suit and refer such cases
of misconduct by police officers and impact on deterrence.

16.2.4 Implications of excluding unconstitutionally obtained evidence

As much as there are benefits to the accused persons and the long-term objectives of the
constitutional order for excluding unconstitutionally obtained evidence, there are also social
costs.39 The obvious social cost is that factually guilty defendants often go unpunished for
their crimes when such evidence is excluded or convictions are overturned following an
appeal or a review.
Arguably, society would not condone the non-accountability of anyone for the offences
they have committed, but for the illegal manner in which the relevant evidence against such
a person was collected. This therefore has implications for the administration of justice in
that the criminal justice system ends up failing to hold criminal suspects and accused
persons accountable for their criminal conduct.
This could affect public confidence where a large number of cases are lost due to the
exclusion of tainted evidence. It could result in communities taking the law into their own
hands, under some circumstances, where this phenomenon of exclusion is prevalent or, in
some sensitive cases, where society is deeply offended. It could also send a wrong message
to the victims of crime, that their rights and protections by the State are subordinate to
those of accused persons who are factually guilty but are set free because legal guilt
cannot be sustained – as evidence is excluded. And, of course, a factually guilty criminal
is released

31 Wells (2013) at 17–34.

32 Penney (2003) at 110.
33 Wells (2013) at 197.
34 S v Hena and Another 2006 (2) SACR 33 (SE) at 41–42. In this case evidence showed that policing functions had been
assumed by street committees who were found to have taken the law into their own hands without any political or
administrative supervision. The court found that this undermined the Constitution and the integrity of the criminal
justice system and held that the evidence that had been acquired should be excluded. See also Wells (2013) at 32.
35 S v Pillay and Others 2004 (2) SACR 419 (SCA) cited in Wells (2013) at 21.
36 2008 (2) SACR 407 (SCA).
37 2008 (2) SACR 407 (SCA) at para 39.
38 Wells (2013) at 23.
39 See Ally, D (2012) supra for more discussion on these social costs.
180 THE LAW OF EVIDENCE IN SOUTH

into society, which is thereby unprotected against further criminal action by the acquitted
criminal.
As we examine section 35 (5) of the Constitution, we highlight the balance that this
section seeks to strike between the competing interests of accused persons on the one hand,
and society at large and victims of crime on the other.

16.3 Overview of section 35 of the Constitution

In criminal cases, evidence must be excluded in terms of section 35(5) of the Constitution
if it was obtained in a manner that violates any right in the Bill of Rights and if the
admission of that evidence would render the trial unfair or would otherwise be
detrimental to the administration of justice. From the wording of section 35(5) it is
apparent that a causal relationship is envisaged between a Bill of Rights violation and the
procurement of evidence. S v Tandwa confirms that there needs to be a ‘causal connection’
between a rights violation and the subsequent procurement of incriminating evidence
from the accused.40 In other words, it must be shown that the evidence was obtained in
violation of a right protected in the Bill of Rights.41 Where this link is not established, the
accused may not be entitled to the exclusionary remedy.42
There are a number of pre-trial and trial rights of accused persons in the Bill of Rights.
The more important ones in relation to section 35(5) are those that may, when violated,
lead to the state unconstitutionally acquiring evidence from or against an accused person.
These are the right to remain silent (section 35(1)(a)); the right to remain silent and not
testify in the proceedings (s 35(3)(h)); the right not to be compelled to give self-
incriminating evidence such as a confession or admission (section 35(1)(c) and 35(3)(j))
and the right to legal representation (s 35(3)(f) and (g)). The latter is of great importance
as legal representatives are expected to be better placed to advise accused persons in
their interaction with the criminal justice system.
Some of these rights are relatively old compared to our current constitutional
dispensation. They have been part of statutory and common law, in one form or the other,
for many decades. The rights to remain silent, legal representation and privilege against
self-incrimination were part of common law applicable in South Africa prior to the present
constitutional dispensation. However, due to apartheid and racial discrimination, these
rights were not consistently upheld for all. In some instances where these rights were
violated and evidence was procured, the courts would exercise their common law
discretion to exclude such evidence.43 However, the courts did not have a duty and were
not obliged to exclude such impugned evidence as provided for now in section 35(5).
There are other statutory provisions which are linked to certain constitutional rights
which may be infringed in collecting evidence, for example the right to privacy. For instance,
the police use statutory provisions to intercept communications and to search for and seize
evidence and so an infringement of these statutory provisions means that a right in the
Bill of Rights has been infringed, rendering the evidence liable to exclusion. Some
fundamental

40 2008 (1) SACR 613 (SCA).

41 At para 117. See also Wells (2013) at 46–49.
42 Wells (2013) at 46. Wells argues that our courts have not been consistent in interpreting the phrase ‘obtained in a
manner’, which establishes the causal connection, in section 35(5). Some have adopted a direct causal connection
(using a ‘but for’ test), as in S v Orrie and Another 2005 (1) SACR 63 (C) and others an indirect/temporal connection –
where a violation is followed by the discovery of evidence as in S v Pillay and Others 2004 (2) SACR 419 (SCA), S v
Soci 1998 (2) SACR 275 (E) and S v Ntlantsi [2007] 4 All SA 941 (C).
43 See De Vos (2011). See also Wells (2013) at 4.
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 181

rights in the Bill of Rights, such as the right to privacy and the right to freedom of
movement, are already limited by a law of general application, particularly the search
and seizure and arrest provisions in the Criminal Procedure Act 51 of 1977 (CPA). For
instance, an arrested person has already had their right to freedom of movement curtailed.
A person whose house has been searched has already had their right to privacy infringed.
Section 35 rights therefore serve to protect persons whose other fundamental rights might
already have been infringed, albeit lawfully, through laws of general application. Such
rights provided for by section 35 of the Constitution could arguably be waived only by
the accused, for an example, where she or he elects to testify, make a confession or an
admission, or plead guilty.
Section 35(5) provides that evidence collected in violation of any right in the Bill of
Rights (sections 7 to 39 of the Constitution) should be excluded if its admission would
render the trial unfair or otherwise be detrimental to the administration of justice.
However, where such a right is limited by a law of general application (statutory or
common law), as per section 36 of the Constitution, and all the legal procedures were
followed to limit such a right legitimately, such an infringement would not constitute a
violation as envisaged in section 35(5), unless a statute or legal provision used or
applicable common law rule limiting the right is itself unconstitutional. For instance,
search and seizure provisions in the CPA, which is a law of general application, permit the
limitation of the right to privacy. Where the police follow all the legal prescripts in
gathering evidence against the accused as prescribed by the CPA, that search would be
legal.
This does not mean, however, that a legal search and seizure operation does not infringe
on a person’s right to privacy. It does, albeit lawfully. However, where the police conduct an
unjustifiable and illegal search and seizure operation, this would constitute an
unconstitutional violation of the right to privacy (section 12) protected by the Bill of
Rights. The accused would then be able to seek the protection accorded by section 35(5).
Only after an unlawful constitutional infringement has been shown must the court
substantively consider whether admission of the evidence would render the trial unfair –
the first leg of the test – or whether admission would otherwise be detrimental to the
administration of justice – the second leg of the test.

