Good Faith, Bad Faith and the Gulf Between: A Proposal for Consistent Terminology

Since the earliest days of section 24(2) jurisprudence, the phrase “good faith” has been used. For nearly as long, it has been used inconsistently. The same is true, to a lesser extent, of the phrase “bad faith.” This article traces the confusion which arises in understanding and in reasoning from the failure to restrict these phrases to single meanings. The article then proposes particular meanings for each, which would limit their applicability to extreme situations at either end of the spectrum. It is proposed that the term “good faith” should only be used in circumstances where it settles that the “seriousness of the state-infringing conduct” factor favours admission of the evidence. Conversely, “bad faith” should only be used when it settles that that factor favours exclusion. The terms should not be used if the behaviour in question does not fall so clearly to one or the other end of the spectrum.