Constitutional exclusion under s 35(5) of the Constitution: should an accused bear a 'threshold burden' of proving that his or her constitutional right has been infringed?
Bibliographic record
Abstract
This article examines the incidence of a threshold burden of proof in admissibility challenges based on s 35(5) of the South African Constitution. The following question is asked: Should the accused bear the onus of showing that his or her fundamental right has been infringed during the evidence gathering process, or should the prosecution bear the burden of proving that the disputed evidence has been obtained in a constitutional manner? South African case law and the opinions of scholarly writers are incompatible on this issue. This article explores the conflicting lines of reasoning followed by the Supreme Court of Appeal in Director of Public Prosecutions, Transvaal v Viljoen, and the full bench decision of the Transvaal Provincial Division (now Northern Gauteng) in S v Mgcina. The author concludes that, having regard to a contextual interpretation of s 35(5) and the textual differences between s 24(2) of the Canadian Charter and s 35(5), the accused should not be saddled with a threshold burden. The prosecution should therefore bear the onus of showing that the evidence has been obtained in a constitutional manner, once the accused alleges that it has been obtained in violation of his or her rights.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.002 | 0.002 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.001 | 0.016 |
| Scholarly communication | 0.000 | 0.001 |
| Open science | 0.001 | 0.000 |
| Research integrity | 0.000 | 0.001 |
| Insufficient payload (model declined to judge) | 0.001 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; both teacher heads agree on what is shown here.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".