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[2019] ZAWCHC 101
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M v S (A343/2018) [2019] ZAWCHC 101; [2019] 4 All SA 110 (WCC); 2020 (1) SACR 241 (WCC) (14 May 2019)

OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
Case
No:  A343/2018
In
the matter between:
M
Appellant
And
STATE
Respondent
Heard:
7 December 2018
Delivered:
14 May 2019
JUDGMENT
SEALE,
AJ
THE
CHARGES
1.
The appellant was charged with the contravention of section 3 read
with sections 1, 55, 56(1), 57, 58, 59, 60 and 61 of the Criminal
Law
Amendment Act (Sexual Offences and Related Matters) No. 32 of 2007,
read with
sections 256
,
257
and
281
of the
Criminal Procedure Act No
51 of 1977
, the provisions of
section 51
, Schedule 2 of the
Criminal
Law Amendment Act, No. 105 of 1997
, as amended by Act 38 of 2007 as
well as sections 92(2) and 94 of the Criminal Procedure Act No. 105
of 1977 (“the CPA”),
Schedule 2 Part 1.
2.
In short, the accused was charged with the rape of his eleven-year
old daughter.  He was convicted of attempted rape, a
competent
verdict in terms of section 51(1) of the CPA, and he was sentenced to
a term of eight years direct imprisonment.
3.
The appellant appeals to this court against both the conviction and
the sentence, with the leave of the court
a quo
.
4.
In order to protect the complainant, the name of her father has been
removed from this judgment as it will become a public document.
THE
TRIAL
5.
After the charges were put to him, the appellant who was represented
throughout the trial proceedings, pleaded not guilty and
denied all
of the elements of the charge brought against him.
Subsequently, however, the appellant formally admitted that
the
complainant is his biological daughter and that she was 11 years of
age at the time. He made further formal admissions concerning
the DNA
evidence during the trial.
6.
The state called and led the evidence of three witnesses:
6.1 the complainant;
6.2 Ms X, the “first
reporter”, who is a teacher at the complainant’s school
and who has known the complainant
for several years;
6.3 Dr Ashaman Narula who
is a qualified medical doctor practising as a clinical forensic
medical practitioner at the Heideveld
Thuthuzela Centre.
7.
The state also presented,
inter alia
, the following
documentary evidence which was admitted by the appellant:
7.1 the “Report by
Authorised Medical Practitioner” completed by Dr Narula;
7.2 the affidavit in
terms of
section 212
of the
Criminal Procedure Act in
respect of DNA
testing carried out on material found in the complainant’s
undergarment;
7.3 forensic evidence in
the form of DNA results and the chain of evidence affidavits.
8.
At the close of the state’s case, the appellant elected to
exercise his right to silence, gave no evidence and did not
call any
witnesses.
THE
FACTS
9.
The complainant gave evidence via CCTV at the commencement of the
trial, on 24 May 2017.  After a few minutes of evidence,

however, she became too emotionally upset to continue and the matter
was adjourned in order to give her time to compose herself.

Later that day, as she was still unable to testify, the matter was
postponed.
10.
The complainant attended court at the next hearing, but was not
afforded the opportunity to complete her evidence as the matter
was
postponed at the request of the accused, on the grounds that he was
ill.  The trial was thereafter repeatedly postponed
for various
reasons. Ultimately the matter came before court on more than twenty
occasions.  I deal with the repeated postponements
of the trial
in another context hereinbelow.
11.
It subsequently emerged that the complainant’s mother was
either unwilling or unable to ensure her daughter’s return
to
court and, as a consequence of her young age and her dependency on
her mother’s assistance in this regard, the complainant
never
completed her evidence in chief and was never cross-examined.
12.
For obvious reasons, these events could have occasioned a significant
failure to achieve justice for the complainant.
An important
consequence of her not completing her evidence was that the court
a
quo
could not, and did not, consider any of her evidence in
determining the guilt of the appellant. The matter was therefore
decided
without reference to the complainant’s evidence.
13.
Ms X, the first reporter, gave evidence after having attended at the
court on two previous occasions when she had not been called
to give
evidence.  The first reporter, testified that she knew the
complainant and had, three years before, taught the complainant
as
her class teacher.  She also coached the complainant at netball.
14.
Ms X’s evidence was that during May 2016, the day after a
netball match, she saw the complainant standing at the door
of her
classroom crying.  The complainant was inconsolable and cried
for a long time.  In addition to direct evidence
of her own
observations, hearsay evidence was also given, without objection from
the appellant, as to what was reported to her
by the complainant.
15.
The complainant described to Ms X what had been done to her by her
father during the course of the previous night when she had
slept
over at his home after the netball match.  None of this
evidence, whether direct or hearsay, about what was done to
the
complainant by the appellant was challenged during cross-examination.
As a matter of principle, while there might have
been an
objection to the hearsay evidence, no objection could be made to the
evidence of the first reporter’s own observations.
16.
The evidence confirmed that on the same day, the complainant was
taken to the Heideveld Thuthuzela Centre where Dr Ashaman Narula,
a
clinical forensic medical practitioner with specific training in the
field of sexual offences forensics, examined the complainant
and
prepared a report.
17.
Dr Narula gave evidence at the trial, also only on her third
attendance at court.  Her evidence confirmed that she had

completed the J88 form after having examined the complainant on 20
May 2016, the day following the incident.
18.
Dr Narula found evidence of fresh injuries to the vaginal and anal
areas of the complainant in the form of tears, redness and
bruising.
She stated that the injuries were compatible with recent, forced, or
attempted, penetration with a penis or an
object.  She confirmed
that these injuries were caused by blunt force trauma and she
observed that there were no old injuries.
Penetration, in her
view, was possibly only superficial, and, based on the nature of the
injuries, she was of the opinion that
the assault constituted an
attempted rape.
19.
It was reported to Dr Narula that the complainant was wearing the
same underwear as the night before and this garment was tested
for
DNA.  The results confirmed that the appellant’s DNA was
found in the complainant’s underwear.
20.
The evidence of Dr Narula was not materially disputed during
cross-examination.  There was in fact no challenge at all
to the
evidence concerning the nature of the injuries and the probable cause
of the injuries.  No dispute was raised about
the underwear
evidence at all.  The appellant subsequently also confirmed the
content and accuracy of the DNA report, which
was later handed in as
an exhibit.
21.
After the prosecution closed its case, the appellant elected to do
the same, without giving any evidence.  The court
a quo,
in its judgment, stated that it would ignore the evidence of the
complainant and it decided the matter on the basis of the
circumstantial
evidence only.
22.
As mentioned, the evidence of the injuries and the fact that the
injuries suffered by the complainant had been caused by a sexual