16.4 The section 35(5) test for excluding

unconstitutionally obtained evidence
As stated above, once it has been established that the evidence was unconstitutionally
obtained,44 the court must next consider whether its admission would render the trial
unfair or whether admission would otherwise be detrimental to the administration of
justice. This appears to be an either/or test which does not require that both legs of the
enquiry be satisfied before tainted evidence is excluded. In other words, evidence could
be excluded based on the unfair trial grounds or on the integrity of the administration of
justice imperative. Although the two legs overlap, they are generally treated as separate
enquiries. Each step of the test has its own factors that need to be considered.
Schwikkard and Van der Merwe45 point out that to establish whether the admission of
unconstitutionally obtained evidence would have one of the undesirable consequences

44 That is, a causal link has been established. This may be done by way of a trialwithinatrial or by the State admitting that
the evidence in dispute was unconstitutionally obtained.
45 PJ Schwikkard and SE van der Merwe Principles of Evidence 3 ed (2009) at 215.
182 THE LAW OF EVIDENCE IN SOUTH

indicated above, a court must make a value judgment46 that takes all the facts of a specific
case into account. This includes fair trial principles and considerations of public policy.
Cachalia JA, in S v Mthembu,47 explained what is meant by the term public policy in this
context:
[Public policy] … is concerned not only to ensure that the guilty are held
accountable; it is also concerned with the propriety of the conduct of
investigating and prosecutorial agencies in securing evidence against
criminal suspects. It involves considering the nature of the violation and the
impact that evidence obtained as a result thereof will have, not only on a
particular case, but also on the integrity of the administration of justice in the
long term. … Public policy therefore sets itself firmly against admitting
evidence obtained in deliberate or flagrant violation of the Constitution. If on
the other hand the conduct of the police is reasonable and justifiable, the
evidence is less likely to be excluded – even if obtained through an
infringement of the Constitution.
As discussed below, section 35(5) has been interpreted by our courts in a manner that
attempts to strike a balance between the competing due process and crime control values.
This is an involved process of public policy considerations and an analysis of a number of
factors in assessing the admissibility of unconstitutionally obtained evidence. As per
Cachalia JA above, public policy is not only about holding accused persons accountable, but
it is also about upholding their due process rights throughout the criminal process. He
explains that in instances where police conduct in obtaining evidence improperly is
reasonable and justifiable, such evidence would more likely be admitted. However, to arrive
at such a determination, the courts must consider the nature of the violation and the impact
that the admission or exclusion of such evidence will have on the case and the administration
of justice.

16.4.1 First leg of the test: whether admission would render a trial unfair
The Court in S v Soci48 said that a court may examine the type of evidence that
was unconstitutionally obtained when considering whether a trial would be rendered
unfair if
such evidence were admitted. It may draw a distinction between evidence such as
admissions and confessions (testimonial evidence), and real evidence (physical evidence).49
If real evidence was obtained in a manner that unjustifiably violated a constitutional right,
it would not necessarily mean that such evidence should be automatically excluded – the
court would still need to consider whether its admission would render the trial unfair.
However, the admission of unconstitutionally obtained testimonial evidence (admissions
or confessions) will automatically render the trial unfair.50

46 See S v Tandwa and Others 2008 (1) SACR 613 (SCA) at para 116 discussed in 16.5.3 below. Also see in this regard S
v Lottering 1999 (12) BCLR 1478 (N) at 1483B; S v Pillay and Others 2004 (2) SACR 419 (SCA) at para 92; S v Nell
2009 (2) SACR 37 (CPD) at 42J–43B.
47 2008 (2) SACR 407 (SCA) at para 26.
48 1998 (2) SACR 275 (E) at 293.
49 In R v Stillman, the Supreme Court of Canada warned against distinguishing between real and testimonial evidence
and noted that real evidence could be bodily fluids or tissue, hair and teeth imprints. Instead Cory J said that it may be
more accurate to distinguish between evidence acquired through the accused’s participation (conscriptive or autoptic
evidence) and evidence gathered without the participation of an accused (non-conscriptive evidence). R v Stillman
1997 42 CRR (2d) 189 (SCC); 1997 1 SCR 607.
50 S v Naidoo and Another 1998 (1) SACR 479 (N).
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 183

