LAW OF EVIDENCE LCEV 402

UNCONSTITUTIONALLY OBTAINED EVIDENCE

Here we are going to deal with whether unconstitutionally obtained evidence

is admissible or not and if so under what circumstances. Section 35(5) of the
Constitution provides that evidence obtained in a manner that violates any
right in the Bill of Rights must be excluded if its admission will render the trial
unfair or otherwise be detrimental to the administration of justice. This
particular section applies to criminal proceedings only. A full interpretation of
section 35(5) means that even evidence that is relevant and that which would
otherwise be admissible should be excluded from the proceedings if such
evidence was unconstitutionally obtained. This rule is called exclusionary rule
and is found in USA and Canada as well.

Theoretical basis and practical purpose of the Exclusionary Rule

1. The preventive effect argument

The US court had held that the purpose of exclusionary rule is to deter the
unconstitutional conduct on the part of the police by compelling respect for
constitutional guarantees.

South African courts also used this rule to deter police from obtaining
evidence through violation of individual rights. This was evident in the case
of S v Mphala 1998 (1) SACR (N) where the court was dealing with the case
of pointing out.

2. Due process in the context of the Bill of Rights

The exclusionary rule is founded on the principle of due process which

rejects the idea that the truth must be ascertained at any cost. The BoR’s
guarantees the due process and if unconstitutionally obtained evidence is
admitted then the constitutional guarantees will be compromised.

If one were to follow due process and the exclusionary rule it will imply that
evidence, however relevant and persuasive it might be, should in principle
be excluded where the admission of such evidence would undermine the

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 value system created and guaranteed by the BoR’s. The exclusionary rule is
an evidential and constitutional barrier against violation of individual rights.

3. The doctrine of legal guilt

A person should be found guilty if and only if the factual determination of

guilt are made in procedurally regular fashion and by authorities acting
within powers duly allocated to them.

In the case of S v Lwane 1966 2 SA 433 A the court dealt with an accused
giving self-incriminating evidence without the court warning him that he
has the right not to self-incriminate himself. On appeal the court said that if
is not in the interest of society that an accused should be convicted unless
he has a fair trial in accordance with accepted rules of adjudication.

4. Judicial integrity

If a court admits unconstitutionally obtained evidence the court will violate

the constitution, the court will be acting contrary to their oath to uphold
the constitution and the courts will create the impression that they sanction
or condone unconstitutional conduct by government officials.

5. According to the principle of self-correction the due process system

must be able to correct abuses of power within the same proceedings
6. The exclusionary rule reinforces the existing rules regulating police
powers.

Read the Canadian Charter section 24 (2)

Section 35(5) of the Constitution this section deals with only

unconstitutionally obtained evidence. To invoke this section there must be
an allegation of a violation of a constitutional right. Section 35(5) is similar
to section 24(2) of the Canadian Charter. Section 35(5) is a qualified rule in
that constitutionally obtained evidence must be excluded only where the
admission of such would render the trial unfair or would otherwise be
detrimental to the administration of justice.

In S v Naidoo the court said that an unfair trial is always detrimental to the
administration of justice however if the admission of evidence does not
affect the fairness of the trial exclusion must still be necessary if the
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 admission of such evidence would be detrimental to the administration of
justice.

How is section 35(5) of the Constitution applied in practice?

During the criminal trial the prosecutor will lead evidence of various
witnesses in order to prove the allegations against the accused. Each type
that he intends adducing has to meet certain requirements and rules of
evidence for it to be admissible. One of the main requirements for
admissibility is that the evidence must have been obtained without police
violating or breaching the constitutional right. When the Prosecutor begins
to lead evidence that the defence maintains was unconstitutionally
obtained and that a right in the BoR’s was violated during the procurement
of such evidence. At this point the main trial should stand down and the
court will then hold a trial within a trial to determine the admissibility of the
evidence that the prosecutor was to lead. Before the trial within a trial
commences there are certain requirements that need to be met. These
are as follows:

1. Threshold test

The court will look at whether the objection to the evidence is based on the
violation of a constitutional right in the Bill of Rights or on a non-
constitutional or statutory right.