assault was not disputed.  That the complainant had been
sexually assaulted was specifically conceded on behalf of the
appellant
during argument, as was the fact that the appellant’s
DNA was found in the complainant’s underwear.  The only
remaining issue in dispute then was whether it had been the appellant
who had committed the sexual assault.
23.
It was argued on the appellant’s behalf, that the
abovementioned circumstantial evidence was insufficient to support a

conviction of the appellant.  The appellant’s
representative argued that there were other inferences that might be
drawn from the facts and that a conviction should not follow.
24.
The appellant, however, could not and did not, point to any other
inference that might reasonably be drawn from the abovementioned
set
of facts.  Not a single, alternative explanation was put up on
his behalf.  The court
a quo
therefore found, correctly
in my view, that the only reasonable inference to be drawn was that
the appellant had sexually assaulted
his own daughter.
25.
This conclusion is supported by the principles to be applied in
considering circumstantial evidence, which were discussed in
S v
Nduna
2011 (1) SACR 115
(SCA), where the court held (in that case
regarding finger print evidence) as follows:
“
[14] Counsel
for the appellant argued that the inference of guilt was not the only
possible inference to be drawn from the circumstantial
evidence
presented in the case (R v Blom
1939 AD 188
at 202). The enquiry
before us then is whether the court a quo, on the evidence before it,
could reasonably have come to the conclusion
that it was indeed the
appellant who perpetrated the robberies in question. This involves a
determination of whether the two cardinal
rules of logic in Blom had
been invoked: first, the inference that the appellant committed the
robberies must be consistent with
all the proved facts. If it is not,
that inference cannot be drawn. Second, the proved facts should be
such that they exclude every
reasonable inference from them, save
that it was the appellant who was the perpetrator.
[15] The first leg of
the enquiry is clearly met: the inference that the appellant was one
of the robbers is consistent with the
fingerprint evidence. The
answer to the second depends upon the probative value to be accorded
to the appellant's thumb and palm
prints found on the Venture and the
Isuzu bakkie. Can it be said, ultimately, that his explanation as to
how his palm print came
to be on the Isuzu bakkie and his lack of
knowledge as to how his thumb print came to be on the Venture is
reasonably possibly
true, such that the conclusion that the appellant
was guilty on both counts is wrong?”.
26.
It must be remembered that in the instant matter the appellant made
no attempt to provide any explanation at all for the presence
of his
DNA in his daughter’s underwear, notwithstanding the evidence
which confirmed that she had been sexually assaulted.
The court
a quo
therefore had no alternative explanation available to it
for evaluation purposes.
27.
The next step in the decision-making process involves the appellant’s
decision not to provide any alternative explanation
and the
legitimate consequences of that decision.  In
S v
Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA), at paragraph 46, the court
dealt with this issue as follows:
“
[46] It is
trite law that a court is entitled to find that the State has proved
a fact beyond reasonable doubt if a prima facie
case has been
established and the accused fails to gainsay it, not necessarily by
his own evidence, but by any cogent evidence.
We use the expression
'prima facie evidence' here in the sense in which it was used by this
Court in Ex parte the Minister of Justice:
In re R v Jacobson &
Levy
1931 AD 466
, where Stratford JA said at 478:
'
''Prima facie'' evidence in its more usual sense, is used to mean
prima facie proof of an issue the burden of proving which is
upon the
party giving that evidence. In the absence of further evidence from
the other side, the prima facie proof becomes conclusive
proof and
the party giving it discharges his onus.'
[47] Of course, a
prima facie inference does not necessarily mean that, if no rebuttal
is forthcoming, the onus will have been satisfied.
But one of the
main and acknowledged instances where it can be said that a prima
facie case becomes conclusive in the absence of
rebuttal is where it
lies exclusively within the power of the other party to show what the
true facts were and he or she fails
to give an acceptable
explanation. In the present case the only person who could have come
forward to deny the prima facie evidence
that he had authorised,
written or signed the letter is the appellant. His failure to do so
can legitimately be taken into account.”
28.
The same court confirmed at page 33 paragraph 50 that the failure
to cross-examine on supposedly disputed issues also carries
consequences:
“
[50] In the
context of the dispute now under discussion, … in the wider
context of the outcome of this appeal and the conduct
of the defence
in the trial Court, it is clear law that a cross-examiner should put
his defence on each and every aspect which
he wishes to place in
issue, explicitly and unambiguously, to the witness implicating his
client. A criminal trial is not a game
of catch-as-catch-can, nor
should it be turned into a forensic ambush.[51] In this respect, we
are in full agreement with the comments
made by the Constitutional
Court in President of the Republic of South Africa and Others v South
African Rugby Football Union and
Others
2000 (1) SA 1
(CC) at
36J-37E.'[61] The institution of cross-examination not only
constitutes a right, it also imposes certain obligations. As
a
general rule it is essential, when it is intended to suggest that a
witness is not speaking the truth on a particular point,
to direct
the witness's attention to the fact by questions put in
cross-examination showing that the imputation is intended to
be made
and to afford the witness an opportunity, while still in the
witness-box, of giving any explanation open to the witness
and of
defending his or her character. If a point in dispute is left
unchallenged in cross-examination, the party calling the witness
is
entitled to assume that the unchallenged witness's testimony is
accepted as correct.” …
[52] The rule stated
by the Constitutional Court applies also to the challenging of all
evidence adduced by the counter-party, whether
on the basis of
hearsay, inadmissibility or lack of proof of authenticity, accuracy,
etc.”
29.
The constitutional right to silence does not provide a catch-all
justification for not giving evidence where an explanation
is
required.  In
DPP v Heunis
(196/2017) [2017] 136
(29 September 2017) at paragraph 18-19 Bosielo JA
writing for the majority said that:
"
to my mind this
damning evidence called for an answer from the respondent, no answer
came forth from him, instead he elected to
rely on his unsworn
section 115
statement which was problematic ...on proper
reconsideration of the evidence including the respondent's
section
115
statement, I am of the view that although the respondent was
exercising his constitutional right in terms of
section 35(3)(h)
to
remain silent and not to testify during the proceedings; his failure
to do so must be taken into account against him.
"
30.
The direct consequence of not giving evidence, where it becomes
necessary, was confirmed in the matter of
S v Mthethwa
(CC03/2014)
[2017] ZAWCHC 28
(16 March 2017) DJP Goliath said:
"
the accused
elected not to testify, all the state's evidence cumulatively
established that the vehicle of the accused was at the
scene of crime
beyond reasonable doubt...there are consequences and risks associated
with an election not to testify...the prosecution's
case is
strengthened when such evidence is uncontroverted due to the failure
of the accused to testify.
"
31.
The uncontroverted evidence confirmed that the appellant’s DNA
was found in the complainant’s undergarment.
This fact,
coupled with the complainant’s injuries which established that
she had been recently sexually assaulted, required
an explanation.
The appellant’s failure to challenge the evidence of the first
reporter or of the medical expert and
his decision to remain silent
in the face of the
prima facie
evidence of the assault having
been committed by him, gives rise to the consequences enunciated by
the judgments referred to above.
32.
In the circumstances, the court
a quo
found correctly that the
only reasonable inference to be drawn from the established facts was
that it was the appellant who had
sexually assaulted the complainant
by attempting to rape her.
33.
I can therefore find no fault with the court
a quo
’s
reasoning or with its conclusion.  The state proved beyond
reasonable doubt that the appellant had attempted to rape
his
daughter and the appeal against the conviction must be dismissed.
SENTENCING
34.
The appellant was 43 years of age at the time of the trial.  He
was married with two children and was, at the time of the
assault,
separated from his wife, the mother of the complainant.  He was
unemployed at the time of sentencing, as his contract
had not been
renewed due to the absenteeism that was a consequence of the criminal
trial.  He had previously worked as a welder
earning R 2,500.00
per week.  This was his first conviction.
35.
It is trite
law that the appeal court may not and shall not interfere with the
imposed sentence unless it is convinced that the
sentence discretion
has been exercised improperly or unreasonably.
[1]
36.
A mere
misdirection is not by itself sufficient to entitle the appeal court
to interfere with the sentence; it must be of such a
nature, degree
or seriousness that it shows directly or inferentially, that the
court did not exercise its discretion at all or
that it exercised it
improperly or unreasonably, such a misdirection is usually and
conveniently termed one that vitiates the court's
decision on
sentence.
[2]
37.
An analysis
of the sentencing imposed for similar convictions reveals that the
sentence itself does not stand out as an exception
[3]
.
The court is also required to consider the facts peculiar to this
matter, in addition to the appellant’s personal
circumstances.
38.
The complainant was eleven years old at the time of the attempted
rape and she is the biological daughter of the appellant.
Our
courts have justifiably expressed deep concern at this kind of
offence.  In
Director of Public Prosecutions, North Gauteng v
Thabethe
2011 (2) SACR 567
(SCA) at paragraphs 17 & 22 the
court observed that "
the emergence of a trend of rapes
involving young children is becoming endemic
" in this
country.
39.
In my view, the facts underlying this crime serve as aggravating
circumstances.  Where a father rapes or attempts to rape
his own
daughter, and where the act is of sufficient severity to cause
physical injury to the child, that father is deserving of
a severe
punishment because such conduct ranks amongst the most severe of
violations of parental care and trust.
40.
In
S v PB
2013 (2) SACR 533
(SCA) at [13] the court
expressed itself in these terms:
“
[13] It can
hardly be disputed that rape of young girls by their fathers is not
only scandalous; it has become prevalent as well.
To all
right-thinking people it is morally repugnant. It has emerged
insidiously in recent times as a malignant cancer seriously

