Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development and Others (CCT 36/08) [2009] ZACC 8; 2009 (4) SA 222 (CC); 2009 (2) SACR 130 (CC); 2009 (7) BCLR 637 (CC) (1 April 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2009
>>
[2009] ZACC 8
|

|

Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development and Others (CCT 36/08) [2009] ZACC 8; 2009 (4) SA 222 (CC); 2009 (2) SACR 130 (CC); 2009 (7) BCLR 637 (CC) (1 April 2009)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 36/08
[2009]
ZACC 8
DIRECTOR
OF PUBLIC PROSECUTIONS, TRANSVAAL
Applicant
versus
MINISTER
FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
First
Respondent
ALBERT
PHASWANE
Second
Respondent
AARON
MOKOENA
Third
Respondent
CENTRE
FOR CHILD LAW
First
Amicus Curiae
CHILDLINE
SOUTH AFRICA
Second
Amicus Curiae
RESOURCES
AIMED AT THE PREVENTION OF CHILD ABUSE AND NEGLECT (RAPCAN)
Third
Amicus Curiae
CHILDREN
FIRST
Fourth
Amicus Curiae
OPERATION
BOBBI BEAR
Fifth
Amicus Curiae
PEOPLE
OPPOSING WOMEN ABUSE (POWA)
Sixth
Amicus Curiae
CAPE
MENTAL HEALTH SOCIETY
Seventh
Amicus Curiae
Heard
on : 6 November 2008
Decided
on : 1 April 2009
JUDGMENT
NGCOBO
J:
Introduction
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.
1
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.
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. Consistently with
these values, section 28(2) of the Constitution
requires that in
all matters concerning a child, the child’s best interests must
be of paramount importance.
2
Recently, the Criminal Law (Sexual Offences and Related Matters)
Amendment Act
3
(the Sexual Offences Amendment Act) introduced certain amendments
to the Criminal Procedure Act
4
(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.
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 section
28(2) of the
Constitution. In particular, the question presented is whether the
provisions of sections 153(3) and (5) (proceedings
in camera
),
5
158(5), (the duty to give reasons for refusing to allow a child to
give evidence by means of closed circuit television),
6
164(1) (testifying without taking an oath or the affirmation),
7
170A(1) (testifying through an intermediary)
8
and (7) (the duty to give reasons for refusing to appoint an
intermediary)
9
of the CPA are consistent with section 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.
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.
But, as the judgment of the
High Court
10
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.
It
is these questions that we must answer.
They
arise out of the convictions of Messrs Phaswane and Mokoena
(together referred to as the accused), who were each charged
in a
regional court, with the rape of a child. The High Court judge
before whom these matters came for sentence, of his own
accord,
raised the constitutional validity of certain provisions of the
CPA. He called upon the accused, the state (including
government
ministers) and various non-governmental organisations that look
after the interests of children, to submit written
argument on the
constitutionality of certain provisions of the CPA including
sections 153, 158, 164(1) and 170A. The court
eventually found
that sections 153(3) and (5), 158(5), 164(1) and 170A(1) and (7)
were inconsistent with section 28(2) of the
Constitution. It held
that the protection they provide falls short of that required by
section 28(2). It accordingly declared
them invalid.
11
The court also issued declaratory and supervisory orders
concerning the rights of child complainants and child witnesses.
The
Director of Public Prosecutions, Pretoria (the DPP), who is
supported by various amici, is seeking the confirmation of the

orders of invalidity. The Minister is opposing the confirmation of
those orders. The Minister is also appealing against both
the
orders of invalidity and the declaratory and supervisory orders.
Both the amici and the DPP support the declaratory and
supervisory
orders. Mr Phaswane and Mr Mokoena are only opposing the
confirmation of the order of invalidity as it relates
to sections
170A(1) and (7) and 158(5) to the extent that it may negatively
impact on their appeal. They are also appealing
against the orders
of invalidity 8in relation to sections 170A(1) and (7) and 158(5).
They support the confirmation of the
other orders.
With
this prelude, I now turn to the facts.
Factual
background
Mr
Phaswane was charged in the regional court, sitting at Pretoria
North, with the rape of a 13 year old girl. She was the
younger
sister of the woman that Mr Phaswane was living with as his wife.
The alleged rape occurred on 29 January 2005. After
a number of
postponements, the trial eventually got underway on 3 March 2006.
Mr Phaswane pleaded not guilty. The child gave
her evidence
in
camera
. She testified without the assistance of an
intermediary, nor through the aid of closed circuit television
(CCTV) or a similar
device.
Before
she testified, she was questioned by the court in order to
determine whether she understood the import of an oath, and
if not,
whether she understood what it meant to speak the truth. While the
court was not satisfied that she understood the
import of an oath,
it nevertheless concluded that the child understood the difference
between truth and falsehood. The child
was accordingly admonished
to speak the truth.
At
the conclusion of all the evidence, Mr Phaswane was convicted of
the rape of the child. As the court found that the offence
merited
a sentence in excess of its jurisdiction in terms of the provisions
of section 52(1) of the Criminal Law Amendment
Act,
12
the court referred the case to the High Court in Pretoria for
sentence in terms of section 52 of the Act.
13
In terms of section 52(1) an accused who is convicted in the
regional court of an offence for which a minimum of life
imprisonment
is prescribed by section 51 of the Act read with Part
1 of Schedule 2 must be committed to the High Court for sentence.
The
rape of a child under the age of 16 is such an offence.
Mr
Mokoena was charged with the rape of an 11 year old girl. The rape
was alleged to have taken place on 8 September 2005.
After three
postponements, the trial eventually got underway on 19 April 2006.
Mr Mokoena also pleaded not guilty. The case
was finalised on 7
July 2006 when Mr Mokoena was convicted of rape.
Before
the commencement of the trial, the state made an application in
terms of section 170A(1) to lead the evidence of the
child
complainant with the aid of an intermediary. In support of the
application, the state submitted that “if she testifies
in open
court she would be subjected to undue emotional stress.” The
application was based on the age of the child and the
nature of the
charges. A social worker had apparently interviewed the child
after the rape and had recommended the appointment
of an
intermediary. The application was unopposed. An intermediary, Ms
Sarah Novodia Mhlanga, an educator of some six years
experience,
who was readily available in court, was appointed. The child
testified through the intermediary.
Mr
Mokoena’s case too was referred to the High Court in Pretoria for
sentence.
These
two cases came before Bertelsmann J in the High Court in Pretoria.
He took the view that these cases raised similar constitutional

