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This submission is of the view that the exclusionary rule in the law of

evidence pertaining to unconstitutionally obtained evidence should not be

relaxed or made flexible but should be rigid. This notion will be elaborated on
by making a detailed explanation of the exclusionary rule in the law of
evidence and what it entails. This paper will also delve into the friction
between two societal views concerning the exclusion or inclusion of
unconstitutionally obtained evidence in criminal trials. Namely, these societal
values are the interest of the state versus the interest of the citizen which
will be further explained. Furthermore, this submission will also discuss the
South African position on the exclusionary rule as well as examine section 35
(5) of the Constitution. These arguments will be substantiated by case law
and academic commentary on the subject in positing that the rule should not
be relaxed.
The exclusionary rule postulates that if evidence is gathered by unlawful and
illegal conduct such evidence is thereby excluded. The exclusionary rule is
incorporated in Section 35 (5) of the Constitution which states that
Evidence obtained in a manner that violates any right contained in the
Bill of Rights must be excluded if the admission of such evidence would
render the trial unfair or otherwise be detrimental to the administration
of justice.1
As such, despite the nature and relevance of the evidence, the means in
which the evidence is obtained has the potential to render the evidence
inadmissible before the court if unlawful. Because of this, it was important to









inadmissibility of evidence. The interpretation of section 35 (5) of the

Constitution created a two legged test in which one is separated from the

1Constitution of the Republic of South Africa 108 of 1996.

other for the reason that the assessment in each leg serves to enhance
different societal interests.2
The first leg of the test is concerned with the issue of trial fairness. It relates
to section 35 (5) that states, evidencemust be excluded if the admission
of such evidence would render the trial unfair. In essence, it implicitly brings
about one of the societal value, that of the interest of the citizen which is to
uphold and respect individual liberties. This means protecting the public
interests of the accused that are enshrined in the Bill of Rights. If the
evidence was obtained in a manner which violated rights in the Constitution
such evidence is inadmissible and if included would render the trial unfair.
Thus the question of trial fairness is important in the assessment of evidence
in the first leg of the test. The second leg of the admissibility assessment
relates to the phrase would be detrimental to the administration of justice. 3
In this leg of the test, two factors are looked at in determining the
admissibility of the unconstitutionally obtained evidence. The first is the
degree of violation of the Constitution and the second, the impact that such
exclusion will have upon the administration of justice. 4 This brings to
attention the second societal value which is the interest of the state that
pays homage to crime control in that evidence bearing on the commission
of a crime and necessary to enable justice to be done is not excluded on
some technical ground.5
The test for admissibility or inadmissibility of evidence is more of an inquiry
into the circumstances surrounding the case. Evidence plays a pivotal role in
2 D. Ally 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 (2012) 15 PER/PELJ at 477.
3 Ibid., 480.
4 Ibid.
5 Schwikkard & Van der Merwe Principles of Evidence (4d ed; 2016) pg 186.

adjudication. Without evidence there is no case. On the second leg of the

admissibility assessment of evidence, the seriousness of the charge is also
looked at. However, according to Ally, the perception should not be created
that the more serious the charges the lesser the protection accorded to an
accused should be. This is usually the opinion taken by the public that, in
some instances, push for the admissibility of unlawfully obtained evidence to
garner conviction which in their view is some form of justice. 6 This
submission to the SALRC is of the view that, given the seriousness of the
charges, the unlawfully obtained evidence should be excluded reason being
that the State should conduct itself in high standards with professional
aptitude. Same applies in less serious charges. There should exist equal
protection and benefits of the law. This is reiterated by Cromwell J in R v Cote
as well as recapitulated in S v Makwanyane where the court stated 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.7
Concerning criminal trials, the exclusionary rule incorporated in section 35(5)
is there to offer protection to those who have been accused of committing a
crime, inclusive of protection from the arbitrary actions of the State. As such,
the provision should not be easily manipulated and interpreted in an
oscillating manner that offers little to non-existent protection for the accused
against the State that represents the majority. In South African law the courts
are the protectors, the custodians of the rights and freedoms enshrined in
the Constitution.8 Given this, when interpreting law the courts should always
carry the principle of realization of individual liberties. In criminal trials, the
6 R v Dalley 2002 NSWCCA 284 para 3.
7 R v Cote 2011 SCC 46 para 54 and S v Makwanyane 1995 (2) SACR 1 (CC) para
8 R v Collins 1987 1 SCR 265 (SCC) Lamar J, on para 34 states that courts are
customarily the only effective shelter for individuals and unpopular minorities. This
is also echoed in the South African case Pillay v S 2004 (2) BCLR 158 where the
judgment portrayed the judicial officers as protectors of Constitutional rights.

