n Stellenbosch Law Review - A comparative analysis of the "connection" and the standing threshold requirements under section 24(2) of the Canadian Charter and section 35(5) of the Constitution of the Republic of South Africa, 1996

Volume 22, Issue 2
  • ISSN : 1016-4359


Section 35(5) of the Constitution of the Republic of South Africa, 1996, empowers the South African courts to exclude unconstitutionally obtained evidence in criminal trials. This section is modelled on the terms of section 24(2) of the Canadian Charter. Before a court may consider the substantive phase of the admissibility assessment (whether to receive or exclude the disputed evidence) it must be satisfied that the threshold requirements have been complied with.

This contribution consists of a comparative analysis of the "connection" and standing threshold requirements contained in sections 35(5) and 24(2). The "connection" threshold dictates that there must be an adequate link between the violation and the discovery of the evidence, while the standing threshold requires that an accused should demonstrate that his or her fundamental rights have been infringed, before or may challenge the admissibility of the disputed evidence. Failure to satisfy any of these threshold requirements entails that an accused may not rely on section 35(5). This article concludes that the South African and Canadian position in regard to the "connection" threshold is noticeably comparable, but that the Canadian approach relating to the standing threshold requirement should not be adopted by the courts of South Africa.

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