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Fruit of the Poisonous Tree & the Exclusionary Rule

Fruit of the Poisonous Tree & the Exclusionary Rule

by | May 26, 2021 | Criminal Law

Fruit of the Poisonous Tree Exclusionary Rule:

What is the meaning of “Fruit of the Poisonous Tree” in Criminal Proceedings?

Why is Section 35(5) a fundamental constitutional right in criminal law?  

The “fruit of the poisonous tree” doctrine prohibits the State from admitting certain evidence into a criminal case after it has been tainted by a primary illegality. The doctrine is intended to prevent unlawfully acquired evidence from negatively impacting an accused person in a criminal proceeding.

It is a fundamental doctrine in any constitutional democracy as it essentially advocates that where an Accused’s right(s) has been infringed by the State such infringement(s) cannot be used by the State against the accused to prove the Accused’s guilt. Allowing this doctrine to be diluted or not to be upheld in every criminal proceeding, amounts to a mockery of the criminal law and indeed the rule of law which underpins any constitutional democracy.

Background

The “fruit of the poisonous tree” doctrine is an extension of the exclusionary rule found in constitutional democracies around the world.

In South African law, the exclusionary rule is found in section 35(5) of the Bill of Rights in the South African Constitution. Section 35(5) provides that:

“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”.

Section 35(5) is augmented by sections 38 and 39 of the Constitution which provide that:

“38. Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are –

  1. anyone acting in their own interest;
  2. anyone acting on behalf of another person who cannot act in their own name;
  3. anyone acting as a member of, or in the interest of, a group or class of persons;
  4. anyone acting in the public interest; and
  5. an association acting in the interest of its members.
  6. Interpretation of Bill of Rights

When interpreting the Bill of Rights, a court, tribunal or forum ¬

  1. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
  2. must consider international law; and
  3. may consider foreign law.

When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.”

Before the exclusionary rule came into being in South Africa, there was no particular concern for the way in which evidence was obtained by the South African government and it’s agents prior to freedom being obtained in 1994. As a general rule, ‘relevant evidence’ was admissible. This approach was followed because South African courts were required to refer to the English common law in force on 30 May 1961 with regard to the admissibility of unlawfully obtained evidence.

It is submitted that the undoubted influence of foreign law decisions in this regard will be increasingly important to South African courts when consideration of the exclusionary rule occurs. This is because the foreign law decisions have immense legal authority underpinning same due to the length of time of the foreign constitutional democracies and their case law authorities and the various legal challenges considered over the decades in countries such as the USA, UK, Canada, Germany, France and other constitutional democracies. This is not only in regard to crimes such as drug possession, drug use, drug trafficking, organised crime and racketeering but also in regard to white-collar crimes, and various common law crimes such as murder, assault, arson, manslaughter or culpable homicide, fraud, theft and armed robbery.

The exclusionary rule provides that evidence that is illegally obtained should be excluded from admission in a criminal trial. The fruit of the poisonous tree takes the assessment one step further by providing for the exclusion of evidence that stemmed from the illegal act, which is known as the poisonous tree.

For example, if there is an illegal interrogation by the police that leads to physical evidence, the exclusionary rule prohibits the introduction of the interrogation itself in the criminal proceedings and the trial of the accused. Furthermore, the physical evidence (the fruit) obtained by the illegal interrogation (the poisonous tree) is excluded because it is the yield or fruit of the illegal process.

Undoubtedly, the legalization of cannabis use and possession of same in South Africa will obviously bring the exclusionary rule and the fruit of the poisonous tree doctrine to the fore in criminal legal proceedings.

Similarly, if the police or law enforcement officer(s) coerced an admission or confession in which the accused revealed where a weapon or instrument of a crime was located and law enforcement officer(s) obtained a search warrant based on this admission or confession, the weapon or instrument will be inadmissible in evidence because it is the fruit of the poisonous tree. Likewise, the admission or confession will be inadmissible.

The purpose behind this “fruit of the poisonous tree” doctrine is to deter police and/or State misconduct in its actions using State power against it’s citizens. It is an indispensable principle of criminal law in all constitutional democracies.

Metaphorically, the original unlawful evidence obtained is considered to be the poisonous tree, and any evidence that stems from or flows from this tree is similarly tainted by the poison.

This doctrine is applied in many factual scenarios pertaining to police or law enforcement conduct, not only in regard to search and seizures but also in regard to inter alia, the planting of evidence at crime scenes, drug busts, road traffic stops, white-collar crimes.