state is more resource equipped than the accused and that is why the
burden of proof befalls the state. As such the state should uphold a higher
standard of criminal procedure competency including the lawful obtaining of
In protecting the accused (minority) and upholding the exclusionary rule
from unfettered action of the State (majority) by excluding unlawfully
obtained evidence, it conjures public confidence in the courts and the justice
system unlike if such evidence is given the light of day. 9 In allowing
unlawfully obtained evidence to be used, it opens a Pandoras Box in which
legal certainty will be battered reason being that in certain situations
unlawfully obtained evidence is permitted and in others it is barred.
According to Currie and De Waal,







government that is constrained by certain rules, including the rule that

a decision of the majority may not violate the fundamental rights of an
Given the above mentioned, if unlawfully obtained evidence is allowed and
the fundamental rights of the individual (to stand a fair trial without the
violation of his rights) are trumped on by such evidence it also affects other
values such as the objectives of Constitutional supremacy which are
concomitant to the ideals of a democratic nation.
The Discussion Paper (fictional) was a product of civil society pressure which
aimed to reform the exclusionary rule of unlawfully obtained evidence. As
one has noted from past decisions such as the cases of S v Makwanyane and
S v Melani public opinion and pressure (being brought about by the civil
society) does not always warrant a reform of a particular set of laws. In S v
9 Ibid. 2, 480.
10 Currie I and De Waal J (eds) The Bill of Rights Handbook 5th ed (Juta Cape Town
2005) pg 10.

Melani, Froneman J excluded evidence of a serious nature even though public

opinion would have approved the use of unlawfully obtained evidence. The
court pronounced its ruling on the inadmissibility of evidence by stating that
it is not confined by public opinion. Froneman J postulated that the longer
term purpose of the Constitution is to establish a democratic order based on,
amongst others, the recognition of basic human rights. 11 This sheds light to
the undisputed fact that judicial officers should discharge their duties without
fear, favour or prejudice and to uphold the sanctity of the justice system.
The above is also an example of how tension between the interest of the
citizen (the protection of fundamental rights) and the societal value of the
State who are crime control protagonists12 exists in relation to the
admissibility or inadmissibility of unlawfully obtained evidence. When
interpreting the law judicial officers are not seeking which best interest
answers the issue. What they do is conscientiously give cognizance to the
law and uphold constitutional values. Its the interest that will fit in the ambit
of the legal interpretation. It just so happens that the legal interpretation of
the rule of exclusion best serve the fundamental values of the Bill of Rights
and deter the violation of individual rights by excluding unlawfully obtained
evidence that was seized by virtue of the violation of the Bill of Rights itself.
This paper asserts that the rule of exclusion in the law of evidence is
paramount to the protection of fundamental rights enshrined in the Bill of
Rights, especially in situations of criminal proceedings. The inadmissibility of
unconstitutionally obtained evidence regulated by section 35 (5) of the
Constitution should not be relaxed as this will undermine the societal value
of the interest of the citizen (protection of individual rights). If an aperture to
allow unlawfully obtained evidence is necessitated, it would be detrimental
11 S v Melani 1996 (2) BCLR 174 (EC) 353.
12 D. Ally 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 (2012) 15 PER/PELJ at 477.

to the administration of justice as this would result in judicial contamination.

Thus it is necessary and fundamentally sound to keep the exclusionary rule
rigid because allowing unconstitutionally obtained evidence will intrinsically
flaw other Constitutional values and allow room for arbitrary abuse. As
discussed in this paper, the judicial officers are there to protect individual
liberties and to uphold the values of the Constitution which are dignity,
equality and freedom, not to bend to the demands of public opinion and
pressures exerted by the civil society.