threatening the wellbeing and proper growth and development of young
girls. It is an understatement to say that it qualifies to
be
described as a most serious threat to our social and moral fabric.”
41.
The
judgment of the Supreme Court of Appeal
in
S
v Vilakazi
[2008]
ZASCA 87
;
[2008]
4 All SA 396
(SCA);
2009
(1) SACR 552
;
2012
(6) SA 353
put this crime in its proper context:
“
[1]
Rape is a repulsive crime. It was rightly described by counsel in
this case as 'an invasion of the most private and intimate
zone of a
woman and strikes at the core of her personhood and dignity'. In S
v Chapman [(1997 (3) SA 341 (A) at 345A-B]
this
court called it a 'humiliating, degrading and brutal invasion of the
privacy, the dignity and the person of the victim' and
went on to say
that
‘
[w]omen
in this country . . . have a legitimate claim to walk peacefully on
the streets, to enjoy their shopping and their entertainment,
to go
and come from work, and to enjoy the peace and tranquility of their
homes without the fear, the apprehension and the insecurity
which
constantly diminishes the quality and enjoyment of their lives.’
[2]
Yet women in this country are still far from having that peace of
mind. According to a study on the epidemiology of rape ‘the

evidence points to the conclusion that women's right to give or
withhold consent to sexual intercourse is one of the most commonly

violated of all human rights in South Africa’.  During
2007 as many as 36 190 reports of rape were made to the
police.
Perhaps in some cases the report was false, but the figure is
nonetheless staggering bearing in mind that rape is
notoriously
under-reported. It is also notorious that relatively few offenders
are caught and convicted.”
42.
The epidemic of rape in this country has not abated since 2008.
Furthermore, that which applies to adults, applies even
more to young
children, who have every right to expect to be safe from harm in
their own homes and particularly whilst they are
in the care of their
parents.  The violation of this sanctity cannot be condemned in
terms which are strong enough.
43.
Commenting on this kind of offence, the court in
S v Abrahams
2002 (1) SACR 116
(SCA) said that :
"of all the
grievous violations of the family bond the case manifests, this is
the most complex, since a parent, including
a father, is indeed in a
position of authority and command over a daughter.  But it is a
position to be exercised with reverence
in a daughter’s best
interest, and for her flowering as a human being.  For a father
to abuse that position to obtain
forced sexual access to his
daughter’s body constitutes a deflowering in the most grievous
and brutal sense."
44.
In my opinion, it cannot be said that the sentence handed down by the
court a
quo
is disproportionately severe when considered in
the context of the crime committed. Counsel for the appellant
conceded as much during
argument at the appeal. Conduct of this
nature is justly condemned and the courts should do their best to
contain this kind of
abuse of our children.  Leniency is not an
appropriate response.
45.
I can
therefore find no reason to reduce the sentence handed down by the
court
a
quo
.
On the contrary, had the accused come before this court as a court of
first instance, he would likely have received a longer
period of
incarceration, however, the
sentence handed down cannot
be described as shockingly inappropriate.  For these reasons I
do not find that this court is
at liberty to intervene.
46.
I would
therefore dismiss the appeal against both the conviction and the
sentence.
47.
This finding
is, however, unfortunately not the end of this matter.  Events
surrounding the trial and treatment of the complainant
during the
trial, as well as thereafter, require the attention of this court
and, as will be seen, of the appropriate authorities.
ADDITIONAL
MATTERS THAT REQUIRE CONSIDERATION
48.
As the upper guardian of the children of South Africa, this court is
required to be concerned about the welfare of the complainant
as well
as other children in her position.  This concern should extend
to her treatment by the criminal justice system and
to her
participation in the trial of her assailant.
49.
It is an uncomfortable truth that the complainant’s exposure to
the trauma of her assault did not end with the arrest
of her father.
The first indications of discomfort are occasioned by the fact that
the criminal trial required twenty-one
appearances before it could be
resolved.  These were as follows:
(1.) 22 November 2016
(postponement at accused’s request);
(2.) 8 December 2016
(postponed at accused’s request);
(3.) 8 February 2017
(declared trial ready);
(4.) 29 March 2017
(accused absent);
(5.) 24 April 2017
(postponed for plea and trial);
(6.) 22 May 2017 (accused
ill);
(7.) 24 May 2017 (trial,
complainant gives evidence, not completed);
(8.) 28 June 2017
(postpone for further trial);
(9.) 15 August 2017;
(10.) 4 September 2017
(state witness absent);
(11.) 28 September 2017
(accused ill);
(12.) 2 October 2017
(complainant had asthma attack);
(13.) 10 November 2017
(CCTV not working and complainant writing exams);
(14.) 7 December 2016
(complainant and mother absent);
(15.) 12 February 2018
(state requests affidavit to explain mother’s reluctance to
bring complainant to court);
(16.) 22 February 2018
(accused’s attorney off sick);
(17.) 8 March 2018 (state
closes case as does accused);
(18.) 26 March 2018
(state case re-opened);
(19.) 12 April 2018
(judgment);
(20.) 25 April 2018;
(21.) 7 May 2018;
(22.) 17 May 2018; and
(23.) 22 May 2018.
50.
Of these allocated dates, it appears, from what was stated at the
hearing, that the complainant was present at court on seven
days.
To make matters worse, her evidence was never completed and could not
be considered at all for the purposes of
the judgment.  As a
consequence, every one of those days when she was taken to court was
an exercise in futility and served
no good purpose, as far as the
trial was concerned.
51.
One can only imagine what each attendance at court required of this
child.  Not only would she have been compelled to relive
the
assault in preparing herself to give evidence on each occasion, but
she would have endured the hardships of getting to court
utilising
the public transport system and then of waiting to give evidence of
her assault.
52.
In addition, her mother would likely have had to be away from her
work and the complainant would have had to have absented herself
from
school.  It is small wonder that the complainant’s mother
eventually refused to co-operate and failed to return
with her
daughter to court to complete her evidence.
53.
It also emerged during argument that the appellant and the
complainant had been brought into contact with one another by the