issues pertaining to the protection of child complainants and child
witnesses. He accordingly consolidated them and formulated
the
constitutional issues that he perceived the cases raised. These
issues related to the constitutional validity of some
14 provisions
of the CPA including the provisions of section 52 of the CPA. He
formulated the constitutional issues in his
directions of 15 August
2007 and called for “submissions from the affected parties or
interested parties that may be admitted
as amici curiae . . .”
directing the attention of those invited to the fact that:
“
Submissions should deal
specifically with the separate sections of the Criminal Procedure
Act that affect child victims and child
witnesses, such as sections
153, 154, 158, 161, 164, 165, 166, 167, 170A, 186, 191A, 192 and
194, examine their constitutional
compatibility and potential
amendment, adaptation or reinterpretation to adapt them to
constitutional imperatives, if necessary.”
14
He
invited a wide-ranging number of non-governmental organisations to
make written submissions on these issues.
15
The judgment of the High Court records that “submissions were
received from virtually all”
16
those who were invited to make submissions. The Centre for Child
Law, Childline South Africa, Resources Aimed at the Prevention
of
Child Abuse and Neglect (RAPCAN), Children First, Operation Bobbi
Bear, People Opposing Women Abuse (POWA) and the Cape
Mental Health
Society featured as amici in the High Court and in this Court (they
are referred to collectively as the amici.)
In addition, the High
Court invited the Minister for Justice and Constitutional
Development (the Minister), the Minister for
National Education,
the Minister for Safety and Security, the Minister for Social
Development, the Minister for Correctional
Services, the Minister
for Health and the Commissioner of the South African Police
Services to make written submissions. The
Minister is the only one
who featured as a party in both the High Court and in this Court.
As
is apparent from the above, the High Court raised these issues of
its own accord. They were neither raised in the trial
courts nor
in the proceedings before the High Court. After hearing argument,
the High Court took the view that not all the
issues that it had
raised were relevant to the two cases. As a result, a number of
these issues fell away and the court ultimately
considered the
constitutional validity of the invalidated provisions only. It
found these provisions to be inconsistent with
section 28(2) of the
Constitution and declared them invalid. The confirmatory
proceedings relate to this declaration of invalidity.
In
addition, the High Court made declaratory orders concerning the
priority to be given to the investigation and prosecution
of cases
involving children; the assistance of intermediaries and the use of
electronic devices for children testifying in
courts; and the
entitlement of children to trials conducted by court officials with
adequate skills in dealing with children
to handle cases involving
children. Furthermore, the High Court issued supervisory orders
against the Minister, the National
Commissioner of South African
Police Services and the Director of Public Prosecutions to address
the matters dealt with in
the declaratory orders and to report to
it a year later on the steps taken in that regard.
17
These
cases were thereafter referred to this Court for confirmation of
orders of invalidity in terms of section 172(2)(a) of
the
Constitution. Hence the confirmatory proceedings and the appeal by
the Minister. The Minister lodged the notice of appeal
as well as
the application for leave to appeal against the declaratory and
supervisory orders late. Each of these requires
a condonation
application. None was sought in respect of the notice of appeal;
one was sought in respect of the leave to appeal.
This is dealt
with below in paragraphs 28 to 29.
The
DPP and amici
presented factual material to both the High
Court and this Court on the current status of the implementation of
the invalidated
provisions. This material focused on: the
availability of intermediaries and the adequacy of their training;
the training
of prosecutors; and the lack of court facilities for
child complainants in sexual offence cases. This material raises
some
concern about the proper implementation of the invalidated
provisions, and, in particular, the role of this Court to
investigate
these factual allegations. Counsel for the Minister
was invited to address argument in this regard and the desirability
of
a structural injunction, if need be.
To
complete the narrative, I should refer to events that took place
subsequent to the referral of the orders of invalidity to
this
Court and those that occurred subsequent to the hearing in this
Court. In the course of oral argument in this Court,
it emerged
for the first time that the judge who had referred the orders of
invalidity to this Court had, in the meantime,
confirmed the
conviction of Mr Mokoena and thereafter postponed his case for
sentence. Counsel for the DPP kindly undertook
to furnish us with
a transcript of those proceedings and the judgment, if one was
available. Indeed, subsequent to the hearing
she furnished us with
the transcript of the proceedings held on 24 October 2008 and more
recently, with a copy of the judgment
of the High Court on the
conviction of Mr Mokoena. Neither the counsel who appeared on
behalf of the DPP nor the counsel who
appeared for the accused took
part in those proceedings.
On
the information furnished to us these matters were re-enrolled for
hearing on 1 July 2008 at the instance of the judge.
As both
accused did not appear in court on that date, these cases were
postponed to 24 October 2008. On 24 October 2008 only
Mr Mokoena
appeared; Mr Phaswane did not and was reported to be at his home in
Mozambique. The court then dealt with the case
of Mr Mokoena.
After hearing oral argument on whether his conviction should be
confirmed, the court, in an
ex
tempore
judgment,
confirmed the conviction of Mr Mokoena and postponed the case to 6
February 2009 for sentence. The
ex tempore
judgment was
signed by the judge on 9 February 2009 and, as indicated above, was
only made available to this Court some time
after that date by the
DPP. I shall refer to this judgment as the second judgment.
It is apparent from the second
judgment that the judge was fully aware that he had referred the
orders of invalidity to this
Court for confirmation. He was also
fully aware that unless the constitutional issues that he had
referred to us would have
no effect on the conviction of Mr
Mokoena, he could not proceed to consider the conviction of Mr
Mokoena without a decision
of this Court on the invalidated
provisions. As the judgment makes plain, he took the view that he
could confirm the conviction
without our decision on the
constitutional issues that he had referred to us. This rendered it
unnecessary for him to wait
for the decision of this Court on the
constitutional issues. In effect, therefore, the High Court
concluded that a decision
on the constitutional issues that it had
referred to this Court was not necessary to confirm the conviction
of Mr Mokoena.
18
It
is apparent from the second judgment that when the High Court was
considering whether to proceed and consider the conviction
of Mr
Mokoena, it was concerned about the delay that had already occurred
in these matters. The constitutional issues that
it had itself
raised and which had contributed to the delay were no longer its
concern as it took the view that our decision
on those issues was
not necessary to confirm the conviction. The consideration of the
constitutional issues by the High Court
and the referral of the
orders of invalidity have resulted in an unnecessary delay in the
finalisation of a matter which could
have been finalised during
2006, or at the very latest, 2007. Moreover, this resulted in this
Court having to consider a matter
which, on the judge’s own view,
did call for a decision on the constitutional issues. And despite
all this, the judge did
not consider it desirable to draw our
attention to any change in his view on the need to decide the
constitutional issues in
the case of Mr Mokoena. This could have
been done by sending a copy of his judgment to our Registrar.
Against
this background, I now turn to consider the questions presented in
these cases. In view of the number of issues that
must be
considered in these cases, it will be convenient to set out the
reasoning of the High Court and the contentions of
the parties
under each issue. For now, it will suffice to set out the
questions.
Before
doing so, let me dispose of the issue of condonation.
Condonation
The
judgment of the High Court was delivered on 12 May 2008. The
Minister lodged a notice of appeal against the orders of invalidity

in this Court on 10 June 2008. In terms of Rule 16(2), the notice
of appeal should have been lodged on 2 June 2008. It was
therefore
late by eight days. No condonation was sought for this lateness.
On 29 July 2008, the Minister lodged an application
for leave to
appeal against the declaratory and supervisory orders. This
application was also late as it should have been
lodged on 2 June
2008. There is an application for an order condoning this
non-compliance with the rules. The explanation
for the delay is
utterly unsatisfactory. It boils down to a failure to read the
rules of this Court carefully. This is unacceptable.
In
the view I take of the merits, the application for condonation
should nevertheless be granted despite the unsatisfactory

explanation for the delay. If the orders of invalidity are not
confirmed, it would be odd to leave the declaratory and supervisory

orders in place. Similarly, despite the absence of an application
for condonation in respect of the late filing of the notice
of
appeal against the orders of invalidity, this too should be
condoned. The orders of invalidity are, in any event, before
this
Court for confirmation. In addition, the delay was only eight
days. There is no prejudice to the other parties. These
special
circumstances weigh in favour of granting condonation. What must
be stressed, however, is that this should not be
viewed as
condoning what has become common practice for litigants
demonstrating a blatant disregard for the rules of this Court.
And
now to the questions presented.
Questions
presented
The
questions presented in these cases are the following:
May a court raise, of its own
accord,
a constitutional issue?
If so, was it appropriate for
it to do so in these cases?
If it was inappropriate for
the High Court to raise any of the constitutional issues, should
this Court nevertheless proceed
to consider whether or not to
confirm the orders of invalidity?
Should we confirm the order
of invalidity in relation to:
Section 153(3);
Section 153(5);
Section 158(5);
Section 164(1);
Section 170A(1); and
Section 170A(7)?
Was it appropriate for the
High Court to make the declaratory and supervisory orders?
Given the concerns raised by
the factual material presented by the DPP and the amici
about
the proper implementation of the provisions of the CPA that
provide protection to child complainants, should this Court
investigate
these concerns, and if found to be valid, should a
supervisory order be issued?
I
deal with these issues in turn.
May
a court raise,
of its own accord, a constitutional issue?
The
High Court took the view that it is entitled to raise a
constitutional issue of its own accord and referred to our decision

in
Potgieter
.
19
In that case, the High Court, of its own accord, raised the
constitutionality of a statutory provision and thereafter declared

it invalid. This Court, without commenting on the power of the
High Court to raise a constitutional issue of its own accord,

confirmed the order of invalidity. All the parties relied on this
case too and approached the matter on the footing that the
High
Court was entitled to raise on its own a constitutional issue. In
the light of the facts and circumstances of these cases,
it is
desirable to consider the question in some detail.
The
supremacy clause of the Constitution declares that the Constitution
is the supreme law; any law or conduct that is inconsistent
with it
is invalid.
20
Like other branches of government, the judiciary must uphold and
protect the Constitution.
21
And section 8(1) of the Constitution provides that the Bill of
Rights is binding on the judiciary as well as on the legislature

and the executive. In addition, section 39(2) provides that when
interpreting any legislation, every court must promote the
spirit,
purport and objects of the Bill of Rights. In the light of these
provisions of the Constitution, a court cannot enforce
a law that
is inconsistent with the Constitution. It follows that a court may
raise, of its own accord, the unconstitutionality
of a law that it
is called upon to enforce.
In
Carmichele
, we
considered the obligation of courts to develop the common law and
concluded that “where the common law deviates from
the spirit,
purport and objects of the Bill of Rights the courts have an
obligation to develop it by removing that deviation.”
22
In addition, we also held that the duty of judges to develop the
common law consistently with the Bill of Rights “arises
in
respect of both the civil and the criminal law, whether or not the
parties in any particular case request the court to develop
the
common law under section 39(2).”
23
And we added that “there might be circumstances where a court is
obliged to raise the matter on its own and require full
argument
from the parties.”
24
And most recently, and in the context of whether an appeal court
can, of its own accord, raise a law point, we held that “[w]here

a point of law is apparent on the papers, but the common approach
of the parties proceeds on a wrong perception of what the
law is, a
court is not only entitled, but is in fact also obliged, of its own
accord, to raise the point of law and require
the parties to deal
therewith.”
25
The rationale for permitting a
court to raise, of its own accord, a constitutional issue is rooted
in the supremacy of the Constitution.
26
Apart from this, our Constitution contemplates that there will be
a coherent system of law based on the Constitution, in particular,

the Bill of Rights. Courts have a crucial role to play in
developing this system of law with the Constitution as their