In determining whether the admission of evidence would deprive the accused of his or
her constitutional right to a fair trial, the court must consider the facts of each case and
take into account factors such as the nature and extent of the constitutional breach, the
presence or absence of prejudice to the accused, the interest of society, and public
policy.51 In this context, the right to a fair trial cannot be interpreted in the abstract, but
must be applied to the particular circumstances of the case. The court should look at each
case on its own merits and look at the way in which the evidence is question was
procured.
The section 35(3) right to a fair trial also encompasses some pre-trial rights contained
in s 35(1). The exclusionary rule in section 35(5) flows directly from the specific rights of
accused (and arrested and detained) persons, which are pre-trial rights, and the right to a
fair trial. In S v Zuma and Others,52 the court stated that the right to a fair trial ‘embraces a
concept of substantive fairness’ and that it is up to the criminal courts ‘to give content’ to
the basic fairness and justice that underlie a fair trial.
In S v Dzukuda and Others; S v Thilo,53 the Constitutional Court gave an exposition of the
general right to a fair trial. It stated that the right to a fair trial is a comprehensive and
integrated right and that the content thereof will be established on a case-by-case basis.
Although it is possible to specify certain inherent elements (see section 35(3) of the
Constitution), it may also contain certain unspecified elements. The Court explained that:
An important aim of the right to a fair criminal trial is to ensure adequately
that innocent people are not wrongly convicted, because of the adverse effects
which a wrong conviction has on the liberty, and dignity (and possible other)
interests of the accused. There are, however, other elements of the right to a
fair trial such as, for example, the presumption of innocence, the right to free
legal representation in given circumstances, a trial in public which is not
unreasonably delayed, which cannot be explained exclusively on the basis of
averting a wrong conviction, but which arise primarily from considerations of
dignity and equality.54
In S v Tandwa and Others,55 the Supreme Court of Appeal said that when considering the
exclusion of unconstitutionally obtained evidence, the relevant factors for purposes of
determining trial fairness would include:
[T]he severity of the rights violation and the degree of prejudice, weighed
against the public policy interest in bringing criminals to book. Rights
violations are severe when they stem from the deliberate conduct of the
police or are flagrant in nature … There is a high degree of prejudice when
there is close causal connection between the rights violation and the
subsequent self-incriminating acts of the accused … Rights violations are not
severe, and the resulting trial not unfair, if the police conduct was
objectively reasonable and neither deliberate nor flagrant.
The reasoning expressed in Tandwa is similar to that expressed in the Canadian case
R v Collins,56 where Lamer J summarised the factors for determining trial fairness as
follows:

51 See Schwikkard and Van der Merwe 3 ed (2009) at 227.

52 1995 (1) SACR 568 (CC) at para 16.
53 2000 (2) SACR 443 (CC).
54 At para 11.
55 2008 (1) SACR 613 (SCA) at para 117.
56 (1987) 1 SCR 265 at para 35.
184 THE LAW OF EVIDENCE IN SOUTH

As Le Dain J. wrote in Therens, at 652:

‘The relative seriousness of the constitutional violation has been assessed
in the light of whether it was committed in good faith, or was inadvertent or
of a merely technical nature, or whether it was deliberate, wilful or flagrant.
Another relevant consideration is whether the action which constituted
the constitutional violation was motivated by urgency or necessity to
prevent the loss or destruction of the evidence.’
I should add that the availability of other investigatory techniques and the fact
that the evidence could have been obtained without the violation of the
Charter tend to render the Charter violation more serious. We are considering
the actual conduct of the authorities and the evidence must not be admitted on
the basis that they could have proceeded otherwise and obtained the evidence
properly. In fact, their failure to proceed properly when that option was open
to them tends to indicate a blatant disregard for the Charter, which is a factor
supporting the exclusion of the evidence.
This jurisprudence seems to indicate that the aim of the right to a fair trial is to ensure
that, among others, no one is wrongfully convicted. Evidence obtained through a
deliberate and flagrant violation of constitutional rights would impact negatively on
public confidence in the criminal justice system and would point towards exclusion.
However, evidence collected through inadvertent or minor rights violation would,
consequently, hardly be excluded as it might not undermine public confidence. For
instance, the need to prevent the disappearance of evidence by law enforcement officers
may provide for extenuating circumstances and attenuate the seriousness of a
violation.57 In instances where police officers make errors in good faith, the court may be
persuaded not to distance itself from their unfortunate conduct. However, where they are
grossly negligent or are wilfully blind, such conduct cannot be seen as good faith.
The extent to which a rights violation actually undermines the interests protected by
the right violated is also an important consideration. The impact of a particular violation
may only be technical or fleeting, but it can also be ‘profoundly intrusive’.58 It is important
to look at the interests engaged by the infringed right and to consider the degree to
which the violation had an impact on those interests.59 Ultimately, however, as Kriegler J
stated in Key v Attorney-General, Cape Provincial Division and Another:
In any democratic criminal justice system there is a tension between, on the
one hand, the public interest in bringing criminals to book and, on the other, the
equally great public interest in ensuring that justice is manifestly done to all,
even those suspected of conduct which would put them beyond the pale. To be
sure, a prominent feature of that tension is the universal and unceasing
endeavour by international human rights bodies, enlightened legislatures and
courts to prevent or curtail excessive zeal by state agencies in the prevention,
investigation or prosecution of crime. … But none of that means sympathy for
crime and its perpetrators. Nor does it mean a predilection for technical
niceties and ingenious legal stratagems. What the Constitution demands is
that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin,
fairness is an issue which has to be decided upon the facts

57 See R v Grant (2009) SCC 32 at para 75.

58 Compare R v Grant (2009) SCC 32 at para 76.
59 R v Grant (2009) SCC 32 at para 77.
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 185

of each case, and the trial judge is the person best placed to take that decision.
… At times fairness might require that evidence unconstitutionally obtained be
excluded. But there will also be times when fairness will require that evidence,
albeit obtained unconstitutionally, nevertheless be admitted.60
It is important to emphasise that regarding the first leg of the test for exclusion, there are
many factors that influence the courts in determining whether unconstitutionally obtained
evidence would render the trial unfair. Many of these factors would be engaged
separately or simultaneously in the assessment process based on the facts of a particular
case under consideration, and could include the nature and extent of a constitutional
violation when the evidence was collected, the presence or absence of prejudice to the
accused, the interests of society and public policy considerations.

DISCUSSION Section 35(5): should it be one test or two?

16.1 Some commentators have suggested that there is essentially only one test
in section
35(5), namely whether the admission of evidence would be detrimental
to the administration of justice. They argue that the test of whether the
admission of the evidence would render the trial unfair is just a specific
aspect of the wider enquiry into whether the admission would be
detrimental to the administration of justice. This is because any unfair
trial would automatically be detrimental to the administration of justice.
However, because section 35(5) has created two tests, these should be
kept separate as the rules applicable to each test may differ.61
What, then, is the better view? Is the criterion of whether the trial will
be rendered unfair by the admission of unconstitutionally obtained
evidence effectively merely a subcategory of the second criterion of
undermining the administration of justice, or is it conceptually better to
separate the two tests? For example, if a person is arrested and, without
being threatened or influenced in any way, voluntarily confesses his or her
crime, this would speed up the trial and ensure that justice is swiftly
done. In these circumstances, the fact that this person was not informed
of his or her section 35(1) right to remain silent would clearly not render
the trial unfair. However, the admission of the arrested person’s
statement, without informing the person of his or her section 35 rights,
could encourage the police to continue with the practice of not informing
arrested persons of their rights to ensure quick and easy convictions.
This practice would undermine adherence to the Constitution and would
therefore be detrimental to the administration of justice.
Arguably, therefore, there are circumstances where the procedural
fairness of the trial would not be affected by the failure to comply with
the Constitution but the administration of justice would nevertheless be
detrimentally affected. In essence, the unfair trial test is a fact-based
enquiry and the second leg of the test – the detrimental to the
administration of justice test – is a policy-based enquiry.
Is there merit in persisting with the two-test approach or should a single
‘detrimental to the administration of justice’ test, as proposed by
Steytler, be preferred?