complainant’s mother at the appellant’s home while the
trial was still under way.  This was highly inappropriate
in the
circumstances and very likely detrimental to the child’s
well-being.
54.
There is furthermore no indication from the record that a social
worker or a therapist had been assigned to the complainant,
either to
assist her with the trial itself or to provide trauma counselling of
any sort.  Both such interventions would clearly
have been
necessary.  Indeed, trauma counselling is undoubtedly still
required.
55.
In my view, the history referred to above represents a significant
failure by the criminal justice system to provide proper
care for the
complainant, care which it is required by law to provide so as to
avoid as far as possible secondary trauma being
occasioned to the
victim.
56.
I am acutely aware of the budgetary issues and other constraints that
affect the delivery of services in our country, but where
the
legislature has made specific provision for certain minimum standards
to be maintained there can be no excuse for not doing
so.  The
problem requires remediation for the sake of our children.
57.
In order that there be no ambiguity about the legal requirements
imposed on the criminal justice system, I consider it to be
necessary
to set out in some detail the legislative environment pertaining to
matters of this sort.  Our law has taken significant
strides in
recent years with the aim of avoiding children being subjected to the
potentially grinding effect of the criminal justice
system and these
laws should be adhered to by the relevant participants in that
system.
THE
LEGISLATIVE ENVIRONMENT
58.
The
Legislature has adopted policies which have found expression in
detailed legislation specifically aimed at providing for the
care and
the nurturing of children, and specifically those children who have
suffered harm
[4]
.  The
primary source of our law is the Constitution which makes specific
provision for the proper care of children.
Section 28(2) holds
that:
'A child's best
interests are of paramount importance in every matter concerning the
child.'
59.
The preamble to the Children’s Act No. 38 of 2005 gives more
concrete expression to this sentiment by providing as follows:
“
Preamble
WHEREAS the
Constitution establishes a society based on democratic values, social
justice and fundamental human rights and seeks
to improve the quality
of life of all citizens and to free the potential of each person;
AND WHEREAS every
child has the rights set out in section 28 of the Constitution;
AND WHEREAS the State
must respect, protect, promote and fulfil those rights;
AND WHEREAS protection
of children's rights leads to a corresponding improvement in the
lives of other sections of the community
because it is neither
desirable nor possible to protect children's rights in isolation from
their families and communities;
AND WHEREAS the United
Nations has in the Universal Declaration of Human Rights proclaimed
that children are entitled to special
care and assistance;
AND WHEREAS the need
to extend particular care to the child has been stated in the Geneva
Declaration on the Rights of the Child,
in the United Nations
Declaration on the Rights of the Child, in the Convention on the
Rights of the Child and in the African Charter
on the Rights and
Welfare of the Child and recognised in the Universal Declaration of
Human Rights and in the statutes and relevant
instruments of
specialised agencies and international organisations concerned with
the welfare of children;
AND WHEREAS it is
necessary to effect changes to existing laws relating to children in
order to afford them the necessary protection
and assistance so that
they can fully assume their responsibilities within the community as
well as that the child, for the full
and harmonious development of
his or her personality, should grow up in a family environment and in
an atmosphere of happiness,
love and understanding,”
60.
Having considered the guiding principles, I now quote extensively
from the Children’s Act, as particular attention is
given in
that Act to the vulnerability of children in our society and to the
obligation to provide a special degree of care for
them.  The
Act stipulates, at Section 6, that children require special
treatment:
“
General
principles
(1)
The general principles set out in this section guide-
(a)
the implementation of all legislation applicable to children,
including this Act; and
(b)
all proceedings, actions and decisions by any organ of state in any
matter concerning a child or children in general.
(2)
All proceedings, actions or decisions in a matter
concerning a child must-
(a)
respect, protect, promote and fulfil the child's rights set out in
the Bill of Rights, the best interests of the child standard
set out
in section 7 and the rights and principles set out in this Act,
subject to any lawful limitation;
(b)
respect the child's inherent dignity;
(c)
treat the child fairly and equitably;
(d)
protect the child from unfair discrimination on any ground, including
on the grounds of the health status or disability of the
child or a
family member of the child;
(e)
recognise a child's need for development and to engage in play and
other recreational activities appropriate to the child's
age; and
(f)
recognise a child's disability and create an enabling environment to
respond to the special needs that the child has”.
61.
Section 8  Application provides further that:
“
(1) The rights
which a child has in terms of this Act supplement the rights which a
child has in terms of the Bill of Rights.
(2)
All organs of
state in any sphere of government and all officials, employees and
representatives of an organ of state must respect,
protect and
promote the rights of children contained in this Act.
(3) A provision of
this Act binds bot natural or juristic persons, to the extent that it
is applicable, taking into account the
nature of the right and the
nature of any duty imposed by the right.”
62.
Section 9  provides that the best interests of a child are
“
paramount
”:
“
In
all matters concerning the care, protection and well-being of a child
the standard that the child's best interest is of paramount

