Illegally or unconstitutionally obtained evidence: a South African perspective

Illegally or unconstitutionally obtained evidence: a South African perspective
\nThis article is based on a national report to an international conference of the International Association of Procedural Law rendered. The contribution focuses on recent developments in the South African case law regarding the admissibility of illegally or unconstitutionally obtained evidence. Considerable attention is given to the position in criminal cases and the impact of Canadian case law on the courts. In this regard it is particularly important to note the latest approach on the admissibility of real evidence obtained so that accepted the Canadian Supreme Court. In light of the weight that our courts to attach Canadian rulings on constitutional issues, the development likely to have an influence on our judgment. The first article outlines briefly the background of the South African law of evidence and the handling of illegally obtained evidence to the subject for a foreign reader in perspective. Criminal cases are first in line and in this context the focus on the content and application of Article 35 (5) of the Constitution. Because of the influence of Canadian case law on our judgment, attention is focused on a three rulings of the High Court Canadians, namely R v Collins, R v Stillman and R v Grant. The Grant- decision is particularly important because the court in this matter A new approach followed regarding the admissibility of real evidence was obtained in contravention of the provisions of the Canadian charter. In short, this means that the court in R v Grant the approach in R v Stillman rejected and a new framework proposed in which courts Article 24 (2) of the charter should apply. The Stillman approach entailed that for purposes of the inquiry to the fairness of the trial the distinction between real and communicative evidence as irrelevant considered. The only question was whether the evidence - real or communicative - in a forced way acquired. In R v Stillman is also dispensed with the rule that the privilege against self-incrimination only applies to communicative evidence. The Stillman -beslissing evoked justifiable criticism in both Canada and South Africa. Unfortunately, the Supreme Court of Appeal in S v Tandwa the Stillman -beslissing result and Collins approach, according to which the distinction between real evidence and communicative evidence maintained rejected. The Grant -beslissing impose a broad flexible approach down within said distinction in the context of the fair trial query can still play a role. The hope is expressed that the highest court of appeal, submitted to the next occasion when this issue before the court, his back to S v Tandwa will turn and careful consideration to the judgment in R v Grant will give. 
\nThe position in civil cases concerning improperly or illegally / unconstitutionally obtained evidence is discussed below. The focus is mainly on case law on this issue since the new constitutional dispensation came into force. Two issues of importance in the context Lotter v Arlow and Fedics Group (Pty) Ltd v Matus.
\nIn conclusion it is pointed out that the rules governing the admissibility of illegally or unconstitutionally obtained evidence regulates aimed the rights of the accused in a criminal case and to protect the parties in civil cases. The rules also aim to serve the interests of justice. It can also happen, however, in both criminal and civil cases, that evidence has been obtained on the controversial manner, yet are allowed. In a criminal case may such a finding is affected because of the bona fide actions of the police, while in a civil case the unlawful conduct of the party objection to the evidence the foundation can provide for. The task of the court is to maintain a balance between the conflicting interests by all circumstances into consideration.

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