Comment: Pillay and Others v S: Trial fairness; the doctrine of discoverability; and the concept of 'detriment'—the impact of the Canadian s 24 (2) provision on South African s 35 (5) jurisprudence

• Jurisdiction: South Africa
• Author: Dane Ally
• Date: 16 August 2019
• Citation: (2005) 18 SACJ 66
• Published date: 16 August 2019
• Pages: 66-76

COMMENTS

Pillay and Others v S: Trial fairness;

the doctrine of discoverability;

and the concept of ‘detriment’ ––

the impact of the Canadian s 24 (2)

provision on South African s 35 (5)

jurisprudence

DANE ALLY

Tshwane University of Technology (Department of Law)

1 Introduction

The case of Pillay and Others v S 2004 (2) BCLR 158 (SCA) is a criminal

appeal launched by four accused persons convicted of robbery. The main

focus of this contribution entails a discussion of s 35(5) of the Constitution

of the Republic of South Africa Act 108 of 1996, as interpreted by the

Supreme Court of Appeal in that case. The appeal of accused number

10 (hereinafter the accused) will accordingly constitute the core of the

discussion. Section 35(5) 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.’

The court considered three issues: f‌i r st, whether the evidence was obtained

in violation of any of the provisions of the Bill of Rights; secondly, whether

the unconstitutionally obtained real evidence would render the trial unfair

if admitted; and thirdly, whether the admission of the real evidence would

have a detrimental effect on the administration of justice.

2 Factual background to legal issues

SBV Services in Durban was robbed of a sum of R31 million by a group

of seven people. The perpetrators used mobile telephones during the

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(2005) 18 SACJ 66

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