Admissibility of evidence found unlawfully

In Ndlovu and Others v S [2021] 1 All SA 538 (ECG) whether the trial court, acting in terms of s 35(5) of the Constitution, correctly allowed physical evidence found as a result of the unlawful search of a premises to become part of the evidential material placed before it by the state.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Admissibility of evidence found as result of unlawful search: In Ndlovu and Others v S [2021] 1 All SA 538 (ECG) the appellants were charged in the High Court with various charges arising from ten incidents of rhino poaching that occurred over a period of three years at various farms and nature reserves. They were convicted on almost all the charges and were sentenced to lengthy periods of imprisonment, resulting in an effective sentence of 25 years’ imprisonment. They unsuccessfully applied for leave to appeal against their convictions and the sentences imposed but were granted leave on petition on two limited and narrowly defined grounds.

The questions on appeal were whether –

• the trial court, acting in terms of s 35(5) of the Constitution, correctly allowed physical evidence found as a result of the unlawful search of a premises to become part of the evidential material placed before it by the state; and
• or not the cumulative effect of the sentences imposed by the trial court rendered the sentences shockingly disproportionate.

Regarding the first question, it was common cause that the police had entered and searched a chalet in which the appellants were present without a search warrant. The trial court found that the admissibility of evidence that has been obtained in a manner that violates rights guaranteed in s 35(5) of the Constitution unlawful. Section 35(5) envisages a two-step process. First, the evidence sought to be excluded must have been obtained in a manner that infringed on a right guaranteed by the Bill of Rights. If it is found that the impugned evidence was so obtained, the second step is to determine whether the admission of the evidence will render the trial unfair. The section does not provide for the automatic exclusion of evidence that was obtained in violation of a protected right. The court, as per Van Zyl DJP (Griffiths and Roberson JJ concurring), held that the appellants were not in any way compelled to participate in the discovery of the articles in the chalet. Further, the breach of the appellant’s right to privacy did not operate to undermine the reliability of the evidence. The articles were relevant real evidence that existed independently of any of the actions of the police officials and would have been revealed independently of the appellant’s right to privacy. Accordingly, the admission of the evidence did not render the trial unfair. The determination of whether the admission of the evidence would be detrimental to the administration of justice required a value judgment. The court was satisfied that the trial court correctly found that the evidence ought to be admitted, as its exclusion would cause harm to the administration of justice.

It was also not found that the sentences imposed were too harsh.

The appeal was dismissed.

Merilyn Rowena Kader
Legal Editor at LexisNexis