60 1996 (2) SACR 113 (CC) at para 13.

61 For more details on this viewpoint, see N Steytler Constitutional Criminal Procedure (1998) at 36.
186 THE LAW OF EVIDENCE IN SOUTH

16.4.2 Second leg of the test: whether admission would be detrimental to

the administration of justice
Generally one proceeds to the second leg of the test where the court finds that the admission
of the evidence would not render the trial unfair. It has been argued that unconstitutionally
obtained evidence may in some instances not lead to an unfair trial, but where it does such
evidence would also automatically be detrimental to the administration of justice. In S v
Tandwa, Cameron JA stated that
… admitting impugned evidence could damage the administration of justice in
ways that would leave the fairness of the trial intact: but where admitting the
evidence renders the trial itself unfair, the administration of justice is always
damaged … evidence must be excluded in all cases where its admission is
detrimental to the administration of justice.62
A close reading of this dictum by Cameron JA suggests that there might be no need to
carry on to the second leg of the inquiry once a court has determined that tainted
evidence would lead to an unfair trial, as that evidence automatically damages the
administration of justice. However, in instances where the court determines that such
evidence would not render the trial unfair, the court must then apply itself to the second
leg of the inquiry and if the court is satisfied that its admission would be detrimental to
the administration of justice it must be excluded. The courts consider several factors in
determining whether the admission of evidence would be detrimental to the
administration of justice. These factors can be summarised as follows: the public interest
of society to see those who commit crime held to account, public opinion or the public
mood, the seriousness of the rights violation when the state collected such evidence, and
the seriousness of the offence committed by the accused.63 In S v Mphala and Another,64
Cloete J said that:
So far as the administration of justice is concerned, there must be a balance
between, on the one hand, respect (particularly by law enforcement agencies)
for the Bill of Rights and, on the other, respect (particularly by the man on the
street) for the judicial process. Overemphasis of the former would lead to
acquittals on what would be perceived by the public as technicalities, whilst
overemphasis of the latter would lead at best to a dilution of the Bill of Rights
and at worst to its provisions being negated.
This approach addresses the issue of creating a balance between due process rights and
crime control imperatives. Where a serious offence was committed and evidence is
technically excluded by the courts, this offends the public interest and brings the
administration of justice into disrepute, especially when the public and victims of crime feel
that the law is protecting the factually guilty. Instructive perhaps are comments by
Combrinck J, in S v Ngcobo,65 about the exclusion of incriminating evidence:

62 S v Tandwa 2008 (1) SACR 613 (SCA) at para 116.

63 See D Ally (2012) at 482–501 on the discussion of these factors. Ally notes that the case of Pillay and others v S 2004
(2) BCLR 158 (SCA) introduced the two-leg admissibility assessment and the second leg focused on two sets of
factors. These are factors relating to the seriousness of a constitutional infringement and the effect that exclusion of
unconstitutionally obtained evidence may or would have on the integrity of the administration of justice.
64 1998 (1) SACR 654 (W) at 657G–H.
65 1998 JDR 0747 (N) at 11, emphasis added.
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 187

At best of times but particularly in the current state of endemic violent crime
in all parts of our country it is unacceptable to the public that such evidence be
excluded. Indeed the reaction is one of shock, fury and outrage when a
criminal is freed because of the exclusion of such evidence.
Equally, it offends the administration of justice when the state procures evidence through
serious infringements of the accused’s rights. The Court, in S v Tandwa,66 remarked that:
[I]n this country’s struggle to maintain law and order against the ferocious
onslaught of violent crime and corruption, what differentiates those
committed to the administration of justice from those who would subvert it is
the commitment of the former to moral ends and moral means. We can win the
struggle for a just order only through means that have moral authority. We
forfeit that authority if we condone coercion and violence and other corrupt
means in sustaining order. Section 35(5) is designed to protect individuals
from police methods that offend basic principles of human rights.
The courts therefore have a very difficult balancing act in ensuring that the criminal justice
system is not seen as protecting those who commit crime while also ensuring that those
who are charged with investigating and prosecuting crime on behalf of society do not
abuse their powers. In S v Tandwa, the Court said that central to the second leg of the test
for exclusion is the public interest. The public interest is what society desires or wants
which, in this context, is the combatting of crime and ensuring that those who commit
crime are brought to book.67 It is however in the interest of society that police officers
respect the law and constitutional rights of accused persons. Holding accused persons to
account cannot be done at all costs, even where it damages the administration of justice
if they are not.68
In S v Mankwanyane and Another,69 the court reasoned that the reason for establishing
the new constitutional order is to protect the rights of all including ‘social outcasts’.70
Chaskalson P said that ‘it is only if there is a willingness to protect the worst and the
weakest amongst us, that all of us can be secure that our own rights will be protected’.71 It
is therefore also a public interest goal to ensure that law enforcement agencies comply with
the prescripts of the law. This is therefore a difficult balancing exercise.
Public opinion is also a major consideration in the second leg of the test.72 With
regards to public opinion, Chaskalson P cautioned in S v Makwanyane and Another73 that
in interpreting the Bill of Rights, the courts should not follow public opinion blindly or
rigidly or, as Ally puts it, become ‘slaves to it’.74 This is particularly true in a
cosmopolitan society with polarised views. In Makwanyane, the Constitutional Court ruled
that the death sentence was unconstitutional despite the assumption that there was
overwhelming public support for it.75

66 2008 (1) SACR 613 (SCA) at 649F–G.