importance, must be applied.”
63.
To give practical effect to these principles, the legislature has
seen fit to promulgate legislation which deals specifically
with
sexual offences, in the form of The
Criminal Law (Sexual Offences and
Related Matters) Amendment Act No. 32 of 2007
.  This Act
required the preparation and implementation of a National Policy
Framework (the “NPF”) (ss 62-65).
“
Section 62
National policy framework
(1)
The Minister must, after consultation with the cabinet members
responsible for safety and security, correctional services, social

development and health and the National Director of Public
Prosecutions, adopt a national policy framework, relating to all
matters
dealt with in this Act, to-
(a)
ensure a uniform and co-ordinated approach by all Government
departments and institutions in dealing with matters relating to
sexual
offences;
(b)
guide the implementation, enforcement and administration of this Act;
and
(c)
enhance the delivery of service as envisaged in this Act by the
development of a plan for the progressive realisation of services
for
victims of sexual offences within available resources.
(2)
The Minister must-
(a)
before 31 March 2009, adopt and table the policy framework in
Parliament;
(b)
publish the policy framework in the Gazette within one month after it
has been tabled in Parliament;
(c)
review the policy framework within five years after its publication
in the Gazette and at least once every five years thereafter;
and
(d)
amend the policy framework when required, in which case the
amendments must be tabled in Parliament and published in the Gazette,

as provided for in paragraph (b).
Section 63
Establishment of Inter-sectoral Committee
(1)
There is hereby established a Committee to be known as the
Inter-sectoral Committee for the Management of Sexual Offence
Matters.
(2)
The Committee shall consist of-
(a)
the Director-General: Justice and Constitutional Development, who
shall be the chairperson of the Committee;
(b)
the National Commissioner of the South African Police Service;
(c)
the National Commissioner of Correctional Services;
(d)
the Director-General: Social Development;
(e)
the Director-General: Health; and
(f)
the National Director of Public Prosecutions.
(3)
The members of the Committee may designate an alternate to attend a
meeting of the Committee in their place.
(4)
(a) The members of the Committee shall designate one of its members
as deputy chairperson of the Committee, and when the chairperson
is
not available, the deputy chairperson shall act as chairperson.
(b)
If neither the chairperson nor deputy chairperson is available, the
members present at a meeting shall elect a person from their
own
ranks to preside at that meeting.
Section 64
Meetings of Committee
(1)
The Committee shall meet at least twice every year and meetings shall
be held at a time and place determined by the chairperson.
(2)
The procedure, including the manner in which decisions shall be
taken, to be followed at meetings of the Committee and the manner
in
which the Committee shall conduct its affairs shall be determined by
the Committee.
(3)
The Committee shall report in writing on every meeting to the
Minister within one month of such meeting.
Section 65
Responsibilities, functions and duties of Committee
(1)
The Committee shall be responsible for developing and compiling a
draft national policy framework, as contemplated in section
62 (1),
which must include guidelines for-
(a) the implementation
of the priorities and strategies contained in the national policy
framework;
(b) measuring progress
on the achievement of the national policy framework objectives;
(c) ensuring that the
different organs of state comply with the primary and supporting
roles and responsibilities allocated to them
in terms of the national
policy framework and this Act; and
(d) monitoring the
implementation of the national policy framework and of this Act.
(2)
The Committee may make recommendations to the Minister with regard
to the amendment of the national policy framework.”
64.
Notwithstanding
the requirement to have produced and published the NPF within one
year of the Act, the NPF was revealed in its final
version only
several years later.  In their article “
Court
support workers speak out: Upholding children's rights in the
criminal justice system
”
published in the SA Crime Quarterly in June 2014, the authors
[5]
report that:
“
In
September 2013, five years later than it was due, the National Policy
Framework on Management of Sexual Offences (NPF) was published
in
the Government Gazette.
The
NPF is based on the principles of ensuring a 'victim centred approach
to sexual offences'; adopting multidisciplinary and inter-sector

responses; providing specialised services in these matters; and
ensuring 'equal and equitable access to quality services'.
The
NPF provides a number of new measures that may improve the
implementation of existing laws and policy. Firstly, it recognises
a
range of factors that increase the vulnerability of victims 'due to
gender power imbalances, age, disability, sexuality and cultural

dynamics'. Secondly,
it
requires that budget allocations and expenditure on sexual offences
must be separately tracked to monitor this and ensure sufficient

resources are made available.
It
also requires the development of SAQA-accredited training, allowing
for improved standards in training.
Perhaps
most importantly, the NPF provides that 'psycho-social services and
practical assistance must be provided as an integrated
part of
support services at all stages'.
Other
key developments in the past 20 years include the establishment of
specialist Sexual Offences Courts (SOCs) in 1993
and the introduction
of TCCs in 2000.”
65.
In the
foreword by the then Minister of Justice and Constitutional
Development to the National Policy Framework (“the NPF”)

Management of Sexual Offences Matters of June 2012 the Minister
stated,
inter
alia
,
that:
“
The Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
(the Act) stands as a perfect example of a comprehensive
piece of
legislation that is rich with features that protect the rights of
victims against sexual violence. It is an Act that puts
emphasis on
the progressive development of a Criminal Justice System (CJS) that
is victim-centred, responsive and caring
. It creates a
wide range of new specific crimes to better respond to sexual
violence perpetrated against children and persons with
disabilities,
in particular. With its expressed emphasis on leaning on the
international trend of service integration, it further
provides for
the development of a policy framework to guide the integrated
management of sexual offences. This document therefore
stands to
represent the fulfilment of this requirement. It is the National
Policy Framework on the Management of Sexual Offences,
which the key
stakeholders in the CJS jointly developed, under the leadership of my
Department.”
…
It is our
goal, as the DOJ&CD and the JCPS Cluster Departments and
Institutions, to continually and collectively equip our CJS
system to
fully respond and prevent sexual violence in all its forms. This
Policy Framework therefore seeks to establish coordinated
planning,
resource allocations and execution of services within the sexual
offences sector. It entrenches the victim-centred CJS,
and promotes
specialization in service delivery to respond to the special needs of
the victims.”
66.
While it is important to consider the NPF as a whole, quoting the
entire document would occupy too much space in this judgment.
I
will therefore only refer to certain aspects of the document, which
confirm that the:
“
NPF seeks
to ensure that all government departments and other role-players are
collectively guided in the implementation, enforcement,