Application of the exclusionary rule

The fruit of the poisonous tree doctrine applies to all evidence illegally obtained whether it is physical evidence, oral evidence or testimony in court or on declaration or affidavit, real evidence or documentary evidence. It also applies to evidence acquired directly from the illegal conduct or indirectly from it with certain exceptions noted below.

Invariably, the most common reason why this doctrine is applied is through a defence application on behalf of an Accused to exclude evidence, that would adversely affect the Accused’s case, which derived from an unlawful law enforcement search, seizure or illegal police conduct.

Legal Standards in USA and South Africa

The United States Supreme Court has decided a number of cases related to this doctrine. In the case of United States v. Rey, it was stated that for the exclusion of evidence to be ordered, the police misconduct must have been “sufficiently deliberate” that future similar conduct would be deterred due to the exclusion and that such future deterrence would be worth the cost to the justice system.

The doctrine is designed to deter police misconduct that is reckless, deliberate or grossly negligent. However, it can also be used to correct widespread State systemic negligence. The doctrine may not prevent all types of evidence from being admitted if it would only cause marginal deterrence.

In South African law, relevant cases which have considered and adjudicated upon the exclusionary rule directly and indirectly in terms of section 35(5) of the Bill of Rights  provide interesting insight. (rf the approach followed by Chaskalson P in S v Makwanyane 1995 2 SACR 1 (CC) dealing with the constitutionality of the death penalty. See also S v Melani 1996 2 BCLR 174 (EC) 352, where Froneman J concluded that: “It is true that courts should hold themselves accountable to the public, but that does not mean that they should seek public popularity”; Pillay v S 2004 2 BCLR 158 (SCA); Thint (Pty) Ltd v National Director of Public Prosecutions;  Zuma v National Director of Public Prosecutions 2008 ZACC 13; S v Matlou 2010 2 SACR 342 (SCA). See also:

S v Nell 2009 2 SACR 37 (C); S v Matlou 2010 2 SACR 342 (SCA); S v Dos Santos 2010 2 SACR 382 (SCA); S v Lachman 2010 2 SACR 52 (SCA); S v Mkhize 2011 1 SACR 554 (KZD). For an analogous approach by the Supreme Court of Appeal, see S v Matlou 2010 2 SACR 342 (SCA) para 31. The accused in Matlou was assaulted by the police with the aim of obtaining self-incriminating evidence against him. Additionally, his right to legal representation and his right to remain silent were infringed. After a discoverability analysis the court held that the admission of the disputed evidence would not only render his trial unfair, but its admission would also be detrimental to the administration of justice. As a result, real evidence, essential for convictions on serious charges (and which linked the accused to such charges) was excluded. Compare S v Lachman 2010 2 SACR 52 (SCA), where a discoverability analysis resulted in the admission of the disputed evidence.
See also:

S v Basson 2007 1 SACR 566 (CC) where the Constitutional Court dismissed an application based on the contention that the issue of the admissibility of bail proceedings should not have been heard before the accused had been called upon to plead.

However, compare the approach followed in S v Mkhize 2011 1 SACR 554 (KZD) para 51, where Govindasamy AJ applied an approach based on the “automatic” exclusion of unconstitutionally obtained evidence when he reasoned as follows: “I am in agreement with the learned Patel J in Viljoen‘s case: there is no discretion afforded to a judicial officer when he/she is confronted with a situation where evidence is obtained unconstitutionally. To admit such evidence, contaminated as it is, will be a violation of the accused’s rights, and, above all, will be prejudicial to the administration of justice.”)

Exceptions

  1. The Independent Source Doctrine

Even if evidence was originally discovered by an unlawful search, the evidence can still be admitted in some cases. This can occur when the same evidence is obtained in an independent manner that was not tainted by the primary illegality.

The court assesses whether the evidence that is at stake was discovered by exploitation of the primary and initial illegality or if it was uncovered by independent means that are sufficiently purged of the primary illegality. Because evidence that is acquired through an independent source is not fruit of the poisonous tree, it is not required to be excluded.

For example, in one case, an officer entered a home illegally without a valid search warrant. An application for a search warrant was later obtained that was based on factual information that did not rely on the officer’s illegal entry. Evidence was seized from the home. The court ruled that the evidence did not need to be excluded, despite the illegal search.

The independent source doctrine is not affected by the public policy concerns of the fruit of the poisonous tree doctrine. For example, courts are not concerned with deterring future misconduct when the evidence is independently acquired without relation to the evidence being tainted. Instead, this doctrine allows police to return to the same position as they would have been had there never been any illegal taint.