Section 35(5) of the constitution is applicable only where there is a violation

of a constitutional right contained in the Bill of Rights.

2. There must be a causal link between the violation of the constitutional

right and the procurement of evidence in question.
In R v Goldhart the Canadian court emphasised that there must be the
link between the breach of the Charter and the challenged evidence.
South African Supreme Court supported the Canadian approach in S v
Mark, the case was about prisoners who witnessed a murder whilst in
custody and were assaulted by a prison warder to disclose the identity of
the perpetrator. These prisoners were called to testify in the trial. They
had previously made written statements. The defence objected to the
admissibility of the evidence of these prisoners on the basis that it was

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 unconstitutionally obtained. The court said that the witnesses testified
in court and gave evidence voluntarily. The court further said that the
link between the testimony in court and the assault was too weak. The
court also mentioned that it was strictly speaking not dealing with
unconstitutionally obtained evidence because the oral evidence given by
the witnesses in court was different from the written statements
obtained during the investigation phase. The witnesses were not forced
to testify therefore the court felt that the evidence should be admissible.
The defence failed to establish the causal link between the violation of
the constitutional right and the oral evidence given by witnesses in
court.
In S v Soci the court said evidence obtained in a manner that violate any
right in the Bill of Rights includes all acts of providing evidence
performed by a detainee, subsequent to an infringement of
constitutional right in the course of pre-trial investigations. The court, in
this case, maintained that it can exclude the evidence that will bring the
administration of justice into disrepute even if there is no causal link
between the procurement of the evidence and the violation of the
constitutional right. In this case it became clear that a strict causation
test cannot be applied because it diverts the emphasis away from the
two tests set out in section 35(5) namely: whether the admission of
evidence will render the trial unfair or otherwise be detrimental to the
administration of justice.

3. Section 35(5) and Standing (locus standi)

The accused must have standing before he can apply to invoke the
exclusionary rule. This pre-requisite implies that the accused
constitutional right must have been violated when the evidence in
question was procured. This is the position in USA and Canada but it is
not set out clearly in the South African Constitution, section 35(5) does
not specify who the bearer of right should be. To say that section 35(5) is
only applicable when there is a violation of the accused right will defeat
the objectives of section 35(5) which is to ensure that the administration
of justice is not brought into disrepute through admission of
unconstitutionally obtained evidence.

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 In S v Mthembu 2008 2 SACR 407 SCA evidence against the accused have
been illegally obtained through the torture of the third party and had
been used against the accused. At no point was the accused rights
directly violated however the SCA explained that the principle and policy
require the exclusion of improperly obtained evidence from any person
not only a particular accused. Evidence unconstitutionally obtained from
a third party may therefore be excluded where the circumstances of a
particular case warrant it.
This decision makes it clear that evidence obtained through a deliberate
violation of a constitutional right will be inadmissible and even more so
when such violation arises out of police violence.

4. Section 35(5) and the admissibility of evidence unconstitutionally

procured by a private party
It is said that this subsection is applicable when the prosecution want to
introduce evidence obtained by private individual s in a manner that
violate the accused constitutional rights, e.g. when the Induna assault
the offender to get the confession.

5. Section 35(5) and the Limitation Clause in section 36 of the

Constitution
Section 36 0f the Constitution provides that only law of general
application such as statutory or Common law rules can validly limit the
right in the Bill of Rights. This however does not mean that police
officers can conduct themselves in a manner that is not authorised by a
law of general application and later claim that such conduct was
reasonable and justifiable having regard to all circumstances of the
case, therefore there was a permissible limitation . Evidence OBTAINED
THROUGH SUCH CONDUCT remains unconstitutionally obtained but
when deciding on its admissibility the court will consider all the
circumstances surrounding the conduct that led to the limitation. The
limitation clause is applicable where it is alleged that evidence was
unconstitutionally obtained on the basis that the statutory or common
law rules in terms of which the evidence ought to have been obtained

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 was deviated from and this amounted to a limitation of a right in the Bill
of Right which is not permitted in the Constitution.
A search and seizure without the consent of the owner local or local
occupier of the premises limit the right to privacy.