67 2008 (1) SACR 613 (SCA).
68 This approach was cited with approval by the Supreme Court of Appeal in S v Tandwa and Others 2008 (1) SACR 613
(SCA) at para 118 and in S v Pillay and Others 2004 (2) SACR 419 (SCA) at 447I–J.
69 1995 (3) SA 391 (CC).
70 At para 88.
71 At para 88.
72 See D Ally (2012) for a detailed discussion on the second leg of this test, particularly on public opinion considerations.
73 1995 (3) SA 391 (CC).
74 D Ally (2012) at 483.
75 1995 (3) SA 391 (CC) at paras 87–88.
188 THE LAW OF EVIDENCE IN SOUTH

However, with regards to section 35(5), the courts have said that public opinion
constitutes an important element of the inquiry.76 Many judgments suggest is that although
public opinion or mood is an important consideration, the courts must not be
overwhelmed by it and lose sight of their duty to interpret the law and find a balance
between competing interests. In S v Melani,77 Froneman J argued that due to the perceived
high levels of crime in South Africa, ‘a public opinion would probably show that a majority
of our population would … be quite content if the courts allow evidence at a criminal trial,
even if it was unconstitutionally obtained’. He cautioned that while the courts should be
accountable to the public, they should exercise some restraint and ‘not seek public
popularity’. In S v Nombewu,78 Erasmus J said that some value must be given to public
opinion. He said that the role of the court in that regard should be educative. Where
evidence is excluded for rights violations, the courts have a duty to educate citizens that
the Constitution does not seek to protect criminals but to protect all citizens from official
abuse.
Further judgments have contributed to the developing jurisprudence in this area.
Elements that are possibly detrimental to the administration of justice include, in S v Naidoo
and Another,79 evidence obtained by the State as a result of a deliberate and conscious
violation of the constitutional rights of an accused person – while in S v Gumede and Others,80
the Court held that the test must not consider whether the manner of the procurement of
the evidence is detrimental to the administration of justice but rather whether the
admission of the unconstitutionally obtained evidence will be detrimental to the
administration of justice.
South Africa’s jurisprudence and literature has drawn lessons from the Canadian courts
in interpreting section 35(5) due to its similarities with the Canadian Charter,
particularly section 24(2).81 The Canadian courts have suggested various factors that
should be considered when deciding on the integrity of the administration of justice. In R v
Grant, one of the main questions was whether the ‘truthseeking function of the criminal
trial process would be better served by admission of the evidence, or by its exclusion’.82
The Supreme Court of Canada said that the court should, therefore, consider the negative
impact on the administration of justice if the evidence is admitted as well as the impact of
failing to admit the evidence.83
Another important factor to consider under the second leg of the test is the
seriousness of the offence. Sachs J, in S v Coetzee and Others, 84 pointed out that:

76 Pillay and Others v S 2004 (2) BCLR 158 (SCA) at para 126.
77 1996 (1) SACR 335 (E) at 352D–E.
78 1996 (2) SACR 396 (E) at para 648a–c. See also S v Soci 1998 (2) SACR 275 (E).
79 1998 (1) SACR 479 (N).
80 1998 (5) BCLR 530 (D).
81 See D Ally (2012) at 479.
82 R v Grant (2009) SCC 32 at para 79.
83 The Court in R v Grant (2009) SCC 32 at para 82 noted that the concern for truthseeking is only one of the considerations
and the view that reliable evidence is admissible regardless of how it was obtained is inconsistent with their
Charter’s affirmation of rights. Such a notion is also inconsistent with the wording of their exclusionary rule that
requires an enquiry into all the circumstances and not just into the reliability of the evidence. The reliability of the
evidence remains, however, an important factor to consider. The Court notes at para 82: ‘The fact that evidence
obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits
must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the
integrity of the justice system”: Mann, at para 57, per Iacobucci J. The court must ask “whether the vindication of the
specific Charter violation through the exclusion of evidence exacts too great a toll on the truthseeking goal of the
criminal trial”. R v Kitaitchik (2002), 166 CCC (3d) 14 (Ont. CA) at para 47, per Doherty J.A.’
84 1997 (1) SACR 379 (CC) at para 220.
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 189

There is a paradox at the heart of all criminal procedure, in that the more
serious the crime and the greater the public interest in securing convictions
of the guilty, the more important the constitutional protections of the accused
become.
The Canadian courts have remarked, in this regard, that it is the longterm repute of the justice
system that is important, not the seriousness of the immediate crime being tried:
As pointed out in Burlingham, the goals furthered by section 24(2) ‘operate
independently of the type of crime for which the individual stands accused’
(para. 51) … The short-term public clamour for a conviction in a particular
case must not deafen the section 24(2) judge to the longer-term repute of the
administration of justice. Moreover, while the public has a heightened
interest in seeing a determination on the merits where the offence charged is
serious, it also has a vital interest in having a justice system that is above
reproach, particularly where the penal stakes for the accused are high.85
It is important to note that all the factors that the courts take into account in determining
the second leg of the enquiry overlap. For instance, when considering the seriousness of
the offence, a court may also look at the public interest and public opinion and the impact
that the admission or exclusion will have on the administration of justice. What has,
however, been emphasised is the long-term repute of the criminal justice system, rather
than the short-term repute of losing a conviction in a particular case. This then points
towards both the condonation and the deterrence rationale objectives for excluding
evidence. The public may have an interest in seeing a case decided on its merits, but this
has to be balanced with the public’s interest in a criminal justice system that is beyond
reproach.
In assessing whether the admission would be detrimental to the administration of
justice, Canadian courts have employed the ‘shock the public’ test.86 This test asks what
will shock the public more; is it including the evidence and condoning an infringement of
the rights of the accused or excluding it and letting a factually guilty accused go free?

DISCUSSION What will shock the public more?

16.2 In deciding whether to admit or exclude unconstitutionally obtained
evidence, the Canadian courts ask the question: what will shock the
public more: admitting unconstitutionally obtained evidence and by
doing so condoning the unconstitutional conduct in obtaining the
evidence, or excluding the evidence and by doing so possibly allowing an
alleged criminal to go free? Would this test work as a test for determining
whether admitting unconstitutionally obtained evidence would be
detrimental to the administration of justice for the purposes of section
35(5) of the Constitution?

