The Judical Officer - Dec 07 - Joasa.org.za

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In Fose v v Minister of Safety and Security 1997 (3) (3) SA SA 786 786 (CC) (CC); (CC) 1997 (7) BCLR
851 851 (CC) (CC) it was said that if a fundamental right is infringed, it is possible that both
* delictual damages; and
* constitutional damages
may be awarded (De Waal et al 1999:181).
7.2.3 Exclusion of evidence
7.2.3.1 With regard to a civil case
Evidence which is obtained in a manner that violates a fundamental right, must be
excluded if the admission admission of this evidence
* would render the trial unfair; or
* would be detrimental to the administration of justice (cf. De Waal et al 1999:183).
(See Schwikkard et al 2002:249 to 251 for a discussion on the admission of
unconstitutionally unconstitutionally obtained obtained evidence evidence.) evidence
7.2.3.2 With regard to a criminal case
Section 35(5) of the Constitution stipulates that evidence which is obtained in a manner
that violates a fundamental right, must be excluded if the admission of this evidence
* would render the trial unfair; or
* would be detrimental to the administration of justice (cf. De Waal et al 1999: 183).
Note that the procedure to follow is that the court must hold a trial within a trial (Du
Toit et al 24-98L). (For a discussion on the admission of unconstitutionally unconstitutionally unconstitutionally obtained
obtained
evidence evidence, evidence see Du Toit et al 24-98H to 24-98O and Schwikkard et al 2002:167-248.)
7.2.4 Administrative law remedies
In Maharaj Maharaj v v Chairman Chairman of of the the Liquor Liquor Board Board 1997 1997 (1) (1) SA SA 273 273 (N); (N)
(N) BCLR 248 248 (N) it
was decided that