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Friday, April 1, 2005
No hard and fast rules

We have all seen it in films and on television: the tapping of phone calls, gaining access to buildings and information in clandestine fashion, unauthorised copying of documents and the like.

The question arises whether this information, often crucial to a case, can be used as evidence against someone in court.
According to Andre Vos, director at Deneys Reitz, the general rule in terms of common law is that all relevant evidence is admissible – unless there is a specific rule excluding it or the court exercises its discretion to exclude it.
Addressing delegates at Deneys Reitz’s Annual Insurance Seminar recently, he explained that in criminal cases, it is settled law that the court has the discretion to disallow evidence if admitting it would operate unfairly to the accused. “But there are no absolute rules when it comes to unlawfully obtained evidence in civil cases,” he said.
“There has been uncertainty as to whether the court, in civil cases, has the same discretion that a criminal court would in excluding evidence that has been unlawfully obtained. It is only in the last decade or so that we have had greater clarity on this.”
He cited five judgments which gave direction and clarity with regards to the discretion of the court in civil cases to exclude unlawfully gained evidence and the factors the courts would, or should, take into consideration.  In all five cases, the court reaffirmed that there was no logical or legally justifiable reason why it should not have the same discretion in a civil matter that it would in a criminal matter.
One of the cases discussed was that of Protea Technology Limited and Another v Wainer and Others in 1997. Mr Vos described this as a landmark judgment as it was the first to be decided with express reference to the Constitution and a person’s right to privacy. In essence, the Bill of Rights contained in the Constitution provides that:
• Everyone has inherent dignity and the right to have their dignity respected and protected.
• Everyone has the right to privacy.

The rights in the Bill of Rights may be limited – if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Mr Vos said that this particular case highlighted the fact that the general common law rule with regards to evidence is inconsistent with the Constitution to the extent that its point of departure is the assumption that all evidence – even if it is obtained through unlawful means – is admissible in court.
He said that in light of the Constitution, the test for admissibility should be reformulated. “Evidence obtained in breach of the Bill of Rights should only be admitted if the person relying on the information proves that it is reasonable and justifiable in an open and democratic society.
“In addition, a litigant should first exhaust all lawful remedies to obtain evidence. It could be a criminal offence to obtain evidence unlawfully. While the evidence may be admissible, the party acting unlawfully runs the risk of criminal sanction.”
In exercising its discretion whether to exclude unlawfully obtained evidence, a court will have regard to various factors, including:
• The nature of the matter;
• The availability of other lawful remedies;
• The type of evidence, and
• Whether the counter-party is suspected of suppressing or hiding information.

“There are no hard and fast rules, each case would have to be decided on its own facts,” he concluded.

Copyright © Insurance Times and Investments® Vol:18.2 1st April, 2005
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