  1. Other Exceptions 

One more exception to the fruit of the poisonous tree doctrine is inevitable discovery.

This exception does not require the exclusion of the illegally-obtained evidence if it was inevitable that it would have eventually been discovered by law enforcement. This means that the police would have found the evidence even without the illegal search been conducted illegally or unlawfully.

A further exception to the exclusionary rule itself is good faith. If the court finds that a police or law enforcement officer believed in good faith, that a search was legal, the court may not exclude the evidence in the criminal trial. There are guiding principles in this regard.

As aforementioned, the legalization of cannabis use and possession of same in South Africa will obviously bring the section 35(5) of the Bill of Rights, the exclusionary rule and the fruit of the poisonous tree doctrine to the fore in criminal legal proceedings. It is inevitable.

Put another way, either evidence is legally obtained or it is not. Fostering of grey areas in the law cannot be of any use to the proper and just administration of justice in the public interest.

It is critical to note and accept that the constitutional rights entrenched in the Bill of Rights are rights which many people have bled and died for over the years of human rights abuses and atrocities committed in South Africa.

Consequently, the rights entrenched in the Bill of Rights should always be upheld to be absolute, failing which the Bill of Rights is not worth the paper it is written on.

This is equally applicable to violations of these rights and the awarding of damages in regard to same where in civil suits the awarding of substantially significant constitutional damages shall clearly spell out to all and sundry the importance of these rights.

Has the time not come to implement punitive damages in South African law to give effect to the rights which so many people have bled and died for?

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The Bill of Rights to the Constitution of South Africa

The Bill of Rights to the Constitution of South Africa

by | Mar 16, 2021 | Constitutional Law

Bill of Rights to the Constitution of South Africa

  1. The Bill of Rights to the Constitution of South Africa is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
  2. The state must respect, protect, promote and fulfil the rights in the Bill of Rights to the Constitution of South Africa.
  3. The rights in the Bill of Rights to the Constitution of South Africa are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

Application

  1. The Bill of Rights to the Constitution of South Africa applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
  2. A provision of the Bill of Rights to the Constitution of South Africa binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
  3. When applying a provision of the Bill of Rights to the Constitution of South Africa to a natural or juristic person in terms of subsection (2), a court ¬
    a. in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
    b. may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).
  4. A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.

9. Equality

  1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
  2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
  3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
  4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
  5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

10. Human dignity
Everyone has inherent dignity and the right to have their dignity respected and protected.

11. Life
Everyone has the right to life.

12. Freedom and security of the person

  1. Everyone has the right to freedom and security of the person, which includes the right ¬
    a. not to be deprived of freedom arbitrarily or without just cause;
    b. not to be detained without trial;
    c. to be free from all forms of violence from either public or private sources;
    d. not to be tortured in any way; and
    e. not to be treated or punished in a cruel, inhuman or degrading way
  2. Everyone has the right to bodily and psychological integrity, which includes the right ¬
    a. to make decisions concerning reproduction;
    b. to security in and control over their body; and
    c. not to be subjected to medical or scientific experiments without their informed consent.

13. Slavery, servitude and forced labour
No one may be subjected to slavery, servitude or forced labour.

14. Privacy
Everyone has the right to privacy, which includes the right not to have ¬

  1. their person or home searched;
  2. their property searched;
  3. their possessions seized; or
  4. the privacy of their communications infringed.

15. Freedom of religion, belief and opinion

  1. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
  2. Religious observances may be conducted at state or state-aided institutions, provided that ¬
    a. those observances follow rules made by the appropriate public authorities;
    b.they are conducted on an equitable basis; and
    c. attendance is free and voluntary.
  3. This section does not prevent legislation recognising ¬
    a. marriages concluded under any tradition, or a system of religious, personal or family law; or
    b. systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
    c. Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

16. Freedom of expression

  1. Everyone has the right to freedom of expression, which includes ¬
    a. freedom of the press and other media;
    b. freedom to receive or impart information or ideas;
    c. freedom of artistic creativity; and
    d. academic freedom and freedom of scientific research.
  2. The right in subsection (1) does not extend to ¬
    a. propaganda for war;
    b. incitement of imminent violence; or
    c. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

17. Assembly, demonstration, picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

18. Freedom of association
Everyone has the right to freedom of association.

19. Political rights

  1. Every citizen is free to make political choices, which includes the right ¬
    a. to form a political party;
    b. to participate in the activities of, or recruit members for, a political party; and
    c. to campaign for a political party or cause.
  2. Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
  3. Every adult citizen has the right: ¬
    a. to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
  4. to stand for public office and, if elected, to hold office.