guide.
27
It is the duty of all courts to uphold the Constitution and a
court may thus raise a constitutional issue of its own accord.
28
The
real question in this case therefore is: when may a court raise, on
its own, a constitutional issue?
In
deciding these constitutional cases, the High Court held that
before a court can decide a constitutional issue, “it must
be
clear that the particular constitutional question must arise from
the facts of the case.”
29
The High Court also referred to the general principle that
constitutional issues should not be decided prior to a decision
on
factual issues or matters of law with which have no constitutional
implication, “unless the decision on the constitutional
issue is
necessary for a proper assessment of the non-constitutional issues
at stake.”
30
It took the view that “the constitutional matters [it had
raised] needed to be decided before the questions of the
correctness
of the convictions could be addressed.”
31
And concluded that “[t]hese are several aspects of the
evidence given by the complainants and the manner in which such
evidence
was given, that needed to be addressed before a final
decision on the correctness of the convictions could be
pronounced.”
32
In effect therefore the High Court found that the correctness or
otherwise of the conviction could not be decided without
first
deciding the constitutional issues. In addition, it held that as
the constitutional issues raised were of relevance
to matters in
which child complainants and child witnesses are involved, it was
in the public interest and the interests of
justice that they be
dealt with.
33
In
our adversarial system, courts are required to be impartial and
ordinarily only decide issues that the parties have properly
raised
and are properly before the court in terms of its factual
underpinnings. This principle is subject to an exception.
A court
is not always confined to issues of law explicitly raised by the
parties.
34
If a litigant overlooks a question of law which arises on the
facts, a court is not bound to ignore the question of law

overlooked.
35
Another equally relevant principle in this regard is that of the
separation of powers. Courts should observe the limits of
their
powers. They should not constitute themselves as the overseers of
laws made by the legislature. Ordinarily, therefore,
they should
raise and consider the constitutionality of laws that are properly
engaged before them and where this is necessary
for the proper
resolution of the dispute before them.
36
The
High Court correctly identified the circumstances in which a court
may, of its own accord, raise and decide a constitutional
issue.
There are two situations in which a court may, of its own accord,
raise and decide a constitutional issue. The first
is where it is
necessary for the purpose of disposing of the case before it, and
the second is where it is otherwise necessary
in the interests of
justice to do so. It will be necessary for a court to raise a
constitutional issue where the case cannot
be disposed of without
the constitutional issue being decided. And it will ordinarily be
in the interests of justice for a
court to raise, of its own
accord, a constitutional issue where there are compelling reasons
that this should be done. The
first of these instances does not
give rise to any problem. It is the second that requires some
attention.
It
is neither necessary nor desirable to catalogue circumstances in
which it would be in the interests of justice for a court
to raise,
of its own accord, a constitutional issue. This is so because this
depends upon the facts and circumstances of a
case. An example
that comes to mind is where the issue has become moot between the
parties but its immediate resolution will
be in the public interest
and the matter has been fully and fairly aired before the court.
37
There are others, but they need not be set out here.
In
Matatiele 1
, this Court raised, on its own, the
constitutional validity of the legislative process followed by a
province in approving
a constitutional amendment that had the
effect of altering its boundary. On the papers before the Court,
there were doubts
as to whether the constitutional amendment had
been enacted in accordance with the Constitution. A question then
arose as
to whether this Court should investigate the issue. The
Court held that the issue raised important constitutional questions
and concluded that “[i]t is in the interests of justice that
these important issues, which may well have a bearing on the

validity of Twelfth Amendment, be investigated.”
38
It
must be stressed that the constitutional issue sought to be raised
must arise on the facts of the case before the court.
In addition,
the parties must be afforded an adequate opportunity to deal with
the issue. A court may not ordinarily raise
and decide a
constitutional issue, in abstract, which does not arise on the
facts of the case in which the issue is sought
to be raised. A
court may therefore, of its own accord, raise and decide a
constitutional issue where (a) the constitutional
question arises
on the facts; and (b) a decision on the constitutional question is
necessary for a proper determination of
the case before it; or it
is in the interests of justice to do so. The question is whether
these requirements were met in
these cases. It is to that question
that I now turn.
Was
it appropriate to decide these constitutional issues?
Mr
Mokoena
On
the facts, the constitutional issues raised and decided by the High
Court did not arise in this matter.
39
Before the evidence of the complainant was led, the state applied
for the appointment of an intermediary citing the complainant’s

age and the nature of the charge as the basis for the application.
The application was granted. An intermediary was readily
available
in court and assisted the child to testify.
On these facts, the issue of the validity of sections
170A(1) and 170A(7) did not arise. Nor did the validity of
sections 153(3)
and 153(5) (the
in camera
provisions),
section 158(5) (the CCTV provisions) and section 164(1) (the oath
provisions) arise on the facts. When the child
testified, the
proceedings were
in camera
.
Any
doubt as to whether it was appropriate for the High Court to raise
and decide the constitutional issues in the Mokoena case
is
immediately removed by the confirmation of the conviction of Mr
Mokoena.
The
second judgment of the High Court makes it plain that the
requirements set out above were not met. The High Court took
the
view that if the conviction or otherwise of Mr Mokoena could be
confirmed without our decision on the constitutional issues
raised
by it, it was “obviously in the interest of the victim and of the
accused that the next step in the proceedings should
be taken as
soon as possible.”
40
It concluded that the conviction could be confirmed without our
decision on the constitutional issues that it had raised.
In
effect, the High Court held that a decision on the constitutional
issues that it had of its own accord raised and decided,
was not
necessary to confirm the conviction of Mr Mokoena. This conclusion
by the High Court is in stark contrast to the finding
it made in
its reported judgment, namely, that the “constitutional matters
needed to be decided before the questions of the
correctness of the
convictions could be addressed.”
41
Apart
from this, the High Court was rightly concerned about the delay in
this matter. When the matter was referred to the High
Court a
great deal of delay had already occurred. And when the High Court
raised the constitutional issues and heard argument
on them, there
was a further delay which the High Court candidly acknowledged.
42
A decision on the constitutional issues was bound to result in
further delays as it carried with it the possibility of a referral

of orders of invalidity to this Court for confirmation which, in
itself, would have resulted in a further delay. Having regard
to
this and to the fact that a decision on those issues was not
necessary to confirm the conviction of Mr Mokoena, it cannot
be
said that it was in the interests of justice for the High Court, of
its own accord, to raise and decide the constitutional
issues.
For
all these reasons the conclusion that it was inappropriate for the
High Court to raise the constitutional issues in relation
to the
Mokoena matter is irresistible. If anything, Mr Mokoena’s case
demonstrates the need for courts to be astute in raising
and
deciding constitutional issues. Unless they do, the result may be
an unnecessary delay in finalising a case in circumstances
where,
as here, the decision on the constitutional issues was not
necessary for the determination of the case before the court.
As
the High Court stated itself, elsewhere in its judgment,
constitutional matters should not be addressed prior to deciding

non-constitutional issues “unless such decision [on the
constitutional issue] is necessary for a proper assessment of the

non-constitutional issues at stake.”
43
Regrettably, the High Court did not apply this principle in the
case of Mr Mokoena.
It
was therefore inappropriate for the High Court to raise the
constitutional issues that it raised in the Mokoena matter.
Mr
Phaswane
The
only issue that the High Court could - on the facts - validly have
raised is the constitutional validity of sections 170A(1)
and
170A(7) (the intermediary provisions). The child complainant was
about 13 years old when she testified. No application
was made to
lead her evidence through an intermediary, nor did the trial court
enquire into the desirability of the appointing
of an intermediary.
The question whether an intermediary should have been appointed in
the light of the provisions of section
28(2) of the Constitution
therefore arose on the facts. It may therefore have been
appropriate for the High Court to raise
the issue of the validity
of sections 170A(1) and 170A(7). Whether a decision on the
constitutional validity was necessary
to confirm the conviction of
Mr Phaswane is another matter. In view of the conclusion that I
reach in the next question, it
is not necessary to reach any firm
conclusion in this regard.
However,
it is not clear how the oath provision (section 164(1)) arose on
the facts. As pointed out earlier, the child was
questioned by the
court to establish whether she understood the import of an oath
and, secondly, whether she understood the
difference between truth
and falsehood. The court was not satisfied that the child
understood the import of the oath, but
was satisfied that the child
knew what it meant to speak the truth. The child was therefore
admonished to speak the truth.
On these facts, the question
whether the provisions of section 164(1) exclude from testifying a
child who does not understand
the difference between truth and
falsehood simply did not arise.
Nor
did the
in camera
provisions (section 153(3) and (5)) arise.
The proceedings were held
in camera
. This issue was raised
by the trial court in view of the age of the complainant and the
nature of the offence. Section 153(3)
was not engaged. Nor was
section 153(5) engaged as the child was not a child witness, but a
child complainant in a sexual
offence case. The same goes for the
CCTV provision (section 158(5)). When the complainant testified,
she was 13 years old.
No request was made by the state for her to
give evidence through the aid of a CCTV or similar device, and
there was therefore
no refusal of any application in terms of
section 158(5). In any event, had section 158(5) been in operation
at the time,
it would have required reasons to be given immediately
in respect of this complainant.
In
addition, there is much to be said for the further argument
advanced on behalf of the Minister that some of the sections
that
were considered by the High Court were not yet in operation at the
time of the trial and, therefore, they could not have
been relevant
to the proceedings. The Sexual Offences Amendment Act effected
certain amendments to some of the sections in
issue in these cases.
It added subsection (5) to section 158; substituted subsection (3)
in section 153; substituted subsection
(1) in section 164;
substituted subsection (1) in section 170A; and added subsection
(7) to section 170A. The effect of the
amendment to subsection
170A(1) was to insert the words “biological or mental” before
the words “age of eighteen years.”
The Sexual Offences Amendment
Act was signed into law on 13 December 2007 but came into operation
on 16 December 2007.
44
Therefore, sections 153(3), 158(5), 164(1) and 170A(7), in their
amended form, only came into operation after these two cases
had
been finalised by the regional courts and had been referred to the
High Court in terms of section 52(3) of the Criminal
Law Amendment
Act. It must be recalled that these cases had been referred to the
High Court by 15 August 2007, this being
the date when the High
Court, of its own accord, raised the constitutional issues. As at
that date, the amendments were still
in bill form. Therefore, the
invalidated provisions in their amended form were not and could not
have been in issue in the
trials of the two accused and in the
proceedings before the High Court.
45
In
relation to sections 153(3), 158(5), 164(1) and 170A(7), it was
therefore inappropriate for the High Court to have raised
the
constitutionality of these provisions as they were still in bill
form at the time when the court raised and considered
their
constitutional validity. In terms of section 167(4) of the
Constitution,
46
only this Court may decide the constitutional validity of a
parliamentary bill, and, even then, this Court may only do so where

