The rationales for the exclusion of evidence

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Research questions

Against the background outlined above, this thesis attempts to answer the following main question: How should section 35(5) be interpreted in order to achieve its aim of striking a satisfactory balance between rights protection and crime control interests, without sacrificing constitutional principle? Put differently: Would the application of this section achieve its primary goal of ensuring trial fairness as well as the preclusion of detriment befalling the criminal justice system? The questions asked below serves the purpose of seeking an answer to this central issue.
Throughout the process of answering these questions, a fundamental issue that needs to be addressed is whether section 24(2) Charter jurisprudence represents an appropriate guide for the interpretation of section 35(5). An important theme explored in this thesis is the rationale for exclusion under section 35(5). A right cannot exist without a remedy. For this reason the rationales for exclusion when admission would tend to render the trial unfair or otherwise be ‘detrimental’ to the administration of justice, are explored in the course of this thesis. Three rationales are considered in the interpretation of section 35(5).
firstly, the remedial imperative, secondly, the deterrence rationale, and thirdly, the judicial integrity rationale. It is also essential to investigate the threshold requirements applicable to section 35(5). Threshold requirements serve the important purpose of separating superfluous claims from those that have merit. An accused who cannot demonstrate that she has satisfied the threshold requirements contained in section 35(5) may not be allowed to enforce the exclusionary relief guaranteed by the section.
This thesis considers four threshold requirements. The first threshold requirement relates to the question: who are the beneficiaries of section 35(5)? After 1994 South Africa became increasingly exposed to the global economy. As a consequence, the mobility of people, goods and information entered and crosed the South African borders with immense rapidity. This upsurge in the mobility of people and articles could lead to the increased likelihood that criminal conduct, partially executed in one country being completed in another jurisdiction. It is against this background that the first issue relating to the beneficiaries of section 35(5) is considered.

TABLE OF CONTENTS :

• SUMMARY/ OPSOMMING
• ACKNOWLEDGEMENTS
• ABBREVIATIONS AND ACRONYMS
• TABLE OF CASES
• Chapter 1: Introduction
  • A. Background to research questions
  • B. Research questions
  • C. Terminology
  • D. Literature review
  • E. Methodology
  • F. Limitations
  • G. Structure and overview of chapters
• Chapter 2: The rationales for exclusionary remedies; exclusion in England and Wales; and the birth of section 35(5) of the South African Constitution
  • A. Introduction
  • B. The rationales for the exclusion of evidence
  • C. The common law inclusionary rule in England and Wales
  • D. The statutory law position in England and Wales
  • 1 Introduction
• Chapter 3: Threshold requirements under section 35(5) of the South African Constitution
  • A. Introduction
  • B. The beneficiaries of the exclusionary remedy
  • 1 The concept ‘suspect’ during the pre-constitutional era
  • 2 Brief comparative analysis of the concept ‘suspect’
  • 3 The concept ‘suspect’ during the post-constitutional era
  • C. The link between the violation and the discovery of the evidence: the ‘connection’ requirement
  • 1 The ‘connection’ requirement in Canada
  • 2 The ‘connection’ requirement in South Africa
  • D. Raising the section 35(5) issue and procedural matters
  • 1 Raising the issue: the duties of the parties and the nature of the ruling
  • 2 Trial-within-a-trial; establishing the basis for the issue by means of facts: the ‘threshold onus’
  • E. Standing to rely on section 35(5)
  • F. Conclusion
• Chapter 4: The first leg of the admissibility analysis: determining trial fairness under section 35(5)
  • A. Introduction
  • B. Determining trial unfairness under section 24(2) of the Canadian Charter
  • 1 The nature of the evidence obtained after a violation: ‘conscriptive’ evidence
• Chapter 5: The second leg of the admissibility analysis: Determining ‘detriment to the administration of justice’ in terms of section 35(5)
  • A. Introduction
  • B. Canada
  • 1 Determining ‘disrepute’; public opinion and the nature of the discretion
  • 2 The seriousness of the violation: exclusion to prevent judicial condonation of unconstitutional conduct
  • 3 Effect of exclusion on the administration of justice in Canada
  • C. South Africa
  • 1 Determining ‘detriment’; public opinion and the nature of the discretion
  • 2 The seriousness of the constitutional violation in South Africa
  • 3 The effect of exclusion in South Africa
  • D. Conclusion
• Chapter 6: Conclusions and recommendations
  • A. Conclusions
  • 1 The appropriateness of Canadian section 24(2) jurisprudence as a guide for the interpretation of section 35(5)
  • 2 Threshold requirements
  • 3 The fairness of the trial requirement
  • 4 Determining ‘detriment’
  • B. Recommendations
  • 1 Threshold requirements
  • 2 The substantive phase
  • C. Concluding remarks
  • BIBLIOGRAPHY
  • ANNEXURES
  • ANNEXURE A
  • ANNEXURE B
  • ANNEXURE C
  • ANNEXURE D

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