administration, monitoring and evaluation of the Act”….
[and it confirms that the Act] “acknowledges flaws in
the CJS
and recognizes that the system exacerbates the plight of the victims
'through secondary victimisation and traumatisation”.
67.
Furthermore, it states that:
“
the Act
places a significant degree of responsibility and accountability on
government departments to deliver appropriate, adequate,
and
efficient services to all victims of sexual violence. The
entrenchment of the intersectoral coordination of services in the
Act
further reflects a major departure from the fragmented service
delivery of the past, as it requires the alignment of all policies

and programmes to efficiently respond to the scourge of sexual
violence. The Act further puts emphasis on systemic monitoring and

evaluation to measure progress.
68.
Of considerable importance to the present matter, the NPF also
emphasises that special attention must be given to the thorny issue

of :
“
secondary
victimization  and  traumatisation
to
describe
the  negative
criminal justice experiences by victims of sexual offences. However,
secondary victimization can be defined
as an attitude,
process, action and/or omission
that may
intentionally or unintentionally contribute to the re-victimization
of
a  person  who
has experienced  a
traumatic
incident  as a  victim. This  may
take
place through
failure to treat the victim with respect and dignity, disbelief of
the  person's account,
unsympathetic treatment,
blaming the victim,
lack of, or insufficient coordinated
support services to assist the  victim at a personal,
institutional and broad social level.
”
Principle 1:
Adoption of a Victim-Centred Approach to Sexual Offences
This principle
underlines the importance of providing services to victims of sexual
offences based on a victim-centred model. This
approach recognises
the centrality of the victim's role in the management of sexual
offence cases and promotes the provision of
services, processes and
institutional mechanisms that improve victims' emotional and
psychological well-being. This approach recognises,
at its core, that
addressing the vulnerability of victims due gender power imbalances,
age, disability, sexuality and cultural
dynamics and other factors
often has a great impact on the outcome of the sexual offence cases.
An efficient and effective victim-centred response
therefore requires all service delivery points within the value chain
of sexual
offences to provide victim-friendly services that exhibit
speed, sensitivity and responsive attitudes to reduce, and
ultimately,
eradicate secondary victimisation.
Principle 2:
Adoption of a Multi-disciplinary and lntersectoral Response to Sexual
Offences
This principle rests
on the premise that an efficient and holistic response to the
management of sexual offences requires a multi-disciplinary
and
intersectoral approach.
It requires collective
participation of service providers such as the police officials,
health care professionals, social workers,
prosecutors, judicial
officers, correctional officials, educators and traditional leaders.
At community level, the integrated response of organizations such as
NGO's, Community-based Organizations and Religious-based
Organizations, which enhance interventions against sexual violence,
also become imperative.
This principle
therefore promotes a coordinated response to sexual crimes so as to
allow room for joint development and execution
of intervention
actions and programmes, shared services and resources, integrated
skills development, and collective monitoring
and evaluation
mechanisms, with the aim to improve the quality and quantity of
services. lntersectoral collaboration not only provides
a continuity
of care and co-ordinated response to victims' needs, but also
provides the opportunity for on-going oversight, feedback
and
evaluation, which leads to the improved provision of services. The DG
ISC becomes critical in this regard, as it is empowered
by the Act to
monitor the execution of the intersectoral response and
prevention
of sexual violence in the country.
Principle 3:
Provision of Specialized Services to the Victims of Sexual Offences
International and
national research studies continue to highlight the severe
consequences of sexual violence on both the direct
and indirect
victims of this crime. The international trend in addressing these
consequences puts emphasis on the adoption of specialized
services
when dealing with victims of sexual offences. It requires the
provision of specialized services by people who acquired
specialized
knowledge and skills to specifically deal with sexual offences
matters.
…
By
making reference to the vulnerability of victims and the eradication
of secondary victimization, the Act may be further construed
as
recognizing the peculiar circumstances of victims of sexual violence,
which often gives rise to special needs that require a
specialized
response.
The
existing government approach to service delivery recognizes the
notion of the provision of specialized services as imperative
for
victims of certain crimes, such as rape, domestic violence and other
crimes associated with gender-based violence. Moreover,
the
Act itself requires the introduction of "certain services to
certain victims of sexual offences" which is read to
mean
"specialized services'
'.
Government departments have established specialized units, divisions
or structures that are capacitated by specialist personnel
and
special resources to deal with sexual offences matters. Examples of
these include specialized services offered by Clinical
Forensic
Medicine Centers (CFMC) in the DOH; Family, Child and Sexual Offences
(FCS) Units within SAPS; Thuthuzela Care Centers
(TCCs) established
by the NPA; Court Preparation Officers provided by NPA; as well as
the Sexual Offences Courts that are capacitated
with Witness
Testifying Rooms, One-Way Mirrors, Anatomical Dolls and
Intermediaries provided in courts, as well as One-Stop Centers

managed by the DSD.
2.2.2 Specific
Objective 2- To Develop and Strengthen Coordinated Services
(a) Description
The
Act makes it mandatory for government to "provide certain
services to certain victims of sexual offences" and "to

minimize or, as far as possible, eliminate secondary
traumatization... including the manner in which sexual offences and
related
matters must be dealt with uniformly in a coordinated and
sensitive manner.. .''. The services must be rendered in a
coordinated
and integrated manner to avoid secondary victimization of
the victim. These provisions address two main service delivery
obligations
i.e. the provision of support to victims of sexual
violence and the implementation of mechanisms to prevent sexual
violence incidents.
The
Support Obligation
requires that
support services be provided in a manner that would instils the
confidence of the victim in the CJS and that his or
her resort to the
law will transform the victim to a survivor. Reference to "certain
services" refers to provision of
specialized services which must
be rendered in an equitable manner throughout the CJS.
The
Prevention Obligation
requires
government to adopt measures aimed at preventing sexual violence.
This obligation includes the reduction of repeat offending
by means
of offender rehabilitation programmes and the development of
responses that reduce harmful consequences caused by sexual
violence
on the victim and society. Psycho-social support can prevent
re-victimization as well as reduce the risk of some victims
later
becoming perpetrators. Furthermore, the ultimate goal of any
prevention programme must be to create an environment where
all
persons feel safe and secure from sexual violence.
Section
62(1) (c) of the Act also requires government departments to develop
an implementation plan for the progressive realization
of services to
victims of sexual offences within available resources.
(b)
The Specific Principles Informing Coordination of Services
(iii)
Psycho-social services and practical assistance must be provided as
an integral part of support services at all stages of
the management
of sexual offences.
(iv)
Service providers must adopt an integrated or multi-sectoral approach
to service provision to increase levels of confidence
in the CJS.
(v)
All cases of sexual offences must be dealt with through the CJS;”
69.
The
NPF also provides, as a general set of principles, as follows
[6]
:
“
Government
Departments and institutions mentioned in the Act and their
officials: a)
All implementing Government Departments -
with clearly defined responsibilities in terms of the Sexual Offences
Act must ensure
that their obligations are carried out.
This will require coordinated implementation eff orts that may
include government departments beyond the JCPS Cluster to achieve

efficiency and effectiveness. For instance, the DBE becomes critical
in ensuring that all responsibilities related to the protection
and
promotion of the rights of children are met in a coordinated fashion.
…
CHAPTER 2: THE
FRAMEWORK 28 b) Government officials - accountability, roles and
responsibilities must be clearly defined for officials
responsible
for providing services related to sexual offences in terms of
prevention, support and care across all spheres of government.

