January 18, 2017

Admissible in court?

James Bush

Section 35(5) of the Constitution of the Republic of South Africa protects individuals’ right to fair trial. Under this right, such things as the right to remain silent, the privilege against self-incrimination and the right to be presumed innocent are protected. The Constitution also protects various other rights such as privacy and free speech, to name a few. As a result of the above, any evidence obtained in violation of any right, as contained in the Constitution, is inadmissible in a court or law, as a general rule. This, however, does not mean that once a constitutional right is violated in an attempt to get evidence, said evidence is automatically inadmissible.

In order for evidence to be excluded on constitutional grounds two questions will be asked by the court: whether admission of such evidence would render the trial unfair OR be detrimental to the administration of justice. In answering the first question, the court must exercise its discretion and ask whether admitting the evidence would infringe the accused’s constitutional rights; this is determined on the facts of each case. In considering what amounts to a fair trial the court must consider, according to S v Thilo, “At the heart of the right to a fair criminal trial… is for justice to be done and also seen to be done… in considering what… lies at the heart of a fair trial in the field of criminal justice, one should bear in mind that dignity, freedom and equality are foundational values of our constitution. An important aim… is to ensure adequately that innocent people are not wrongly convicted.”

In answering the second question the court must find a balance between respect for the Bill of Rights and respect for the judicial process. In finding this balance certain factors must be take into account, such as the high crime rate, the public’s reaction to excluding relevant evidence, long term values versus the crime wave and whether the police acted in good or bad faith in the actions taken to obtain the evidence.

Only if the above two questions are answered in the affirmative can a court move onto the third and final question: Was there a causal link between the violation of rights and the procurement of evidence? Again, this is decided on the facts of each case. Such a link would not exist should there have been a break in the chain of events from the procurement of evidence to the presentation of evidence in court. For example, in the case of S v Mark a number of prisoners were assaulted by police in order to obtain information about the death of a fellow prisoner. The court allowed the evidence, despite the violation of the prisoners’ constitutional rights, as there was a break in the chain of events. Testimony was given voluntarily at the time; two of the prisoners were free at the time of testimony and one was released during the trial. This meant the prisoners were not under any form of duress and testified voluntarily. In the case of S v Mthembu in which an accused was charged with theft after he had stolen two vehicles, the accused was arrested after an accomplice pointed out the stolen vehicles and gave the police information on the crime after being tortured. The accomplice then turned state witness and testified in court. This testimony was not accepted by the court as there was a direct link to the violation of the accomplice’s constitutional rights (the torture) and the testimony as said testimony was not voluntary, as he was a State witness, and could not depart from his original testimony, as doing so would cause him to lose his immunity.

Mark and Mthembu are distinguishable on the basis of the voluntariness of the testimony in court. In the first case there was no impediment to the witnesses completely changing their story and saying another person did it, where as in the second case the witness had to repeat what he said in his original statement, or lose his immunity as a State witness.

If all of the above questions are answered in the affirmative the court will have to exclude the evidence on the basis that it was unconstitutionally obtained.

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