20. Citizenship
No citizen may be deprived of citizenship.

21. Freedom of movement and residence

  1. Everyone has the right to freedom of movement.
  2. Everyone has the right to leave the Republic.
  3. Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.
  4. Every citizen has the right to a passport.

22. Freedom of trade, occupation and profession
Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

23. Labour relations

  1. Everyone has the right to fair labour practices.
  2. Every worker has the right ¬
    a. to form and join a trade union;
    b.to participate in the activities and programmes of a trade union; and
    c. to strike.
  3. Every employer has the right ¬
    a. to form and join an employers’ organisation; and
    b. to participate in the activities and programmes of an employers’ organisation.
  4. Every trade union and every employers’ organisation has the right ¬
    a. to determine its own administration, programmes and activities;
    b. to organise; and
    c. to form and join a federation.
  5. Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).
  6. National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

24. Environment
Everyone has the right ¬

    1. to an environment that is not harmful to their health or well-being; and
    2. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that ¬
      a. prevent pollution and ecological degradation;

b. promote conservation; and
c. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

25. Property

    1. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
    2. Property may be expropriated only in terms of law of general application ¬
      a. for a public purpose or in the public interest; and
      b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
    3. The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including ¬

a. the current use of the property;
b. the history of the acquisition and use of the property;
c. the market value of the property;
d. the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
e. the purpose of the expropriation.

  1. For the purposes of this section ¬
    a. the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
    b. property is not limited to land.
  2. The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
  3. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
  4. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
  5. No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
  6. Parliament must enact the legislation referred to in subsection (6).

26. Housing

  1. Everyone has the right to have access to adequate housing.
  2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
  3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

27. Health care, food, water and social security

  1. Everyone has the right to have access to ¬
    a. health care services, including reproductive health care;
    b. sufficient food and water; and
    c. social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.
  2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.
  3. No one may be refused emergency medical treatment.

28. Children

  1. Every child has the right ¬
    a. to a name and a nationality from birth;
    b. to family care or parental care, or to appropriate alternative care when removed from the family environment;
    c. to basic nutrition, shelter, basic health care services and social services;
    d. to be protected from maltreatment, neglect, abuse or degradation;
    e. to be protected from exploitative labour practices;
    f. not to be required or permitted to perform work or provide services that ¬
    1. are inappropriate for a person of that child’s age; or
    2. place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;
    g. not to be detained except as a measure of last resort, in which case, in addition to the
    rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be ¬
    1. kept separately from detained persons over the age of 18 years; and
    2. treated in a manner, and kept in conditions, that take account of the child’s age;
    h. to have a legal Attorney-at-Law assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
    a. not to be used directly in armed conflict, and to be protected in times of armed conflict.
  2. A child’s best interests are of paramount importance in every matter concerning the child.
  3. In this section “child” means a person under the age of 18 years.

29. Education

  1. Everyone has the right ¬
    1. to a basic education, including adult basic education; and
    2. to further education, which the state, through reasonable measures, must make progressively available and accessible.
  2. Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account ¬
    1. equity;
    2. practicability; and
    3. the need to redress the results of past racially discriminatory laws and practices.
  3. Everyone has the right to establish and maintain, at their own expense, independent educational institutions that ¬
    1. do not discriminate on the basis of race;
    2. are registered with the state; and
    3. maintain standards that are not inferior to standards at comparable public educational institutions.
  4. Subsection (3) does not preclude state subsidies for independent educational institutions.

30. Language and culture
Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

31. Cultural, religious and linguistic communities

  1. Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community ¬
    1. to enjoy their culture, practise their religion and use their language; and
    2. to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
  2. The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

32. Access to information

  1. Everyone has the right of access to ¬
    1. any information held by the state; and
    2. any information that is held by another person and that is required for the exercise or protection of any rights.
  2. National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

33. Just administrative action

    1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
    2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
    3. National legislation must be enacted to give effect to these rights, and must ¬
      1. provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
      2. impose a duty on the state to give effect to the rights in subsections (1) and (2); and
      3. promote an efficient administration.

34. Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

35. Arrested, detained and accused persons

      1. Everyone who is arrested for allegedly committing an offence has the right ¬
        1. of the right to remain silent; and
        2. of the consequences of not remaining silent;
        1. 48 hours after the arrest; or
        2. the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;
        3. at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and
        4. to be released from detention if the interests of justice permit, subject to reasonable conditions.
        1. to remain silent;
        2. to be informed promptly ¬
        3. not to be compelled to make any confession or admission that could be used in evidence against that person;
        4. to be brought before a court as soon as reasonably possible, but not later than ¬
      2. Everyone who is detained, including every sentenced prisoner, has the right ¬
        1. spouse or partner;
        2. next of kin;
        3. chosen religious counsellor; and
        4. chosen medical Attorney-at-Law.
        1. to be informed promptly of the reason for being detained;
        2. to choose, and to consult with, a legal Attorney-at-Law, and to be informed of this right promptly;
        3. to have a legal Attorney-at-Law assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
        4. to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
        5. to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and to communicate with, and be visited by, that person’s ¬
      3. Every accused person has a right to a fair trial, which includes the right ¬
        1. to be informed of the charge with sufficient detail to answer it;
        2. to have adequate time and facilities to prepare a defence;
        3. to a public trial before an ordinary court;
        4. to have their trial begin and conclude without unreasonable delay;
        5. to be present when being tried;
        6. to choose, and be represented by, a legal Attorney-at-Law, and to be informed of this right promptly;
        7. to have a legal Attorney-at-Law assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
        8. to be presumed innocent, to remain silent, and not to testify during the proceedings;
        9. to adduce and challenge evidence;
        10. not to be compelled to give self-incriminating evidence;
        11. to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
        12. not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
        13. not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;
        14. to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
        15. of appeal to, or review by, a higher court.
      4. Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.
      5. 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.

36. Limitation of rights

      1. The rights in the Bill of Rights to the Constitution of South Africa may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:
        1. the nature of the right;
        2. the importance of the purpose of the limitation;
        3. the nature and extent of the limitation;
        4. the relation between the limitation and its purpose; and
        5. less restrictive means to achieve the purpose.
      2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

37. States of emergency

      1. A state of emergency may be declared only in terms of an Act of Parliament, and only when ¬
        1. the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
        2. the declaration is necessary to restore peace and order.
      2. A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only ¬
        1. prospectively; and
        2. for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.
      3. Any competent court may decide on the validity of ¬
        1. a declaration of a state of emergency;
        2. any extension of a declaration of a state of emergency; or
        3. any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
      4. Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that ¬
        1. is consistent with the Republic’s obligations under international law applicable to states of emergency;
        2. conforms to subsection (5); and
        3. is published in the national Government Gazette as soon as reasonably possible after being enacted.
        1. the derogation is strictly required by the emergency; and
        2. the legislation ¬
      5. No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other act ion taken in consequence of a declaration, may permit or authorise ¬
        1. indemnifying the state, or any person, in respect of any unlawful act;
        2. any derogation from this section; or
        3. any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.

Table of Non-Derogable Rights

1 Section Number 2 Section Title 3 Extent to which the right is protected
9 Equality With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language
10 Human Dignity Entirely
11 Life Entirely
12 Freedom and Security of the person With respect to subsections (1)(d) and (e) and (2)(c).
13 Slavery, servitude and forced labour With respect to slavery and servitude
28 Children With respect to:
– subsection (1)(d) and (e);
– the rights in subparagraphs (i) and (ii) of subsection (1)(g); and
– subsection 1(i) in respect of children of 15 years and younger
35 Arrested, detained and accused persons With respect to:
– subsections (1)(a), (b) and (c) and (2)(d);
– the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d)
– subsection (4); and
– subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair.
        1. Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:
          1. An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained.
          2. A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee’s name and place of detention and referring to the emergency measure in terms of which that person has been detained.
          3. The detainee must be allowed to choose, and be visited at any reasonable time by, a medical Attorney-at-Law.
          4. The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative.
          5. A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.
          6. A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.
          7. The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal Attorney-at-Law at those hearings, and to make representations against continued detention.
          8. The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention.
        2. If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.
        3. Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.

38. Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are –

        1. anyone acting in their own interest;
        2. anyone acting on behalf of another person who cannot act in their own name;
        3. anyone acting as a member of, or in the interest of, a group or class of persons;
        4. anyone acting in the public interest; and
        5. an association acting in the interest of its members.

39. Interpretation of the Bill of Rights to Constitution of South Africa

        1. When interpreting the Bill of Rights, a court, tribunal or forum ¬
          1. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
          2. must consider international law; and
          3. may consider foreign law.
        2. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

The Bill of Rights to the Constitution of South Africa does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.