Uncertainty surrounds the practical application of certain aspects of the exclusionary rule embodied in section 35(5) of South Africa’s 1996 Constitution. Useful parallels may be drawn between section 35(5) and section 24(2) of the Canadian Charter of Rights and Freedoms, although in seeking guidance from Canadian jurisprudence, South African courts will have to bear in mind the differences between the two sections. The phrase ‘Evidence obtained in a manner that violates any right…’ in section 35(5) should be interpreted to mean that the evidence sought to be excluded is not too remote from the initial Bill of Rights violation. The relationship between a Bill of Rights breach and the obtaining of evidence should be examined in its totality to establish the strength of the causal relationship. Furthermore, South African courts should not allow an accused to rely on section 35(5) to exclude evidence obtained in violation of someone else’s constitutional rights. Once a court finds that the admission of certain evidence would render a trial unfair, it has no option but to exclude. In determining this question, a court should consider factors affecting the fairness of the trial, the seriousness of the violation, and the effect of excluding the evidence. Section 35(5) does not place an onus on either party to prove these factors, but rather involves a value judgment. Finally, it is submitted that section 35(5) is the only basis upon which unconstitutionally obtained evidence can be excluded. Notes, ref.