16.5 Procedural issues

The two-legged test above mainly addresses the substantive aspects of the exclusionary
rule. However, there are a number of practical procedural issues that have emerged with
the enactment of the exclusionary rule. These procedural aspects, or what have been
referred to as the threshold requirements, include issues such as: who bears the onus of
proof? Does

85 R v Grant (2009) SCC 32 at para 84.

86 R v Campbell [1999] 1 SCR 565.
190 THE LAW OF EVIDENCE IN SOUTH

the accused have standing to challenge the admission of evidence that was collected as result
of a violation of a third party’s constitutional rights? Can suspects claim section 35(5)
protections? When, during the criminal process, and how can the accused challenge the
admissibility of evidence?

16.5.1 Section 35(5): onus of proof

The question of who bears the onus of proof when the admissibility of evidence is challenged
has been subject to debate by courts and scholars alike. The question is: who bears the onus
of proving that there was indeed a violation of the constitutional rights during the
procurement of the evidence and that the reception of the evidence will render the trial
unfair or be detrimental to the administration of justice? Section 35(5) of the Constitution
does not say who should bear this onus of proof and our courts have taken contradictory
approaches when determining where the onus of proof lies. One approach is that the
accused should prove the violation of his or her constitutional rights. The other approach is
that the prosecution must prove that the evidence was not collected through a violation of
rights. A third position is that the accused needs to prove a violation of his or her rights,
whereafter the prosecution should prove that admission will not lead to an unfair trial
nor be detrimental to the administration of justice.
In S v Gumede and Others87 and Director of Public Prosecutions, Transvaal v Viljoen,88
the courts held that the onus of proof rests with the party wishing to exclude the evidence
on constitutional grounds, while in S v Mfene and Another,89 the courts held that once an
accused is able to prove the evidence was unconstitutionally obtained, the onus is then on
the State to prove that this does not render the evidence inadmissible. According to the
latter approach the accused must still prove that the evidence was unconstitutionally
obtained. S v Mgcina,90 on the other hand, held that held that the prosecution bears the onus
of proving that the evidence had not been obtained unconstitutionally.
In Canada, it is the accused that bears the onus of proving, on a balance of probabilities,
that his or her constitutional rights were violated in the procurement of evidence91 and
our courts, in S v Gumede and Others92 and DPP, Transvaal v Viljoen,93 adopted this
Canadian approach.94 However, South African scholars tend to favour the S v Mgcina
approach that the State should, upon being challenged by the accused that his or her
rights were violated in the collection of evidence, prove beyond a reasonable doubt that
the evidence was collected lawfully.95
Like many other issues regarding the interpretation of section 35(5), this issue of the
onus of proof has not been settled by the Constitutional Court. What is also not clear is exactly
what needs to be proved: is it that the constitutional rights were violated (where the
accused bears the onus) or not violated (where the State bears the onus)? Does the onus
carry further to proving that although rights were violated, the admission of evidence
would not lead to an unfair trial or be detrimental to the administration of justice?

87 1998 (5) BCLR 530 (D).

88 2005 (1) SACR 505 (SCA).
89 1998 (9) BCLR 1157 (N).
90 2007 (1) SACR 82 (T).
91 See Ally D (2010) Constitutional exclusion under s 35(5) of the Constitution: should an accused bear a ‘threshold burden’
of proving that his or her constitutional right has been infringed? SACJ 23(1) 22 at 23. See also Wells (2013) at 37.
92 1998 (5) BCLR 530 (D).
93 2005 (1) SACR 505 (SCA).
94 Which is attributed to R v Collins.
95 See Ally (2010), Wells (2013).
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 191

In the case of S v Soci,96 it was pointed out that there is no onus on the state to
disprove an alleged violation of an accused’s rights under the Constitution. The defence
must allege that an infringement occurred but need not prove that there was indeed an
infringement. The defence must also allege that such infringement calls for the exclusion
of the evidence obtained as a result of the infringement. During the trial-within-a-trial
purely factual matters must be distinguished from matters of judgment and value. The
accused must get the benefit of the doubt in factual matters that the State failed to prove
beyond reasonable doubt. Once the factual findings have been made and it is indeed
concluded that there was a breach of a constitutional right, the court must exercise its
discretion and make a value judgment on whether the admission of the evidence will be
detrimental to the administration of justice or bring it into disrepute.
In S v Gumede and Others,97 the court held that the onus of proof rests on the party
wishing to exclude the evidence on constitutional grounds. On the other hand, in S v Mfene
and Another98 the court held that once the accused has proved that the evidence was
unconstitutionally obtained the onus is then on the State to prove that the admission of the
evidence will not render the trial unfair and that the evidence should not be declared as
inadmissible.

16.5.2 Section 35(5): locus standi

What happens if the rights of a third party, but not those of the accused, were violated in
collecting evidence? Can the accused challenge the admission of such evidence even though
it did not violate his or her rights, but those of somebody else? This question arises
because there are instances where the rights of a third person, other than the accused,
are violated when collecting evidence and the incriminating evidence is then produced
against the accused. Does section 35(5) protect an accused when the violation of third
party constitutional rights leads to the discovery of evidence against him or her? In S v
Mthembu,99 the court held that evidence procured in violation of the rights of a third
party may be rejected in circumstances that warrants its exclusion. It may be that evidence
obtained from a third party does not lead to an unfair trial against the accused (as it is not
his or her rights which were violated), but it might be excluded based on the damage its
admission would have on the administration of justice.

DISCUSSION Evidence obtained in violation of someone other than the

16.3 accused’s rights
How should the courts deal with a situation where someone other than
the accused’s rights were violated in obtaining certain evidence? Can an
accused argue for exclusion even where another person’s rights were
violated in the obtaining of the evidence?
In S v Mthembu,100 evidence against an accused had been illegally
obtained, through torture, from a third party and had been used against
the accused. At no point were the accused’s rights directly violated.
However, the Supreme Court of Appeal explained that principle and
policy require the exclusion of improperly obtained evidence from any
person, not only from a particular accused.101 Evidence

96 1998 (2) SACR 275 (E).