6. Section 35(5) and co-accused constitutional right to a fair trial

The question to be asked here is whether evidence found to be
unconstitutional in respect of accused number one (1) could be used by
accused number two (2) when cross-examining accused number one.
This will imply that co-accused can use unconstitutionally obtained
against each other.
In S v Aims 1998 1 SACR 343 C the court held that the admission of
accused one evidence obtained in a breach of his right to be advised that
he has a right to remain silence will violate will violate accused one of a
fair trial. The court held that it would be unfair to allow a co-accused to
use unconstitutionally obtained evidence against each other.

7. Section 35(5) and the impeachment of the accused

Unconstitutionally obtained evidence can be used by the prosecution
when cross- examining the accused only for the sole purpose of
impeaching the credibility.

8. Section 35(5) and section 37 of the Constitution

Derogation of right in section 37 (1) of the Constitution provides that a
state of emergency can be declared only by the Act of Parliament when
the safety of the nation is threatened. During the state of emergency
where may be certain derogations from section 35(5) but not the right
to a fair trial.

When the exclusionary rule is raised during the proceedings the court will
conduct an enquiry by way of a trial within a trial which is done in two stages.
The first stage of the trial within a trial in terms of section 35(5) of the
Constitution requires the court to decide whether the admission of
unconstitutionally obtained evidence will render the trial unfair. It is not clear

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from the wording of section 35(5) whether this section is applicably by and
available to both the accused and the prosecution or only to the accused.

Section 35(5) deals with the rights of the accused, detained and arrested
persons. This implies that the accused right to a fair trial should be a decisive
factor evidence and should therefore look at how the admission of
unconstitutionally obtained evidence will affect the accused right to a fair trial.
Unfairness to the prosecution if the evidence is excluded and to the accused if
admitted are factors the court will take into consideration when deciding
whether the admission of the evidence will infringe the accused constitutional
right to a fair trial. The right to a fair trial is a comprehensive and integrated
right and therefore certain elements that are inherent to a right to a fair trial.
One of the aims of the right to a fair trial is to ensure that innocent people are
not wrongly convicted because a wrong conviction can have adverse effect on
the liberty, dignity and other interest of the accused.

Cases to be read are as follows:

S v Lottering

S v Mphala

S v Soci

Ex Parte Minister of Justice in Re R v Mathemba

Sipho Patrick Magwaza v The State (20169/14) [2015] ZASCA 36 (25 March
2015)
Matlou and Another v S (479/09) [2010] ZASCA 52; 2010 (2) SACR .

S v Mthembu (379/07) [2008] ZASCA 51; [2008] 3 All SA 159 (SCA); [2008] 4 All
SA 517 (SCA) ; 2008 (2) SACR 407 (SCA) (10 April 2008)

S v Ngwenya (CC73/15) [2015] ZAGPPHC 654 (30 July 2015)

In order to conduct a proper enquiry it is important for the court to establish

what makes up the accused right to a fair trial. When deciding on the fairness
of the trial the court will exercise its discretion and in so doing will take into

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account the following factors to determine whether the admission of
evidence will render the trial unfair:

1. The nature and extent of the breach or violation of a right,

2. The presence or absence of prejudice to the accused caused by the
breach,
3. Whether the exclusion of the evidence will not tilt the balance too far in
favour of due process as opposed to crime control, and,
4. The interest of society and public policy.

When assessing trial fairness the court is often faced with the enquiry into the
privilege against compelled self-incrimination. The accused has a right not to
be compelled to give evidence that will lead to self-incrimination. An accused
has a right not to be compelled to make a confession or admission that can be
used as evidence against him. In S A courts approach for the purposes of
section 35(5) of the Constitution, is that even though the failure to administer
the constitutionally required warnings had an adverse impact on the fairness
of the entire process, it does not necessarily mean that the admission of
unconstitutionally obtained evidence will inevitably result in the accused being
deprived of his constitutional right to a fair trial.