the President refers the bill to this Court pursuant to the
provisions of section 79(4)
47
of the Constitution. As section 167(4)(b) makes clear, the High
Court did not have jurisdiction to consider the constitutionality

of the provisions of the bill.
This
Court has held that the Constitution contains clear and express
provisions which preclude any court from considering the

constitutionality of a parliamentary bill save in the limited
circumstances referred to in section 79 of the Constitution.
48
The fact that at the time when the High Court judgment was
delivered the Sexual Offences Amendment Act had been promulgated,

matters not. What matters is that when the High Court raised the
constitutionality of these provisions, they were in bill
form. As
we pointed out in
Doctors for Life
,
the “crucial
time for determining whether a court has jurisdiction is when the
proceedings commenced.”
49
In the context of constitutional issues raised by the court of its
own accord, the crucial time for determining jurisdiction
is when
the court raises the issue. Therefore the question whether the
High Court had jurisdiction must be determined at the
time when the
High Court raised the issues.
The
High Court was mindful of the fact that the amendments were still
in their bill form when it heard argument.
50
It did not, however, address its jurisdiction to consider these
amendments. It had none. Given the need to respect the separation

of powers in a constitutional democracy, this is unacceptable.
Courts must be astute not to assume jurisdiction they do not
have.
Section
170A(1) stands on a different footing. However, in the light of
the conclusion I reach in the next question, it is
not necessary to
determine this issue.
The
next question is whether this Court should proceed to consider
whether to confirm the orders of invalidity in respect of
all the
provisions that were declared invalid by the High Court.
Should
this Court consider the confirmation of the invalidated provisions?
In
the
Ordinary
Court Martial
51
case this Court considered the scope of its obligations in
confirmatory proceedings in the context of mootness. In that case,

the question was whether this Court was obliged under section
172(2) to consider the declaration of invalidity of a provision

that had been declared invalid by a High Court but had subsequently
been repealed. It held that section 172(2) does not require
it to
consider confirmation of invalidated provisions in all
circumstances. It held that where the provision that had been

declared invalid has subsequently been repealed, this Court has a
discretion whether or not it should deal with the matter.
52
What should be considered in such a case is “whether any order
it may make will have any practical effect either on the
parties or
on others.”
53
The same principle should apply where, as here, the High Court has
raised a constitutional issue in circumstances where it
should not
have done so. The Court has a discretion whether to confirm the
orders of invalidity made in relation to the invalidated

provisions. This discretion, however, must be exercised with due
regard to what is in the interests of justice.
Section
172(2) of the Constitution has two clear purposes: the first is to
ensure that it is only this Court that has the power
to declare
invalid provisions in national or provincial legislation on the
grounds that they are inconsistent with the Constitution.
This
purpose flows from the express language of section 172(2). The
second purpose, perhaps less plain from the text, is
the
constitutional purpose of avoiding disruptive legal uncertainty.
This second purpose was recognised as an important constitutional

purpose as long ago, albeit against a different constitutional
backdrop, as
Zantsi
54
where Chaskalson P noted that although the issue referred to
this Court for constitutional adjudication was not in fact relevant

to the case which had to be decided by the High Court, the effect
of judgments of the Ciskei High Court relating to the issue
had
given rise to legal uncertainty. It was the need to avoid legal
uncertainty which was the basis upon which this Court
decided to
deal with the issue. This reasoning was endorsed in
Zondi
55
in the context of section 172(2).
Similar
reasoning is to be found in the
Ordinary Court Martial
56
case where Langa CJ reasoned as follows:
“
The answer to that question
depends upon a proper interpretation of section 172(2). The
subsection does not expressly provide
that this Court is obliged to
determine such appeals or matters which come for confirmation. It
is clear that the function of
the confirmation and appeal
proceedings provided for in section 172(2) and regulated by Rule 15
is to provide certainty in circumstances
where a High Court has
declared a provision of an Act of Parliament (or conduct of the
President) to be constitutionally invalid
and that
generally,
therefore, this Court will be required to hear and determine
such
proceedings.” (My emphasis.)
This
message strongly suggests that the only circumstances in which a
court may not deal substantively with an application for

confirmation is where no uncertainty will arise from the court’s
not doing so. The
Ordinary
Court Martial
case is not
authority for a general discretion as to whether to confirm or not;
only a limited one where the provision has been
repealed. That
this is the rationale of the
Ordinary
Court Martial
case
becomes more plain when one reads the test for mootness which is
narrower than mootness in other contexts. The Court said
“where
the relevant legislative provision has been repealed after the High
Court has made the order of invalidity . . . the
need for
certainty may well fall away.”
57
The Court went on to say that where the provision has
subsequently been repealed the court need not consider whether the
declaration
of invalidity should be confirmed but has a discretion
whether to do so or not. In exercising that discretion, the court
will
take into account “whether any order it may make
will
have any practical effect either on the parties or on others.
”
58
(My emphasis.)
This is a very broad understanding of
mootness.
59
In
my view, therefore, the important question to be considered first
is whether, if we refuse to consider the question whether
the
orders of invalidity made by the High Court, legal uncertainty
would arise. In my view, the answer to this question is
clear: The
High Court has declared a range of provisions to be inconsistent
with the Constitution. Our refusal to confirm
that order would
mean the order would have no force or effect; but the reasoning of
the Court would, in the circumstances of
this case, leave grave
doubts as to whether the provisions are consistent with the
Constitution or not. It is true that someone
else could challenge
the provisions and bring them to this Court, but that may well take
some considerable time during which
the state of uncertainty would
remain. That is most undesirable. It is also true that the High
Court should probably not
have done this; but it has made a
mistake, something which courts sometimes do. The consequence of
that mistake, if we refuse
to consider confirmation, will be legal
uncertainty. I am unable to agree with the proposition that it
would be constitutionally
appropriate to leave that uncertainty in
place, simply because the High Court should not have dealt with the
issue.
There
are further considerations which weigh in favour of us considering
the orders of invalidity. First, the issues raised
by the High
Court are issues that affect child complainants of sexual offences
who are not parties to criminal proceedings
but who nonetheless
possess constitutional rights. The fact that they are not parties
to the proceedings limits their ability
to vindicate their
constitutional rights in court proceedings in which they are called
as witnesses. There is a need, therefore,
to protect the rights of
the complainants of crime, in particular, child complainants in
sexual offence cases. And in the
case of children, section 28(2)
of the Constitution requires that their best interests should be
“of paramount importance”
in every matter concerning them. A
criminal trial in which a child complainant testifies, is indeed a
matter concerning that
child. It concerns the violation of the
dignity of the child. Moreover, children are regularly called upon
to give evidence
in our courts on a daily basis. While any order
we make may not have any practical effect on the accused and the
complainants
in these two cases, it will nevertheless have a
practical effect on future criminal proceedings involving child
witnesses.
Second,
there is an appeal by the Minister against both the orders of
invalidity and the declaratory and supervisory orders
granted by
the High Court. This appeal highlights the dispute between the
Minister and the DPP. Apart from this, a number
of
non-governmental bodies that specialise in the area of child abuse
have challenged the constitutionality of these provisions.
They
are therefore likely to challenge these provisions in future. The
Minister is understandably and commendably concerned
not to breach
his constitutional obligation and therefore requires clarity on the
constitutional validity of the invalidated
provisions. It is
therefore in the public interest that there should be clarity on
the constitutional validity of the invalidated
provisions. To
decline to confirm would deny him that; and would almost certainly
cause grave difficulties in the administration
of justice in many
criminal matters as judicial officers and lawyers would struggle to
know whether the statutory provisions
are unconstitutional or not.
This result does not seem to be in the interests of justice, even
if we can refuse to hear the
appeal, something about which I have
grave doubts.
Finally,
we cannot ignore the fact that, on the facts, section 170A(1) was
engaged, as the child complainant testified without
the assistance
of an intermediary. And, moreover, the amendment has now not only
been signed into law but it has also been
brought into operation.
In addition, these issues were fully argued in this Court and we
have a fully reasoned judgment of
the High Court.
It
does not follow that this Court will consider the constitutional
validity of a legislative provision in every case where
the High
Court ought not to have decided the question simply because of the
uncertainty that results from the existence of
an unenforceable
High Court order. As is apparent, other important considerations
tip the scale in this case in favour of
deciding the constitutional
validity of the provisions concerned. However, it must be
emphasised that, in future cases, it
may be appropriate for this
Court not to consider whether the High Court was wrong in coming to
the conclusion that a legislative
provision is constitutionally
invalid. If this were to be so, this Court might refuse to confirm
the High Court declaration
of invalidity without more, and simply
on the basis that the High Court ought not to have decided the
invalidity issue. This
is not a matter that has to be decided in
this case.
For
all these reasons, it is in the interests of justice to consider
the constitutional validity of the invalidated provisions.
The
constitutionality of the invalidated provisions
The
question of whether the invalidated provisions provide protection
to child complainants of sexual offences consistently
with section
28(2) of the Constitution, turns upon their proper construction.
They must be understood in the context of the
Constitution, the
Sexual Offences Amendment Act and the CPA. The exercise is
essentially one of statutory interpretation.
The starting point is
section 28(2), which provides the constitutional context within
which the invalidated provisions must
be understood and construed.
60
The
constitutional context – section 28(2) of the Constitution
Section
28(2) proclaims:
“
A child's best interests are
of paramount importance in every matter concerning the child.”
Section 28(2) must be
interpreted so as to promote the foundational values of human
dignity, equality and freedom.
61
These founding values are given effect in the Bill of Rights,
which is the cornerstone of our constitutional democracy. Section