97 1998 (5) BCLR 530 (D).
98 1998 (9) BCLR 1157 (N).
99 2008 (2) SACR 407 (SCA).
100 2008 (2) SACR 407 (SCA).
101 At para 27.
192 THE LAW OF EVIDENCE IN SOUTH

unconstitutionally obtained from a third party may, therefore, be

excluded where the circumstances of a particular case warrant it:
A plain reading of section 35(5) suggests that it requires the exclusion
of evidence improperly obtained from any person, not only from an
accused.102
It would be impossible to draw up a closed list of factors that will play a
role in determining whether evidence should be excluded because it was
obtained in violation of a third person’s rights. The decision in S v
Mthembu at least makes it clear that evidence obtained in a deliberate or
flagrant violation of the Constitution will be inadmissible and even more
so when such a violation coincides with police violence.

The question of standing also extends to the categories of persons who can claim
protection under section 35(3). Section 35(5) applies specifically to accused, arrested or
detained persons103 and so only these persons are clearly accommodated by section 35(5).
It is a group whose fundamental rights have already been curtailed through being
criminally charged (accused), arrested or detained. However, some courts have extended
this to criminal suspects as well.104
The police have a general power to investigate crime, including questioning suspects and
accused persons.105 Once the police consider someone to be a suspect, however, he or she
must be properly warned of his or her rights prior to being questioned. This includes
being warned of the right to remain silent, to legal representation and not to self-
incriminate.106 These rights should also be explained clearly.107 Where a person is not
warned of his or her status as a suspect and he or she makes an incriminating statement
which leads to criminal charges, he or she has recourse to the protection offered by section
35(5) of the Constitution, even if he or she made those statements before being arrested
or charged. In S v Orrie and Another,108 Bozalek J, citing S v Sebejan and Others,109 reasoned
that if criminal suspects are not accorded pre-trial rights:
investigating authorities could simply leave potentially accused persons in the
category of ‘suspect’, thus enabling themselves to collect evidential material
from the ‘unwary’, ‘unsilent’, ‘unrepresentative’ and unwarned suspect.110
Other court judgments have disputed that suspects are entitled to section 35(5)
protection since they are not accused, arrested or detained persons.111 However, the
there is a strong consensus in case law and literature that suspects are also protected by
section 35(5).

102 At para 27.

103 Wells (2013) at 44.
104 See Wells (2013) at 44 for more discussion on this.
105 See section 41 of the Criminal Procedure Act, 1977.
106 See section 35(3) of the Constitution.
107 S v Orrie and Another 2005 (1) SACR 63 (C).
108 2005 (1) SACR 63 (C).
109 1997 (1) SACR 626 (W) at 635G.
110 S v Orrie and Another 2005 (1) SACR 63 (C), where Bozalek J cites with approval the obiter dictum in S v Sebejan and
Others 1997 (8) BCLR 1806 (T).
111 The judgments that have not followed S v Sebejan and Others on this issue are S v Langa and Others 1998 (1) SACR 21
(T), S v Mthethwa 2004 (1) SACR 449 (E), S v Ngwenya and Others 1998 (2) SACR 503 (W), among others.
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 193

16.5.3 Section 35(5): trial-within-a-trial

An accused may challenge the admissibility of certain evidence prior to the trial (as happens
in the US and Canada).112 However, more often an accused will challenge the admissibility
of evidence during the trial. As soon as the accused alleges that particular rights were
violated in the collection of particular evidence, whether testimonial or real evidence, the
court would hold a trial-within-a-trial to determine the admissibility of such evidence, unless
the prosecution concedes to the accused allegations, in which case there would be no need
for a trial-within-a-trial process.
A trial within a trial is, as the name denotes, a process that is quite separate from the
main trial. The purpose is to determine the truth about how the evidence was collected. It
culminates in a ruling by the court on the admissibility of the disputed evidence. However,
this decision is interlocutory and is subject to review at the end of the trial. The
advantage of this process for the accused is that it allows him or her to testify freely
about the admissibility of evidence without being exposed to cross-examination about
issues of guilt.113 This means that the accused could testify during this process and elect
to remain silent during the main trial. During a trial-within-a-trial the parties are to lead
evidence limited to proving the admissibility or inadmissibility of the disputed evidence
only, and no evidence regarding the merits of the case should be led at this stage of the
proceedings.

16.6 A section 35(5) case study of S v Van Deventer and Another

16.6.1 Background
In S v Van Deventer and Another,114 Mr van Deventer and Mr van der Merwe were convicted
on 7 September 2003 in the regional court on the following:
1. 767 counts of fraud
2. one count of contravening section 58(c) of the ValueAdded Tax Act 89 of 1991
3. 10 counts of contravening section 58(d) of the ValueAdded Tax Act, 1991.

Mr van der Merwe was also convicted on one count of contravening section 58(a) of the
Value Added Tax Act, 1991. On 7 May 2004, Mr van Deventer was sentenced to four
years’ imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act 51 of
1977. Mr van der Merwe was sentenced to three years’ imprisonment in terms of section
276(1)(i) of the Criminal Procedure Act, 1977. Both men appealed against their
convictions and sentences.

16.6.2 Facts of the case

Mr van Deventer and Mr van der Merwe, the appellants, were allegedly adding VAT to the
invoices they issued for the entity, Markman Depot. Markman Depot was not registered for
VAT and VAT charged and paid to them was not handed over to SARS.
During the course of the investigation, a search warrant was issued in terms of the
Income Tax Act 58 of 1962. The appellants contended that the search warrant was invalid
in that it should have been issued in terms of the ValueAdded Tax Act, 1991 and also
because Mr van der Merwe and the entity Markman Depot were not mentioned in the
warrant as possible offenders.

11 Wells (2013).
2
11 Wells (2013) at 39.
3
11 2012 (2) SACR 263 (WCC).
4
194 THE LAW OF EVIDENCE IN SOUTH

On appeal, the Court held that the documents seized during the investigation, and in
terms of the warrant, were valuable evidence to establish the existence and extent of the
income tax evasion of Markman Depot and so fell within the ambit of the warrant. Further,
the relevant provisions of the Income Tax Act, 1962 were identical to the ValueAdded Tax
Act, 1991, which meant that the appellants could not argue that they were prejudiced in
any way.
It was further held that even if the search for, and seizure of, the documentation was
unlawful, the evidence would still be admissible in terms of section 35(5) of the Constitution.
This is because the admission of the evidence would not have violated the appellant’s right
to a fair trial and would not have been detrimental to the administration of justice.

