Judicial discretion to exclude evidence in terms of s35(5) of the Constitution: S v Hena 2006 2 SACR 33 (SE)

In this case the court was called upon to exclude certain evidence against one of the accused in terms of s 35(5) of the Constitution of the Republic of South Africa, 1996. This section provides as follows: 'Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.' It will be apposite, before discussing the present case, to do a brief analysis of s 35(5) and to refer to s 24(2) of the Canadian Charter of Rights and Freedoms, upon which the former section appears to be modelled (Steytler Constitutional Criminal Procedure (1998) 34; S v Naidoo 1998 1 SACR 479 (N) at 527g).