28(2), which is part of the Bill of Rights, protects the dignity of
the child and advances the child’s equal worth and freedom
by
proclaiming that “[a] child’s best interests are of paramount
importance in every matter concerning the child.” The
reach of
section 28(2) extends beyond those rights enumerated in section
28(1): it creates a right that is independent of the
other rights
specified in section 28(1).
62
But as we said in
S v M
, “the fact that the best
interests of the child are paramount does not mean that they are
absolute. Like all rights in the
Bill of Rights their operation
has to take account of their relationship to other rights, which
might require that their ambit
be limited.”
63
It
is neither necessary nor desirable to define with any precision the
content of the right to have the child’s best interests
given
paramount importance in matters concerning the child. It is, as we
put it in
Sonderup
, “an expansive guarantee” that a
child’s best interests will be paramount in all matters
concerning the child.
64
This provision thus imposes an obligation on all those who make
decisions concerning a child to ensure that the best interests
of
the child enjoy paramount importance in their decisions. Section
28(2) provides a benchmark for the treatment and the protection
of
children.
Courts are now obliged to give
consideration to the effect that their decisions will have on the
rights and interests of the
child. The legal and judicial process
must always be child sensitive.
65
As we held in
S v M
, statutes “must be interpreted . . .
in a manner which favours protecting and advancing the interests of
children; and that
courts must function in a manner which at all
times shows due respect for children’s rights.”
66
Courts are bound to give effect to the provisions of section 28(2)
in matters that come before them and which involve children.

Indeed, section 8(1) of the Constitution makes it plain that the
Bill of Rights “binds the legislature, the executive, the

judiciary and all organs of state.”
In
the course of argument, we were referred to international and
regional instruments on the protection of the child. International

and regional instruments are relevant considerations because
section 39(1)(b) of the Constitution requires us to “consider

international law” when interpreting a provision in the Bill of
Rights, such as section 28(2). In addition, under section
233,
when interpreting any legislation, as we are called upon to do in
these cases, we are required to prefer “any reasonable

interpretation of the legislation that is consistent with
international law”. International law therefore provides a

useful interpretative tool in the interpretation of the rights in
the Bill of Rights. The international and regional instruments
on
the rights of the child therefore provide a framework within which
section 28(2), and ultimately the invalidated provisions,
can be
evaluated and understood.
67
Section
28(2) was no doubt inspired by international
68
and regional instruments
69
on the protection of the child, in particular, the United Nations
Convention on the Rights of the Child
70
(the CRC) and the African Charter on the Rights and the Welfare of
the Child.
71
In a language substantially similar to section 28(2), Article 3
(1) of the CRC proclaims that “[i]n all actions concerning

children, whether undertaken by public or private social
institutions, courts of law, administrative authorities or
legislative
bodies, the best interests of the child will be a
primary consideration.” The African Charter on the Rights and
the Welfare
of the Child, in similar terms, proclaims that “in
all actions concerning the child undertaken by any person or
authority,
the best interests of the child shall be the primary
consideration.”
72
Our country, as a State Party to these instruments, is obliged to
give effect to these instruments and to take all appropriate

legislative and other measures to give effect to these articles.
Article
3 of the CRC sets out the principle that the best interests of the
child are a primary consideration in all actions
concerning the
child. This principle was introduced because children “[b]y
virtue of their relative immaturity . . . are
reliant on
responsible authorities to assess and represent their rights and
best interests in relation to decisions and actions
that affect
them, while taking account of their views and evolving
capacities.”
73
The article specifically refers to actions undertaken by “public
or private social welfare institutions, courts of law,

administrative authorities or legislative bodies”. The United
Nations’ Committee on the Rights of the Child has commented
as
follows on Article 3(1):
“
The article refers to
actions undertaken by ‘public or private social welfare
institutions, courts of law, administrative authorities
or
legislative bodies’. The principle requires active measures
throughout Government, parliament and the judiciary. Every

legislative, administrative and judicial body or institution is
required to apply the best interests principle by systematically

considering how children’s rights and interests are or will be
affected by their decisions and actions - by, for example, a

proposed or existing law or policy or administrative action or court
decision, including those which are not directly concerned
with
children, but indirectly affect children.”
74
The
Economic and Social Council of the United Nations has developed
Guidelines on Justice Matters involving Child Victims and
Witnesses
of Crime (Guidelines). The main objective of these Guidelines is
to “set forth good practice on the consensus
of contemporary
knowledge and relevant international and regional norms, standards
and principles.” These Guidelines provide
a useful guide to the
understanding of the rights of the child to have his or her best
interests given primary consideration
in all matters concerning the
child. They provide that child complainants and witnesses should
receive special protection
and assistance that they need in order
to prevent hardship and trauma that may arise from their
participation in the criminal
justice system.
75
In particular, in the context of the best interests of the child,
the Guidelines set forth the following principle:
“
(c) While
the rights of accused and convicted offenders should be safeguarded,
every child has the right to have his or her best
interests given
primary consideration. This includes the right to protection and to
a chance for harmonious development:
(i)
Protection
.
Every child has the right to life and survival and
to be
shielded from any form of hardship, abuse or neglect,
including
physical, psychological, mental and emotional abuse and neglect;
(ii)
Harmonious
development
. Every child has the right to
a
chance for
harmonious development and to a standard of living adequate for
physical, mental, spiritual, moral and social growth.
In the case
of a child who has been traumatized, every step should be taken to
enable the child to enjoy healthy development”.
76
It
is apparent from the CRC and the Guidelines that courts are
required to apply the principle of best interests by considering

how the child’s rights and interests are, or will be, affected by
their decisions. The best interests of the child demand
that
children should be shielded from the trauma that may arise from
giving evidence in criminal proceedings. Child complainants
and
witnesses should testify out of sight of the alleged perpetrator
and in a child-friendly atmosphere.
77
This means that, where necessary, child witnesses should be
assisted by professionals in giving their testimony in court.

However, each child must be treated as a unique and valuable human
being with his or her individual needs, wishes and feelings

respected.
78
Children must be treated with dignity and compassion.
79
In my view, these considerations should also inform the principle
that the best interests of the child are of paramount importance
in
all matters concerning the child as envisaged in section 28(2) of
the Constitution.
It
is within this constitutional context that the invalidated
provisions must be understood and construed.
Before turning to consider the
constitutionality of the invalidated provisions, there is one more
matter to consider. Over
the years, this Court has developed the
proper approach to statutory interpretation that is inspired by
section 39(2) of the
Constitution.
80
Section 39(2) issues an injunction to all courts to interpret
legislation so as to “promote the spirit, purport and objects
of
the Bill of Rights.” Regrettably, a review of lower court
decisions (including the High Court in these cases) in which
the
provisions of section 170A(1) have been considered, shows that
courts do not appear to have followed the proper approach
to
statutory construction. It is therefore worth repeating that
approach here.
The
proper approach to statutory interpretation
In
Hyundai
, we considered this approach under the Constitution
and sketched it out as follows:
“
The purport and objects of
the Constitution find expression in s 1, which lays out the
fundamental values which the Constitution
is designed to achieve.
The Constitution requires that judicial officers read legislation,
where possible, in ways which give
effect to its fundamental values.
Consistently with this, when the constitutionality of legislation
is in issue, they are under
a duty to examine the objects and
purport of an Act and to read the provisions of the legislation, so
far as is possible, in
conformity with the Constitution.”
81
And
in
Daniels
, we elaborated on this approach and said:
“
Section 39(2) of the
Constitution contains an injunction on the interpretation of
legislation. It requires courts when interpreting
any legislation
to ‘promote the spirit, purport and objects of the Bill of
Rights.’ Consistent with this interpretive injunction,
where
possible, legislation must be read in a manner that gives effect to
the values of our constitutional democracy. These
values include
human dignity, equality and freedom. Thus where legislation is
capable of more than one plausible construction,
the one which
brings the legislation within constitutional bounds must be
preferred.”
82
We
cautioned, however, that an interpretation that seeks to bring a
provision within constitutional bounds should not be unduly

