About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 572
|
|
S v Coetzee (A90/2010) [2010] ZAGPPHC 572 (11 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case no: A90/2010
Date: 11 February
2010
Not reportable
Not of interest to
other judges
High Court Ref No.:
1596
Magistrate's Serial
No.: 2/09
Case No.: SHS19/2008
MAGISTRATE
MPUMALANGA (held
at MIDDELBURG)
THE STATE v RIAAN
COETZEE
REVIEW JUDGMENT
SOUTHWOOD J
[1]
This is a special review in terms of section 304 of Act 51 of 1977
(‘the Act’) in respect of the appointment of
an
intermediary in terms of section 170A(1) of the Act in a case where
the accused is charged with rape,
crimen
iniuria
and
indecent assault and the victim is about 7 years old. Despite the
fact that the accused does not oppose the appointment of an
intermediary to assist the complainant the appointment of the
intermediary is questioned because the state did not formally apply
for the intermediary to be appointed.
[2] The appointment
of an intermediary in terms of the Act takes place in terms of
section 170A(1) which reads as follows:
‘
Whenever
criminal proceedings are pending before any court and it appears to
such court that it would expose any witness under the
biological or
mental age of 18 years to undue mental stress or suffering if he or
she testifies at such proceedings, the court
may, subject to
subsection (4), appoint a competent person as an intermediary in
order to enable such witness to give his or her
evidence through that
intermediary.’
It will be noted
that no procedure is provided for the appointment of an intermediary
and the Act does not provide expressly or
by implication that the
state must apply, formally or informally, for the appointment. There
is also no clear indication in the
subsection that the accused can
object to the appointment, and if so, what procedure must be followed
in dealing with such an objection.
[3]
In
Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development, and Others
2009 (2) SACR 130
(CC)
the
Constitutional Court dealt exhaustively with the constitutionality,
meaning and implementation of section 170A(1) of the Act.
With regard
to implementation the court stated that while the subsection
contemplates an assessment of the child prior to testifying
and a
formal application by the state if the appointment of an intermediary
is indicated (para 111), that this is the procedure
that ordinarily
should be followed in all matters involving child complainants in
sexual offence cases (para 112) it remains the
duty of the court to
consider whether an intermediary is required - the judicial officer
must of his or her own accord raise the
need for an intermediary to
assist the child where the prosecutor does not raise the matter
(paras 113 and 114). The court also
emphasised that the enquiry does
not involve a burden of proof. The court will appoint an intermediary
where this is necessary
to protect the constitutional rights of the
child. From the Constitutional Court's review of the effect of court
proceedings, particularly
in a case of sexual assault, on a child, it
seems axiomatic that a complainant of 7 years old will require the
assistance of an
intermediary (paras 100-109). This does not mean
that the court cannot or should • not receive evidence on the
issue.
[4] The state was
not required to apply for the appointment of an intermediary in terms
of section 170A(1) of the Act. The court
was obliged to consider the
issue and make an appointment even if the state did not address the
issue. If the accused does not
object to the appointment of an
intermediary it is not clear why he insists on compliance with the
subsection.
[5] The learned
regional magistrate should enquire from the accused precisely why the
issue is raised now and then deal with the
issue in the light of the
Constitutional Court judgment.
[6] The papers are
returned to the regional magistrate for the matter to proceed.
B.R. SOUTHWOOD
JUDGE OF THE HIGH
COURT
I agree
E. BERTELSMANN
JUDGE OF THE HIGH
COURT