In the case of S v Lottering, the accused stabbed the deceased and ran into a
night club. D witnessed this and informed the police that the accused ran into
night club. D pointed out the accused to the police. The police informed the
accused of the allegation and arrested the accused and demanded to know
where the murder weapon was. The accused pointed out a person called L and
L handed the knife to the police. During the trial the prosecutor wanted to lead
evidence of this pointing out that led the discovery of the knife. The accused
attorney objected to the admission of this evidence on the basis that after the
accused was arrested the police did not inform the accused of his
constitutional right in terms of the judge’s rules before the pointing out was
done, that is, before the accused pointed out L. The trial court held that
evidence of seizure and pointing out of the knife was admissible. On appeal it
was argued that the evidence should have been excluded because of the
violation of the constitutional right and that of the pointing out of L by the
accused and the discovery of the knife was inadmissible. This implies that L’s
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evidence flowing from pointing out when the accused pointed L to the police
should be inadmissible. On the appeal the court held that constitutional rights
were violated, the accused has made an admission incriminating himself in the
commission of an offence.

The drafters of the Constitution were of the opinion that the accused rights
should be respected at all times and that the police and other persons who has
rights and powers of arrest and detention should not simple pay leap service to
these rights but should at all times meticulously observe them. Section 35(5)
does not require the exclusion of all unconstitutionally obtained evidence. The
court must make a value judgment by weighing up the competing interests.
The violation must not be deliberate or else it will be detrimental to the
administration of justice.

In this case the court on appeal held that the police had to act expeditiously to
recover the knife and the police officers did what any reasonable person will
do. There were no threats, intimidation or force used to get the accused to
point out the knife. The accused acted voluntarily. The circumstances
surrounding the pointing out showed that it would not be detrimental to the
administration of justice to admit the disputed evidence and it will not render
the trial unfair. The appeal court confirmed the lower court’s decision.

In the case of S v Soci the police officer failed to explain the accused right to
legal representation before the pointing out was done. The court held that it
was clear that if the accused was informed of his right to legal representation
he would have secured the services of legal representative and would not have
made a there was no hard and fast rule in respect of how many times the
warnings should be given or the rights explained. Each case depends on its
own facts and the personality and the characteristics of the accused age
intelligence, education, background and nationality. Where it is clear that the
accused had knowledge of his constitutional rights and option at the when he
responded to questioning by the police ,he fact that the constitutionally
required warning were not given at all cannot automatically lead to the
conclusion that the admission of the accused response will render the trail
unfair.

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The right to be given the constitutional warning extends to persons who are
suspects, about to become arrested person and accused. When an individual
makes an incriminating statements without first being given the constitutional
warning and at a stage when he is under no suspicion by the police, there is no
reason to exclude such evidence. The court will look at whether the statement
was made spontaneously and if the police acted in good faith. (Shabalala v S
and S v Naidoo),

When exercising its discretion establishing trial fairness the court will also look
at whether the accused waived any of his rights. An arrested person can waive
his rights to exercise his right to silence and right to legal representation,
however such waiver must be done with the full knowledge and understanding
of the consequences of waiving such right. (S v Mphala).

When exercising its discretion in deciding on trial fairness in situation where

the court is dealing with self- incriminating evidence, real evidence or evidence
emanating from the accused, the court will look at the type of evidence that is
being dealt with.

In the case of Ex Parte Minister of Justice in Re R V Mathemba, the court

explained that the common law rule regarding incriminating was that privilege
against self- incriminating should be confined to testimonial utterances and
communication, viz. statements and pointing out should not be applied to real
evidence emanating from the accused such as blood samples, finger prints,
voice identification or even bullet launched in the body of a suspect under
certain circumstances. The court has to consider the admissibility of derivative
when determining trial fairness. When the accused is compelled to disclose self
-incriminating evidence when questioned during the investigative inquiry such
evidence cannot be used directly in a criminal trial against the accused because
of his right to privilege against self-incriminating. Derivative evidence namely
evidence secured directly or indirectly as a result of the compelled self-
incriminating evidence is admissible because that evidence does not amount to
unconstitutionally obtained evidence.