16.6.3 The admissibility test to be applied in terms of section 35(5) of the

Constitution
The applicable legal test is contained in S v Tandwa and Others,115 where the Court held the
following:
The notable feature of the Constitution’s specific exclusionary provision is that
it does not provide for automatic exclusion of unconstitutionally obtained
evidence. Evidence must be excluded only if it (a) renders the trial unfair; or
(b) is otherwise detrimental to the administration of justice. This entails that
admitting impugned evidence could damage the administration of justice in
ways that would leave the fairness of the trial intact: but where admitting the
evidence renders the trial itself unfair, the administration of justice is always
damaged. Differently put, evidence must be excluded in all cases where its
admission is detrimental to the administration of justice, including the subset
of cases where it renders the trial unfair. The provision plainly envisages cases
where evidence should be excluded for broad public policy reasons beyond
fairness to the individual accused.
In determining whether the trial is rendered unfair, courts must take into account competing
social interests. The court’s discretion must be exercised by weighing the competing
concerns of society on the one hand to ensure that the guilty are brought to book against the
protection of entrenched human rights accorded to accused persons on the other hand.116
As we have pointed out, although admitting evidence that renders the trial unfair will
always be detrimental to the administration of justice, there may be cases when the trial will
not be rendered unfair, but admitting the impugned evidence will nevertheless damage the
administration of justice. Central in this enquiry is the public interest.117

16.6.4 Applying this test in terms of section 35(5) to the facts of this case
Factors present that supported the conclusion that the admission of the evidence would not
be unfair to the appellants or otherwise detrimental to the administration of justice
include:118
(i) The evidence had been obtained without any compelled participation by or
conscription of the appellants – the evidence had been discovered in the
course of the execution of a search warrant which itself was valid.

11 2008 (1) SACR 613 (SCA) at para 116.

5
11 See S v Tandwa and Others 2008 (1) SACR 613 (SCA) at para 117.
6
11 See S v Mphala and Another 1998 (1) SACR 654 (W) at 657G–H.
7
11 S v Van Deventer and Another 2012 (2) SACR 263 (WCC) at 265A–D.
8
 CHAPTER 16 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN 195

(ii) [T]he violation of the appellants’ rights was of a technical nature and not
flagrant at all – the warrant itself was lawful and authorised the SARS
investigators to enter the premises and seize documents relating to
contraventions of the Income Tax Act. The relevant provisions of the VAT Act
were identical to those of the Income Tax Act, which meant that the appellants
were not prejudiced in any way by the omission of any reference to the VAT
Act in the warrant, nor did SARS derive any benefit therefrom. The omission of
a reference to the VAT Act in the warrant was due to a mistake.
(iii) [T]he SARS officers had acted bona fide.
(iv) [T]he ‘no difference principle’ favoured the admission of the invoices as
evidence, that is, if the evidence would in any event have been discovered by
lawful means, the exclusion thereof would generally be detrimental to the
administration of justice, and in the present case the Markman Depot
invoices would have been discovered if a lawful warrant had been issued, and
the appellants could not have done anything lawful to prevent it.

Therefore the appeal against the convictions failed.

First leg: renders a trial unfair (based on) —

• The severity of the violation of accused’s
rights;
— caused by deliberate/flagrant police abuse.
• Degree of prejudice to accused balanced
by the public interest in convicting
accused:
— nexus between violation and accused’s

UNCONSTITUTIONALLY Second leg: is detrimental to the

OBTAINED EVIDENCE administration of justice (based on) —
S 35(5) a limited • The public interest in prosecuting criminals;
exclusionary rule • Respect for the Bill of Rights by
(trial-within-a-trial process) enforcement agencies;
illegal evidence will be • Good faith and reasonable conduct by police;
excluded in criminal • The seriousness of the violation to the
proceedings where it >> accused’s procedural rights versus
seriousness of offence.

Two-step onus:
(1) Onus on accused to establish violation of
a procedural right;
(2) Onus on state to prove that violation
does not result in unfair trial or is
detrimental to administration of justice.

Figure 16.1 Unconstitutionally obtained evidence

THIS CHAPTER IN ESSENCE

1 Since the enactment of the Constitution, evidence obtained improperly, unfairly,

illegally or unlawfully is classified as unconstitutionally obtained evidence despite the
fact that it may be relevant to the case at hand.
196 THE LAW OF EVIDENCE IN SOUTH

2 In criminal cases, unconstitutionally obtained evidence must be excluded in terms of

section 35(5) of the Constitution if the admission of such evidence would violate any
right in the Bill of Rights, render the trial unfair or would otherwise be detrimental to
the administration of justice.
3 There are a number of rationales that are used by the Courts to justify the exclusion of
unconstitutionally obtained evidence. These include the condonation rationale, which
seeks to distance the judiciary from police misconduct; the deterrence rationale, which
seeks to prevent future abuses of power and influence legal compliance by law
enforcement agencies in the collection of evidence; and the corrective justice rationale,
which seeks mainly to vindicate and uphold the rights of an accused person through
excluding tainted evidence.
4 The test to determine whether unconstitutionally obtained evidence is admissible is
twofold: first, the court must consider whether the admission of such evidence will
render the trial unfair and, second, whether the admission of such evidence would
otherwise be detrimental to the administration of justice. The test requires a court to
make a value judgment based on all the facts of a particular case.
5 The South African courts have tried to interpret section 35(5) of the Constitution in
manner that seeks to find a balance between due process rights enshrined in the
constitution and the interest of society to ensure that those who commit crime are
held to account for their criminal conduct. This has been a delicate balance to strike.
6 The South African courts have taken contradictory approaches to the question of who
bears the onus of proving that the reception of unconstitutionally obtained evidence
will render the trial unfair or be detrimental to the administration of justice. There
seems, however, to be a popular view emerging from some judgments and the
literature that the accused needs only to allege a violation and the State needs to
prove beyond a reasonable doubt that evidence was not collected in violation of the
constitutional rights of the accused or anyone else – as the circumstances hold in each
case.
7 There are also contradictions in case law regarding the treatment of crime suspects.
There are questions as to whether they should receive similar pre-trial rights as accused,
arrested or detained persons since they are not mentioned in section 35 of the
Constitution.
8 The question of admissibility of unconstitutionally obtained evidence is settled in a
trial-within-a-trial in order to give an accused an opportunity to testify on questions of
admissibility without having to be cross-examined on questions of guilt, thus negating
his or her right to remain silent in the main trial.