Monitoring and evaluation tools and guidelines can be utilised to
standardise performance. This will ensure understanding of the

requirements of the NPF at all levels. c) NGO, Religious Based
Organisations and Community Based Organisations working with victims

of sexual violence must be consulted when the NPF is reviewed and the
5-year strategic plan for the implementation of the NPF and
other
plans are developed, where necessary. Consultative processes must be
put in place at all levels to ensure the collective
prevention,
response and care in the management of cases of sexual offences.”
70.
As can be seen from these extracts there are legislatively imposed
structures and procedures which are required to be put in
place and
implemented to ensure that child victims of crime are treated in such
a manner as to reduce, as far as possible, the
occurrence of
secondary trauma to the victim during the trial of the perpetrator.
71.
Events such as the delays and repeated postponements referred to
hereinabove should not be permitted.  Everything that
can be
done should be done to reduce the anxiety and stress that accompany
the giving of evidence at a criminal trial.  There
is a positive
obligation on those involved to take active steps to assist the
complainant in matters of this nature.
72.
The court in
Teddy Bear Clinic for Abused Children and Another v
Minister of Justice and Constitutional Development and Another
2014 (2) SA 168
(CC)  held that:
“
[1] Children
are precious members of our society and any law that affects them
must have due regard to their vulnerability and their
need for
guidance. We have a duty to ensure that they receive the support and
assistance that are necessary for their positive
growth and
development. Indeed, this court has recognised that children merit
special protection through legislation that guards
and enforces their
rights and liberties.  We must be careful, however, to ensure
that, in attempting to guide and protect
children, our interventions
do not expose them to harsh circumstances which can only have adverse
effects on their development.”
PRACTICAL
ISSUES THAT REQUIRE ATTENTION
73.
I now turn to what I consider could have been done and what still
should be done to assist this complainant and future child

complainants as well.  The first aspect that I will refer to
relates to the conduct of the trial and to court procedures.

The second relates to social services that ought to be provided to
children in this predicament.
74.
It cannot be over emphasised that the complainant was a mere child of
eleven when she was assaulted by her father and that it
was certainly
not in her best interests to have been compelled to attend at the
criminal court on so many separate days.
One can only imagine
the stress and anxiety that even one attendance would cause a child
of this age, and indeed any rape victim
at all, let alone seven
appearances.
75.
In what I set out below, I do not intend to legislate but I do intend
to suggest possible and practical solutions to what seem
to be
considerable problems with the current system.  My primary
intention, however, is to highlight these problems so that
the
experts in the appropriate fields might attend to the practical
remedial actions.
STEPS
THAT COULD BE TAKEN AT COURT LEVEL
76.
That the complainant was not protected from her father, or at the
very least not put outside of his reach during the trial indicates
a
failure to impose appropriate bail conditions which would have
provided protection from this kind of contact.
77.
That she was required to attend at court on so many occasions, is
indicative of a system that is not effectively geared towards

preventing, or at the very least reducing as far as possible, the
“secondary  victimization  and  traumatisation”

occasioned by repeated attendances at court to give evidence.  Proper
trial and court management procedures would go a long
way to
preventing a re-occurrence of this scandal.
78.
Practically speaking, it should be possible to arrange matters so
that notice could be given in advance of the fact that the
trial will
not be proceeding on a particular day.  If a delay is due to the
accused, he should be required to provide advance
notice so that the
complainant and witnesses do not attend on court for no purpose.  The
giving of advance notice could either
be ordered specifically or
could be a condition of bail, so as to avoid unnecessarily
traumatising his alleged victim.  Where
the court or court
officers occasion a delay the same courtesy should be extended to the
other parties and witnesses, in advance.
This would go some way
to avoiding unnecessary attendances at court.
79.
If this might occasion difficulties with obtaining the attendance of
witnesses and the accused at court they could be given
several dates
in advance and warned to attend at court on each date.
80.
The system should provide for those victims without adequate means or
those who have to rely on an inadequate public transport
system, to
be collected from their homes and transported to court.  Either
the police or the social welfare staff could be
tasked with this
function.  In this matter there was clearly no real effort made
to assist the complainant with attending
at court.
81.
The other witnesses were also inconvenienced by the manner in which
the trial progressed.  Both the first reporter and
the expert
witness gave evidence on only their third attendance at court.
One is aware of the inconvenience that repeated
attendances entail,
particularly for people who have no direct interest in the matter at
hand, and the danger to the satisfactory
completion of the trial that
this presents.
82.
Effective case management procedures would go a long way to reducing
the number of postponements, the number of required attendances
by
all concerned, and to reducing the length of trials in general.
STEPS
THAT CAN BE TAKEN AT THE SOCIAL WELFARE LEVEL
83.
It is not impossible to comprehend that relatively simple precautions
and procedures adopted during the conduct of a criminal
trial
involving a child complainant would go some way towards reducing the
anxiety and trauma likely to be experienced by the child
complainant
as a consequence of the court proceedings.
84.
For example one can appreciate how the following interventions might
provide comfort and assistance to the child:
84.1 Early involvement of
the Department of Social Services to appoint a social worker to
assess the child complainant’s circumstances
and to provide
trauma counselling and assistance;
84.2 Requiring that the
investigating officer or the appointed social worker make prior
arrangements to assist the complainant and
her custodian to travel to
court from their home on the morning of the hearing would avoid the
difficulties and costs occasioned
by having to utilise an unreliable
public transport system;
84.3 Providing
counselling to the child complainant’s non-offending parent on
methods to assist the child, specifically, in
this instance guidance
about the advisability of putting her daughter into a situation where
she would meet with her father during
the trial; and
84.4 Providing continued
trauma counselling after the completion of the trial for a reasonable
period of time.
85.
In this instance there is no indication on the court record of social
services or court support staff being on hand to assist
either the
complainant or her mother, other than to a limited extent when
evidence was actually being led.  Counselling should
have been
provided and I am of the opinion that it should still be provided to
this child for the foreseeable future.  It
would amount to a
failure of the system should she be left without counselling after
the events that befell her.
86.
I cannot emphasise enough the importance of the relevant welfare
structures receiving notification of the victim and her circumstances