The court will consider the following factors when exercising its discretion in
terms of section 35(5) in respect of admissibility of unconstitutionally obtained
real evidence and trial fairness:

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 1. Whether the derivative real evidence existed before the breach of the
constitutional right,
2. The nature and extent of the breach which led to real evidence.
3. Whether there was violence involved in obtaining the evidence or
committing the breach,
4. Whether the real evidence was discovered through a non-court but
inadmissible testimonial communication e.g. a confession voluntarily
made by the accused to a constable,
5. Real evidence remains non testimonial therefore its admissibility
should not attract fair trial considerations, and,
6. Section 35(5) of the Constitution and section 218 of CPA can co-exist.
Section 218 of Act 51 of 1977 - Admissibility of facts discovered by means of
inadmissible confession
(1) Evidence may be admitted at criminal proceedings of any fact otherwise
admissible in evidence, notwithstanding that the witness who gives evidence
of such fact, discovered such fact, or obtained knowledge of such fact only in
consequence of information given by an accused appearing at such
proceedings in any confession or statement which by law is not admissible in
evidence against such accused at such proceedings, and notwithstanding that
the fact was discovered or came to the knowledge of such witness against the
wish or will of such accused.
(2) Evidence may be admitted at criminal proceedings that anything was
pointed out by an accused appearing at such proceedings or that any fact or
thing was discovered in consequence of information given by such accused,
notwithstanding that such pointing out or information forms part of a
confession or statement which by law is not admissible in evidence against
such accused at such proceedings.
Trial fairness and admissibility of identification evidence obtained at an
identification parade held in the absence of the accused legal representative.

In the case of S v Mphala both accused were properly informed of their

constitutional rights the third party requested the assistance of a legal
representative, the attorney contacted investigating officer not to make
arrangements for the accused to make statements or to do any pointing out
until he had an opportunity to consult with them. The investigating officer told
the attorney that both accused want to make statements that will be done at
14h00. However when the attorney arrived it transpires that both accused
made statements between 12h45. The court found that there were no

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informed consent by the accused in regard to making statements therefore
there was no valid waiver of rights by the accused. The investigation officer
should have informed the accused that the attorney was on his way and that
the attorney did not want them to make statements until he consulted with
them. The court found that the admission of the confession made by the
accused will render the trial and thus had to be excluded.

From this decision one could infer that SA’s courts adopted the approach that
this type of evidence will only be excluded where the circumstances were so
extreme that the court finds a need to discipline the police for the flagrant way
in which they conducted themselves. Where a witness identify the accused in
court by way of a dock identification, if the court I satisfied that the dock
identification is based on the witnesses observation made by the witness at a
time either than the inadmissible identification parade, e.g. an observation
made at the time of the commission 11of an offence.

This was highlighted in S v Bailey 2007 3 SACR 1 (C ) and S v Thandwa 2008

1 SACR 613 SCA. Here the court said that the violation of rights is severe
when they arise out of a deliberate conduct of the police or are flagrant in
nature. There is a high degree of prejudice when there is a close causal link
between the rights that are violated and the subsequent self-incriminating acts
of the accused. Evidence obtained through inadvertent or minor violations of
the BoRs consequently hardly undermine public confidence in the rule of law.

SECOND LEG OF THE TEST IN TERMS OF S35 (5)

Whether the admission of the evidence will be detrimental to the

administration of justice.

The court will generally move into the 2nd stage of the enquiry if the finding of
the first leg of the test was that the admission would not render the trial
unfair. If it is at this stage found that the admission of this evidence will be
detrimental to the administration of justice than such evidence should be
excluded. This was highlighted in S v Mphala where the court said in so far as
the justice is concerned there must be a balance between respects particularly
the law enforcement agencies for the BoRs on the one hand and on the other

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hand, respect particularly by the man on the street for the judicial process.
Overemphasis of the BoRs will lead to acquittal on what will be perceived by
the public as technicalities whilst overemphasis of the judicial processes will
lead to a dilution of the BoRs and its provisions being minimised. The Mphala
decision was approved by in the case of S v Thandwa and S v Pillay and Others.

