n South African Law Journal - Avoiding the pitfall encountered by the Canadian courts when assessing the admissibility of unconstitutionally obtained evidence in criminal trials in South Africa - a proposed alternative admissibility framework

Volume 127, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



This article undertakes a comparative analysis of s 24(2) of the Canadian Charter and s 35(5) of the Constitution of the Republic of South Africa, 1996. These provisions govern the admissibility of unconstitutionally obtained evidence in criminal trials. The s 24(2) admissibility framework has on more than one occasion been adapted in order to strike a balance between the societal interest in rights protection and the societal interest in crime control. It is argued that s 35(5) seeks to achieve a similar goal. In order to achieve this purpose, the South African Supreme Court of Appeal has adopted two dissimilar admissibility frameworks. The author considers the strengths and the weaknesses of these admissibility structures and proposes an alternative admissibility framework by having regard to the primary rationale of the provision and the textual nuances that give particular meaning to specific phrases contained in s 35(5), and without disregarding the values it was designed to enhance.

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