and thereafter of stepping in to provide assistance and counselling
for the complainant.
87.
The Constitutional Court held, per Ngcobo J, in
Director of Public
Prosecutions, Transvaal v Minister of Justice and Constitutional
Development and Others
2009 (4) SA 222
(CC) that:
“
Introduction
[1] Until recently,
the law did not pay much attention to the stress that child
complainants in sexual offence cases suffer when
they testify in
courts. Child complainants in sexual offence cases were required to
relive the horror of the crime in open court.
The circumstances under
which they gave evidence and the mental stress or suffering they went
through while giving evidence did
not appear to be the concern of the
law. And, at times, they were subjected to the most brutal and
humiliating treatment by being
asked to relate the sordid details of
the traumatic experiences that they had gone through. Regrettably,
although there were welcome
exceptions, the plight of child
complainants was seldom the concern of those who required them to
testify or those before whom
they testified.
[2] The advent of our
constitutional democracy must change all of that.  Our
constitutional democracy seeks to transform our
legal system. Its
foundational values of human dignity, the achievement of equality and
the advancement of human rights and freedoms,
introduce a new ethos
that should permeate our legal system. Consistent with these values,
s 28(2) of the Constitution requires
that in all matters concerning a
child, the child's best interests must be of paramount importance.
Recently, the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act (the
Sexual Offences Amendment Act) introduced certain
amendments to the
Criminal Procedure Act (the
CPA). The amendments
that are relevant to these proceedings are those that concern the
protection to be given to child complainants
when giving evidence in
criminal proceedings involving sexual offences.
[3] The central
question presented in these consolidated cases is whether the
provisions of the CPA that concern the protection
to be given to
child complainants in criminal proceedings involving sexual offences
provide protection consistently with s 28(2)
of the Constitution. In
particular, the question presented is whether the provisions of ss
153(3) and (5) (proceedings in camera),
158(5) (the duty to
give reasons for refusing to allow a child to give evidence by means
of closed circuit television), 164(1)
(testifying without taking an
oath or the affirmation), 170A(1) (testifying through an
intermediary) and (7) (the duty to give
reasons for refusing to
appoint an intermediary) of the CPA are consistent with s 28(2) of
the Constitution. These provisions will
be referred to collectively
as the invalidated provisions. This is an important constitutional
question for it concerns persons
who are not parties to criminal
proceedings but whose constitutional rights may be affected.
[4] There are two
other equally important questions which arise from the manner in
which the central question arose in these cases
and the relief that
the High Court granted. The first concerns the powers of a court to
raise a constitutional issue of its own
accord. The other concerns
the power of the High Court to make declaratory and supervisory
orders. The importance of these questions
lies in the fact that they
often arise in the context of child complainants in sexual offence
cases, who are not parties to the
proceedings in which they testify,
yet who have constitutional rights that require protection. They also
arise in the context of
our adversarial system in criminal trials
where those accused of crimes enjoy rights to a fair trial and where
the presiding officer
is neutral and may not take any side in the
contest. They also arise in the context of a constitutional State
where the Constitution
is the supreme law and any law or conduct that
is inconsistent with it is invalid.
[5] But, as the
judgment of the High Court and the submissions made by the parties in
these cases amply demonstrate, behind these
legal questions lies the
core issue concerning the administration of justice. Specifically,
two questions arise in this regard.
First, whether the provisions of
the CPA that were enacted to protect child complainants from the
mental stress and anguish associated
with testifying in criminal
proceedings are being interpreted and implemented consistently with
the Constitution. Second, the duty
of all superior courts, including
this court (as the upper guardian of all minors) - if any - to
investigate any failure to implement
these provisions, which deny
child complainants the protection they constitutionally deserve, once
any failure to do so is brought
to the court's attention. These cases
are therefore fundamentally about the administration of justice in
those courts in which
child complainants of sexual offences appear to
testify.
[6] It is these
questions that we must answer.”
88.
In my view, the Criminal Justice System has, in dealing with the
complainant in this matter, confirmed that it has yet to provide

proper answers to these questions.  For all the good intentions
and policy considerations exemplified in the Act and the NPF,
the
system, on this occasion, simply failed the complainant.
89.
I therefore intend to cause copies of this judgment to be delivered
to those concerned with implementing these policies for
their
consideration and appropriate action.
ORDER:
90.
I therefore make the following order:
RE: THE APPEAL
(a)
The appeal
against both the conviction and the sentence is dismissed.
RE: REMEDIAL STEPS TO BE
TAKEN REGARDING CHILD VICTIMS
(b)
The Head of the Department of Social Development, Western Cape
Province, shall:
(c.1) ensure that a
qualified social worker is appointed to provide trauma counselling
for the complainant;
(c.2) monitor such trauma
counselling and report back to this Court, in writing to my learned
brother Samela J within 6 weeks of
this order to confirm that the
counselling has commenced and on the progress being made in such
counselling;
(c) A copy of this
judgment and Order shall be delivered to the following persons:
(d.1) the
Director-General: Justice and Constitutional Development;
(d.2) the National
Commissioner of the South African Police Service;
(d.3) the
Director-General: Social Development;
(d.4) the
Director-General: Health;
(d.5) the National
Director of Public Prosecutions;
(d.6) the Chief
Magistrate, Wynberg Magistrates’ Court; and
(d.7) The Chief
Prosecutor, Wynberg Regional Court.
____________
M.
SEALE
Acting
Judge of the High Court
I
agree and it is so ordered.
________________
M.I
SAMELA
Judge
of the High Court
[1]
Naeser Teboho Raletsapo v The State (A248/14) WCHC [23 April 2018];
R v Maphumulo & another
1948 (2) SA 677
(AD) at paragraph 24
said that
[2]
S v Pillay
1977 (4) SA 531
A at page 534 paragraph H -
page 535
paragraph G
[3]
S v Mkhatshwa 2015 JDR 1104
(GP);
Nkosi v S
2014 (2) SACR 525
(GP); DPP
Eastern Cape v Yoyo (581/17)
[2018] ZASCA 21
(20 March
2018);
Madiba v The State (497/2013)
[2014] ZASCA 13
(20 March 2014)
[4]
I have added emphasis where I consider this to be necessary.
[5]
Waterhouse,
Samantha; Townsend, Loraine and Nomdo, Christina
[6]
National Policy Framework on Management of Sexual Offences: Criminal
Law [Sexual Offences and Related Matters] Amendment Act
2007 (Act 32
of 2007), Section 62(1), Government Gazette 36804, 21–23.