The courts look at the following factors when deciding whether the admission
of unconstitutionally obtained evidence will be detrimental to the
administration of justice:

1. The presence or absence of good faith and reasonable police conduct.

Law enforcement officers who had exercised reasonable care in
ascertaining the provisions of the law and applying it to the facts before
them can be said to have done all that the exclusionary sanction can
demand on them.
In the case of S v Naidoo it is highlighted that the principle that bad faith
conduct by the police should weigh heavily in favour of exclusion of the
unconstitutionally obtained evidence. It cannot be in the public interest
to permit the police deliberately break rules that govern investigative
process and protects constitutional rights. In this case the state sort to
rely on evidence of conversation intercepted in terms of the Interception
and Monitoring Prohibitions Act 127 of 1992. At the trial the court
excluded. At the trial the court excluded the evidence obtained from
those conversations on the basis that the police used false information
to obtain permission to intercept and monitor the conversations and as
such this amounted to a violation of the accused right to privacy. In the
case of S v Madiba 1998 1 BCLR 88(D) THE COURT considered the
seriousness of the offence , the information at the disposal of the police
in respect of the accused , the place where the evidence was and the
safety to the police, the community and the accused themselves. The
court weighed the extent of the infringement to the right to privacy
against the importance of the achievement of the objective of the police
which was to obtain evidence. The exclusion of unconstitutionally
obtained evidence must therefore be considered in the context of the
realities the police find themselves in when performing their duties.

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 Good faith conduct on the part of the police must be reasonable in the
circumstances of the case.

2. Public safety and Urgency

This factor favours the admission of unconstitutionally obtained
evidence. When dealing with this factor the court will look at whether
the unconstitutional conduct that was resorted to by the police was
done to prevent the imminent destruction of the valuable evidence.
3. The nature and seriousness of the violation
Here the court will look at whether the unconstitutional conduct by the
police was spontaneous or deliberate. Where the conduct was
spontaneous it will favour admission of the evidence.

4. The availability of lawful means or method of securing evidence

This is common in matters related to search and seizure. Here the court
will consider whether the police acted in good faith and the
reasonableness of the police conduct. The fact that there was an
alternative method available does not necessarily mean that the
evidence should be excluded, the court will take into consideration all
the surrounding circumstances. In the case of S v Van der Venter (pages
243- 245 Oxford).

5. Real evidence
This type of unconstitutionally obtained evidence will seldom render the
trial unfair therefore when dealing with this type of evidence the second
stage of the test is very important. The court will consider whether the
violation was made in good faith, whether it was inadvertent or merely a
technical nature.

6. Inevitable Discovery/ discovery on the basis of an independent source

If the real evidence would, but for the unconstitutional conduct, still
have been discovered by lawful means, the exclusion of such evidence
would generally be detrimental to the administration of justice. This
implies that in these circumstances such evidence should be admitted if

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 the evidence within inevitably have been discovered through lawful
means.

BURDEN OF PROOF
In the case of S v Soci it was pointed out that there is no onus on the
state to disprove the fact of an alleged violation of an accused right
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 doubts.
Once the factual findings has been made and it is indeed concluded that
there was a breach of the 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. The applicants bare the onus of proof.

In S v Gumede and others 1998 (5) BCLR 530 (D) 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 another
1998 (9) BCLR 1157 (N) 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.

EVIDENCE PROCURED IN TERMS OF ENTRAPMENT IN TERMS OF SECTION

252A OF CPA

The Investigating Officer applies to the DPP to set a trap. The evidence will be
inadmissible if the DDP’s consent was not obtained in advance. The court will
reject the evidence on the basis that the proper procedure was not followed
when procuring the evidence.

Entrapment is not an automatic defence that the accused can raise.

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Sect 252A of the CPA sets out the specific requirements on how the trap must
be conducted.

When the accused raises objection to the admissibility of evidence procures as

a result of a trap, the Police will often raise the provisions of Sect 36 of the
Constitution.

HOW TO ANSWER QUESTIONS IN THE EXAM ON THIS SECTION:

Apply the FIRAC method.

F - what are the facts or law in dispute in this scenario

I – what are the legal issues in this scenario

R – what is the law that is relevant to this scenario

A – apply the law to the set of facts

C – arrive at a conclusion that is sound in fact and in law. Use cases

to substantiate your conclusion.

When dealing with this type of evidence it is

imperative that you first identify the type of evidence
being dealt with, the requirements for admissibility of
that type of evidence, the procedure that was actually
followed during the procurement of that evidence,
whether any constitutional rights were violated in the
process. Once this is done you can decide how to deal
with the admissibility of the evidence.

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