strained.
83
With this caution in mind, we held that courts “must prefer the
interpretation of [a provision] that will bring it within

constitutional bounds over those that do not”, and added
“provided that such an interpretation can be reasonably ascribed

to the section.”
84
The invalidated provisions must therefore be construed
consistently with section 28(2) and thus, where possible,
interpreted
so as to exclude a construction that would be
inconsistent with the principle of the best interests of the child.
With
this approach in mind, I now turn to consider the invalidated
provisions. It will be convenient to deal with section 170A(1)

first in view of its central role in the protection of child
witnesses and the number of inter-related issues that it raises.
Section
170A(1)
Section
170A(1) must be understood and construed in the context of section
170A as a whole, in particular, sections 170A(2)
and 170A(3), which
provide:
“
(1) 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 eighteen 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.
(2) (a) No examination,
cross-examination or re-examination of any witness in respect of
whom a court has appointed an intermediary
under subsection (1),
except examination by the court, shall take place in any manner
other than through that intermediary.
(b) The said intermediary may,
unless the court directs otherwise, convey the general purport of
any question to the relevant
witness.
(3) If a court appoints an
intermediary under subsection (1), the court may direct that the
relevant witness shall give his or
her evidence at any place—
(a) which is informally
arranged to set that witness at ease;
(b) which is so situated that
any person whose presence may upset that witness, is outside the
sight and hearing of that witness;
and
(c) which enables the court
and any person whose presence is necessary at the relevant
proceedings to see and hear, either directly
or through the medium
of any electronic or other devices, that intermediary as well as
that witness during his or her testimony.”
The
provisions of section 170A(1) apply to all children who are
witnesses in criminal trials. These cases before us are concerned

with the protection of child complainants in sexual offence cases.
This judgment will therefore pay more attention to these
children.
The
High Court held that section 28(2) “demands that a child should
be exposed to as little stress and mental anguish as possible”.
85
It found that the requirement of “undue” stress or suffering
in section 170A(1) demands “an extraordinary measure of
stress or
anguish before the assistance of an intermediary can be called
upon.”
86
The court reasoned that the subsection therefore requires that the
child witness should first be exposed to “undue” stress
or
suffering before an intermediary may be appointed.
87
This requirement places a limitation upon the best interests of
the child that is neither rational nor justifiable, the High
Court
found. It held that this constitutes discrimination against the
child and also infringes the child witnesses’ right
to equal
treatment, dignity and to a fair trial. It therefore concluded
that the subsection is inconsistent with section 28(2).
88
While
supporting this reasoning of the High Court, the DPP and the amici
directed their attack at the absence of the definition
of the
phrase “undue mental stress or suffering” in the legislation,
and the discretion given to the judicial officers
whether or not to
appoint an intermediary. Three inter-related arguments were
advanced in this regard. First, the absence
of a definition of the
phrase has resulted in inconsistency in the meaning given to the
phrase, with some courts placing a
narrow meaning on the phrase and
thereby denying the child complainant the protection contemplated
in the subsection. In this
regard, they drew our attention to the
decision of the High Court in
S v Stefaans
89
where the court held that “undue connotes a degree of stress
greater than the ordinary stress to which witnesses, including
witnesses in complaints of offences, of a sexual nature are subject
to.”
90
Second, it was submitted that
giving a discretion to the judicial officers makes the appointment
of the intermediary dependent
upon how judicial officers exercise
that discretion, and this adds to the inconsistency in the
application of section 170A(1).
The subsection is triggered by an
application by the state, and, if the state does not apply its mind
to the need for an intermediary,
the subsection does not come into
play, so the argument went. Even in those instances where the
state applies and leads evidence,
for example, by the mother that
the child was emotionally and mentally fragile after the rape and
expert evidence that testifying
in the presence of the accused
might very well aggravate the distressful state, the appointment of
the intermediary is not
guaranteed – it depends upon the
discretion of the court which might refuse the appointment of an
intermediary.
91
The
combined effect of the lack of consistency amongst judicial
officers on the meaning of the phrase “undue mental stress
or
suffering” and the inconsistency with which courts exercise this
discretion has led to an inconsistent application of
the subsection
by various courts across the country, with the consequent
inconsistent protection being afforded to child witnesses,
so the
argument went. In this regard, our attention was drawn to the
observation by the South African Law Reform Commission
that one of
the practical difficulties experienced by the intermediary system
is the inconsistency with which the court’s
discretion to appoint
an intermediary is exercised.
92
These
contentions and the reasoning of the High Court require us to
determine the following four inter-related questions:
What is the object of section
170A(1)?
What is the proper meaning of
the phrase “undue mental stress or suffering”?
Is the subsection capable of
being implemented in a manner that is consistent with the
Constitution?
Is the subsection
unconstitutional to the extent that it gives discretion to the
judicial officer whether or not to appoint
an intermediary?
The
object of section 170A(1)
The
subsection was introduced into the CPA by the Criminal Law
Amendment Act.
93
It was subsequently amended by the Sexual Offences Amendment Act
which inserted the words “biological or mental” before
the
words “age of eighteen years.” The CPA and the Sexual Offences
Amendment Act must therefore be read together in order
to ascertain
the object of section 170A(1).
As
section 170A(1) makes plain, it is aimed at preventing a child from
undergoing “undue mental stress or suffering” while
giving
evidence. It does this by permitting the child to testify through
an intermediary. The intermediary is required to
convey the
general purport of questions put to the child.
94
This is crucial to enable the child to understand the questions.
More importantly, section 170A(3) allows the child who testifies

through an intermediary to give evidence in a separate room away
from the accused and in an atmosphere that is designed to
set the
child at ease. At the same time, this provision ensures that the
court and the accused are able to see and hear the
child and the
intermediary through the medium of electronic or other devices.
The
subsection was no doubt enacted to protect child complainants in
sexual offence cases and other child witnesses from undergoing

undue mental stress or suffering that may be caused by testifying
in court. This object is consistent with the principle that
the
best interests of children are of paramount importance in criminal
trials involving child witnesses. This is apparent
from the
preamble to the Sexual Offences Amendment Act which acknowledges
that children are among the particularly vulnerable
members of our
society. But perhaps more importantly the preamble recognises that
“the Bill of Rights in the Constitution
of the Republic of South
Africa . . . enshrines the rights of all people in the Republic of
South Africa, including . . . the
rights of children . . . to have
their best interests considered to be of paramount importance”.
Section
170A(1) recognises the context in which a child complainant
testifies in court. It accepts that testifying in court
carries
with it a certain degree of mental stress or suffering. Its
objective is to reduce to the minimum the degree of stress
and
create an atmosphere that is conducive for a child to speak freely
about the events relating to the offence committed against
him or
her. The provision of an intermediary is intended to create this
atmosphere. The child conveys his or her experiences
to a person
skilled in dealing with children. This person knows how to
communicate with a child and to do so in a manner that
is neither
intimidating nor embarrassing to the child. But at the same time,
this person is able to communicate what the child
has conveyed to
him or her to the adults in court. In short, this person acts as a
link to bridge the communication gap between
the child and the
court.
Section
170A(1) read with section 170A(3) also recognises that children are
often intimidated by the courtroom environment,
especially if they
must confront their alleged abuser. The presence of the
perpetrator can be very upsetting to a child and
can affect the
child’s testimony. As a result of these concerns, section
170A(3) allows a child, who testifies through an
intermediary, to
be shielded in some way from the accused, typically by testifying
in another room via CCTV, or by sitting
behind a one-way screen
that blocks the child’s view of the accused but allows the child
to be seen. Read together, these
sections therefore contemplate
that a child who testifies through an intermediary will not
ordinarily testify in the presence
of the accused but will testify
from a separate room “which is informally arranged to set [the
child complainant] at ease.”
95
Section
170A(1) must therefore be construed so as to give effect to its
object to protect child complainants from exposure to
undue mental
stress or suffering when they give evidence in court. This
objective is consistent with the objective of section
28(2) as
understood in the light of Article 3 of the CRC to ensure that a
child’s best interests are of paramount importance
in all matters
concerning the child. In particular, it conforms to the Guidelines
which proclaim the right of child complainants
to be protected from
hardship and trauma that may result from their participation in the
criminal justice system.
96
As these Guidelines make clear, the protection of child
complainants includes modified court environments, making them

child-friendly, allowing the child complainant to testify out of
sight of the alleged perpetrator and testifying with the assistance

of a professional, such as an intermediary.
The
meaning of the phrase “undue mental stress or suffering”, and
the manner in which discretion conferred by the subsection
must be
exercised, must be informed by the objective of section 170A(1)
identified above. The question is whether the subsection
is
capable of being interpreted and applied so as to achieve this
objective. If the subsection is capable of a reasonable

