Section 35(5): are the superior courts consistent in their application of the factors to be taken into account in excluding unconstitutionally obtained evidence where admission would be detrimental to the administration of justice?

Sections 35(5) of the Constitution requires the court to determine whether the admission of unconstitutionally obtained evidence will render the trial unfair or otherwise be detrimental to the administration of justice. The main focus of this thesis is the second leg, namely whether the inclusion of unconstitutionally obtained evidence would be detrimental to the administration of justice. Jurisprudence arising out of art 24 of the Canadian Charter has had a significant influence on the interpretation of s 35(5) in determining whether the administration of justice is being undermined due to the admission of evidence. Presence of good faith, the nature of the transgression, determining whether there was an opportunity for evidence to be obtained legally, whether the evidence is real evidence and whether the evidence would have been inevitably obtained are crucial factors that the courts consider. Section 35(5) facilitates the balancing in criminal trials of the accused's, as well as the public's interests. The purpose of this study is to examine the coherence of Superior Courts judgments in dealing with the exclusion of unconstitutionally obtained evidence through the lens of the second leg. The history of judicial authority surrounding this topic will be discussed, ranging from earlier precedent serving as the backbone of the application of the exclusionary rule – while an in depth discussion of recent Superior Court cases ranging from the years of 2019 to 2023 will be the used to determine the more recent application of s 35(5) and whether the judiciary has consistently applied the aforesaid factors.

Grantor dc:publisher.institution

Department of Public Law

Year dc:date.issued

2024

Author dc:creator

• Kleynhans, Laken-Ash

Advisor dc:contributor.advisor

• Schwikkard, PJ

• Public Law

Handle dc:identifier.uri

http://hdl.handle.net/11427/41057

OAI identifier oai:identifier

oai:open.uct.ac.za:11427/41057