oa Comparative and International Law Journal of Southern Africa - The exclusion of evidence and section 35(5) of the constitution: should South African courts follow the Canadian example?
Uncertainty surrounds the practical application of certain aspects of the exclusionary rule embodied in section 35(5) of the South African Constitution. As these aspects have hardly been mentioned in our case law, this discussion will endeavour to speculate on the possible approaches that a court will take when considering the exclusion of unconstitutionally obtained evidence. The exclusionary rule states: Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. Before the exclusionary rule came into being, there was no particular concern for the way in which evidence was obtained. As a general rule, relevant evidence was admissible. This approach was followed because South African courts were required to refer to the English common law in force on 30 May 1961 with regard to the admissibility of unlawfully obtained evidence.
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