interpretation that will bring it within constitutional bounds,
that interpretation should be preferred over an interpretation

which will not.
The
meaning of the phrase “undue mental stress or suffering”
The
CPA does not define the phrase “undue mental stress or
suffering.” The meaning of the phrase must therefore be
understood
in the context of the objective of section 170A(1), as
informed by section 28(2) of the Constitution, and the atmosphere
in
which a child testifies in court. That objective is, as I have
pointed out above, to protect children from undue mental stress
or
suffering that may be caused by testifying in court.
A court operates in an
atmosphere which is intended to be imposing. It is an atmosphere
which is foreign to a child. The child
sits alone in the witness
stand, away from supportive relatives such as a parent. The child
has to testify in the presence
of the alleged abuser and other
strangers including the presiding judicial officer, the accused’s
legal representative, the
court orderly, the prosecutor and other
court officials. While the child may have met the prosecutor
before – at least one
assumes that the prosecutor would have
interviewed the child in preparing for trial – the conversation
now takes place in
a context that is probably bewildering and
frightening to the child. Unless appropriately adapted to a child,
the effect of
the courtroom atmosphere on the child may be to
reduce the child to a state of terrified silence. Instances of
children who
have been so frightened by being introduced into the
alien atmosphere of the courtroom that they refuse to say anything
are
not unknown.
97
The
child would be questioned by the judicial officer in order to
satisfy himself or herself that the child understands that
he or
she is under a duty to speak the truth or understands the import of
the oath. Regrettably this questioning, although
well-meaning, is
often theoretical in nature and may increase the child’s sense of
confusion and terror. The child may wonder
why he or she is being
subjected to this questioning. That is not all.
The
child is obliged to give evidence in the presence of the accused.
This is what happened in the Phaswane matter. The accused
will be
a few paces from the child, and will invariably be staring at the
child while the child gives evidence. Perhaps the
accused will
have threatened the child with death or physical harm if he or she
should tell anyone about what the accused had
done to him or her.
At this stage the child may wonder whether he or she will be
punished for speaking the truth that the
judicial officer had
admonished him or her to speak. This may put the child to an
unfortunate choice: either testify and risk
the accused carrying
out his or her threat, or say nothing. In these circumstances, it
would not be surprising for the child
to refuse to testify.
If
the child decides to speak, then the prosecutor will take him or
her through his or her evidence. The questioning of a child

requires special skills, similar to those required to run day care
centres or to teach younger children. Questioning a child
in court
is no exception: it requires a skill. Regrettably, not all of our
prosecutors are adequately trained in this area,
although quite a
few have developed the necessary understanding and skill to
question children in the court room environment.
If the
questioning by the prosecutor is not skilled, the result is what
happened in the Phaswane matter. The following exchange
between
the prosecutor and the interpreter illustrates the point:
“
PROSECUTOR
: What did
you mean when you said that he had slept with you?
–
He had raped me.
What do you mean with rape, we
must know what you understand under rape?
–
Yes I personally do not
know what rape is, I heard from people who say that there is a thing
called rape.
Okay but we need to know what
happened, you were tripped and then you fell on the ground and he
took out a condom. We must know
why do you say you have been raped,
what did he do to you?
–
Rape is sexual intercourse.
What is sexual intercourse?
–
Sexual intercourse is when
one person has sex with another person.
But we do not know what that
means, we need to know what you think what happened, not what you
think. You must tells us why
do you say that you have been raped
and why did you say that the accused had sexual intercourse with
you. What did he do, did
he take his finger and scratch you on your
ear or what did he do, why do you say it is sexual intercourse?
INTERPRETER
: I think
with the permission of the court of course, I do understand what the
state wants to elicit from the witness, it is just
that the
Prosecutor does not have proper words which can be cut down to the
level of the understanding of this. All the question
the words that
come, I saw a pitch high. The state does not have proper words
which are curtailed to the level of the understanding
of this, and I
do understand what she is saying but I am just afraid to say what
she did not say, because I end up being testifying.”
The
child is then cross-examined with the sole purpose of discrediting
the child. If the accused is not legally represented,
the accused
may conduct the cross-examination. The effect of this on the child
can be terrifying especially where the accused
is an adult relative
of the child. The child may agree with questions put by the
accused for fear of punishment if he or she
disagrees. If the
cross-examination is conducted by the legal representative, the
child will be taken through his or her evidence
in the most minute
detail. The cross-examination may bring out facts that were so
grotesque that the child could never have
imagined being forced to
recount them. The child will be taken to task for placing events,
often months after they had occurred,
out of sequence and for not
being able to remember important details concerning the events. In
this intimidating and bewildering
atmosphere, the child complainant
is required to relive and reveal sordid details of the horror that
he or she went through.
And
moreover, the child has been telling the same story to several
adults by now, most of whom are strangers: first, to a relative
to
whom the report was first made; then to a mother; then to a social
worker, if she or he has been lucky to have been referred
to one;
then to a district surgeon or a medical practitioner – this time,
the story-telling is accompanied by physical examination;
then to a
police officer at the charge office where the offence is reported;
then to the investigating officer who will now
be in charge of the
case, where more details are now required; and then perhaps to the
public prosecutor for a pre-trial interview,
if the child is lucky
to have one or if the public prosecutor has the time to conduct
one. At times, the abuse may have been
discovered by a caring
teacher at a day-care centre or at school, and this adds to the
list of people to whom the story is
told. Then to the court,
before an audience of strangers and in the atmosphere described
above.
Those
who know more about child behaviour from a professional point of
view tell us that children are reluctant to relate their
sad and
often sordid experiences to several different people. As a result,
repetition tends to heighten their sense of shame
and guilt at what
happened to them.
98
A
child complainant who relates in open court in graphic detail the
abusive acts perpetrated upon him or her and in the presence
of the
alleged perpetrator, will in most cases experience undue stress or
suffering. This experience will be exacerbated when
the child is
subjected to intensive and at times protracted and aggressive
cross-examination by the alleged perpetrator or
legal
representative. Cumulatively, these experiences will often be as
traumatic and as damaging to the emotional and psychological

well-being of the child complainant as the original abusive act
was. Indeed, High Courts have come to accept that the giving
of
evidence in cases involving sexual offences exposes complainants
“to further trauma possibly as severe as the trauma caused
by the
crime.”
99
It is precisely this secondary trauma that section 170A(1) seeks
to prevent.
Having
regard to this, it must be accepted that a child complainant in a
sexual offence who testifies without the assistance
of an
intermediary faces a high risk of exposure to undue mental stress
or suffering. The object of section 170A(1) read with
section
170A(3) is precisely to prevent this risk of exposure. It does
this by making provision for the child to testify through
the
intermediary away from the accused and in a child-friendly room.
Thus construed, the problem becomes one of implementation
as the
cases to which our attention is drawn demonstrate.
Implementation
of section 170A(1)
Contrary
to the reasoning of the High Court and the submissions of the
amici, the subsection does not require that the child
first be
exposed to undue mental stress or suffering before the provision
may be invoked. As I have held above, the object
of the subsection
is to prevent the child from being exposed to undue mental stress
or suffering as a result of testifying
in court. A construction of
the subsection that requires the child to be exposed to undue
mental stress or suffering first,
before an intermediary may be
appointed, is therefore inimical to the objectives of the both
section 28(2) and section 170A(1).
Indeed, it is inconsistent with
Article 3(1) of the CRC. It must therefore be rejected.
What
the subsection contemplates is that a child will be assessed prior
to testifying in court in order to determine whether
the services
of an intermediary should be used. If the assessment reveals that
the services of an intermediary are needed,
then the state must
arrange for an intermediary to be present in court when the accused
goes on trial. At the commencement
of the trial, the state must
then apply under the subsection for the appointment of an
intermediary. Indeed, this is the procedure
that was followed in
the Mokoena matter. The child was assessed by a social worker
prior to testifying in court. Following
that assessment, the
social worker recommended that an intermediary should be appointed.
On the date of the trial, and before
the child testified, the
state applied for the appointment of an intermediary.
This
is the procedure that should ordinarily be followed in all matters
involving child complainants in sexual offence cases.
If this
procedure were to be followed as a matter of practice, this would
ensure that the objectives of both the subsection
and section 28(2)
are achieved. This should become a standard pre-occupation of all
criminal courts dealing with child complainants
in sexual offence
cases. To the extent that current practice may fall short in this
regard, proper regard for constitutional
rights of children means
that in every criminal trial in which a child complainant in a
sexual offence case is to testify,
the court must enquire into the
need for the appointment of an intermediary where the state does
not raise the issue.
100
If necessary, the presiding judicial officer must initiate an
enquiry into the desirability of appointing an intermediary.
What
must be stressed here are two points already made: first, that the
provisions of sections 170A(1) and 170A(3) were enacted
to protect
the child from the stress and trauma that may arise from testifying
in court. The second is that section 28(2)
is an injunction to
courts to apply the principle that the best interests of the child
are of paramount importance in all matters
concerning the child.
It is incumbent upon all those who are responsible for the
administration of justice to apply the principles
of our criminal
law and criminal procedure so as to protect child complainants in
sexual offence cases from secondary trauma
that may arise from
testifying in court. Judicial officers are therefore obliged to
apply the best interests principle by
considering how the child’s
rights and interests are, or will be, affected by allowing the
child complainant in a sexual
offence case to testify without the
aid of the intermediary. It follows from this, therefore, that
where the prosecutor does
not raise the matter, the judicial
officer must, of his or her own accord, raise the need for an
intermediary to assist the
child complainant in a sexual offence
case in giving his or her testimony.
101
Properly
construed, therefore, section 170A(1) read with section 170A(3)
contemplates that in every trial in which a child is
to testify,
the court will enquire into the desirability of appointing an
intermediary. This is even more so because the child
complainants
are not parties to the proceedings but have constitutional rights
which must be protected by the court. The nature
of the enquiry
that is required is not akin to a civil trial which attracts a
burden of proof. It is an enquiry which is conducted
on behalf of
the interests of a person who is not party to the proceedings but
who possesses constitutional rights. It is
therefore inappropriate
to speak of the burden of proof being placed upon a party to an
application for an intermediary, as
some High Courts have done.
In
S v F
,
102
for example, the court equated an enquiry into the desirability of
appointing an intermediary with a trial in which the state
bears
the burden of proof to establish the need for the appointment of an
intermediary on a balance of probabilities.
103
I am unable to agree with this view. This approach to the enquiry
overlooks the objectives of the enquiry. The overriding

consideration at that enquiry is to prevent the child from exposure
to undue stress that may arise from testifying in court.
What is
required of the judicial officer is to consider whether, on the
evidence presented to him or her, viewed in the light
of the
objectives of the Constitution and the subsection, it is in the
best interests of the child that an intermediary be
appointed.
Following
the approach outlined here not only protects child complainants
from unnecessary trauma, it helps to ensure that the
trial court
receives evidence that is more freely presented, more likely to be
true and better understood by the court. Given
the special
vulnerability of the child witness, the fairness of the trial
accordingly stands to be enhanced rather than impeded
by the use of
these procedures. In my view, these special procedures should not
be seen as justifiable limitations on the
right to a fair trial,
but as measures conducive to a trial that is fair to all.
Is
section 170A(1) unconstitutional to the extent that it gives
judicial officers discretion whether to appoint intermediaries?
The
DPP and the amici also challenged the constitutionality of the
subsection on the grounds that it leaves the appointment
of the
intermediary to the discretion of the judicial officer. This is
impermissible because it leads to inconsistency in
the application
of the subsection and this does not afford the children the
protection contemplated in section 28(2) of the
Constitution and
the subsection, it was argued. Reduced to its essence, the
contention is that because the discretion is likely
to be exercised
incorrectly by some judicial officers, the subsection is therefore
unconstitutional.
The
conferral of discretion on judicial officers cannot be
unconstitutional simply because some judicial officers may exercise

the discretion incorrectly. The question, therefore, is whether
the subsection is unconstitutional merely because it confers

discretion on judicial officers whether to appoint an intermediary.
This
Court has recognised that there are obligations in the Bill of
Rights that are placed upon the judicial branch that will
be
violated if placed at the discretion of a court. In
Zuma
,
104
the Court examined the constitutionality of the presumption
relating to the admissibility of confessions in criminal trials.

Kentridge J stated that “[t]he presumption of innocence [in
section 35(3)(h) of the Constitution] cannot depend on the exercise

of discretion.”
105
On the other hand, the Court has often endorsed the exercise of
discretion by judicial officers as compatible with the applicable

constitutional obligation at issue.
106
The
importance of judicial discretion cannot be gainsaid. Discretion
permits judicial officers to take into account the need
for
tailoring their decisions to the unique facts and circumstances of
particular cases. There are many circumstances where
the
mechanical application of a rule may result in an injustice. What
is required is individualised justice, that is, justice
which is
appropriately tailored to the needs of the individual case. It is
only through discretion that the goal of individualised
justice can
be achieved. Individualised justice is essential to the proper
administration of justice. As Dean Pound pointed
out some fifty
years ago:
“
in no legal system, however
minute and detailed its body of rules, is justice administered
wholly by rule and without any recourse
to the will of the judge and
his personal sense of what should be done to achieve a just result
in the case before him.”
107
However,
discretion must be confined, structured and checked. This is the
function of the Constitution and the law.
In
Dawood
, albeit in a different context, we held that
discretion “permits abstract and general rules to be applied to
specific and
particular circumstances in a fair manner.”
108
Judicial officers are provided with discretion to ensure that the
principles and values with which they work can be applied
to the
particular cases before them in order to achieve substantive
justice. Discretion is a flexible tool which enables judicial

officers to decide each case on its own merits. In the context of
the appointment of an intermediary, the conferral of judicial

discretion is the recognition of the existence of a wide range of
factors that may or may not justify the appointment of an

intermediary in a particular case.
What
must be stressed here is that every child is unique and has his or
her own individual dignity, special needs and interests.
And a
child has a right to be treated with dignity and compassion.
109
This means that the child must “be treated in a caring and
sensitive manner.”
110
This requires “taking into account [the child’s] personal
situation, and immediate needs, age, gender, disability and
level
of maturity”.
111
In short, “[e]very child should be treated as an individual with
his or her own individual needs, wishes and feelings.”
112
Sensitivity requires the child’s individual needs and views to
be taken into account.
113
The exercise of judicial discretion in the appointment of an
intermediary allows a judicial officer to assess “the individual

needs, wishes and feelings” of each child. This, in my view,
conforms to the principle that the best interests of the child
must
be of paramount importance in matters concerning the child.
In
a matter involving a child, the conferral of judicial discretion
enables courts, on a case-by-case basis, to determine whether
the
services of an intermediary are required. What must be emphasized
is that section 170A(1) deals with witnesses generally
who are
under the age of 18 years. This includes complainants in sexual
offence cases, child witnesses to sexual offence cases
and
witnesses to other offences generally. The nature of the evidence
that the witnesses contemplated in the subsection will
give, will
therefore vary according to the offence in respect of which they
testify. So too will the stress of giving the
evidence. This
variation will invariably influence the necessity or otherwise of
appointing an intermediary. Other factors
that are relevant
include the level of maturity of the child, the age of the child,
the nature of the offence, the independence
of the child and the
feelings and wishes of the child.
A
child who is 17 years old who is outspoken and assertive may
consider it an affront to his or her dignity to suggest that
he or
she should testify through an intermediary. Similarly, it would be
absurd to expect a child of that age whose only testimony
relates
to identifying his or her stolen cellular phone to testify through
an intermediary. Yet a child who is of the same
age who is a
complainant in a rape case, who is shy and was severely traumatised
by the rape, may need the services of an intermediary.
The
exercise of judicial discretion enables the court to apply the
provisions in a flexible manner bearing in mind that the
primary
objective is to give effect to the provisions of section 170A(1)
and section 28(2) of the Constitution.
The
exercise of discretion conferred by section 170A(1) is, however,
circumscribed. Its exercise is constrained by the Constitution,
in
particular, section 28(2). As has been observed, “[t]he spirit
and the tenor of [a] constitution must therefore preside
and
permeate the processes of judicial interpretation and judicial
discretion.”
114
It is also constrained by the purpose for which it was conferred:
to safeguard the best interests of children. The discretion
in the
subsection must therefore be exercised with due regard to the
objective to protect a child from undue stress or suffering
that
may arise from testifying in court.
In
my view, the answer to the problems identified by the amici
and
the DPP does not lie in making the appointment of an intermediary
compulsory in every sexual offence case in which a child

complainant is involved. It would not be in the best interests of
the child who wishes to confront his or her abuser in court
to
impose an intermediary on that child. This would ignore the
child’s needs, wishes and feelings. Nor does the answer
lie in
making the appointment compulsory unless the circumstances of the
child dictate otherwise. This may well undermine
the right of the
child to be treated as an individual with his or her individual
needs, wishes and feelings. A child who wishes
to testify on his
or her own may have to convince the court of this fact.
The
answer, in my view, lies in the proper interpretation and
application of sections 170A(1) and 170A(3). These subsections

contemplate that in all cases of sexual offences involving a child
complainant, the court will enquire into the desirability
or
otherwise of appointing an intermediary. This enquiry must be
conducted with due regard to the principle that the child’s
best
interests are of paramount importance in criminal proceedings
concerning a sexual offence against a child.
For
all these reasons, the discretion conferred on the judicial
officers on whether to appoint an intermediary is not inconsistent

with section 28(2). It follows, therefore, that the challenge
based on discretion must be rejected.
To
conclude, therefore, section 170A(1) is designed to ensure the
paramountcy of the best interests of the child complainant
in
criminal proceedings in which the child testifies. Properly
interpreted and applied in the light of section 28(2) of the

Constitution and its objective, as it must be, the subsection
achieves that end. It does not exclude the protection that section

28(2) requires to be afforded to children.
If
the objective of section 28(2) is not achieved, then the fault lies
not in the provision itself but in the manner in which
it is
interpreted and implemented. An incorrect interpretation or
implementation of a statute does not render the provisions

unconstitutional. If the provisions are interpreted and
implemented in an unconstitutional manner, the solution lies in

making judicial officers and prosecutors aware of their
constitutional obligations to ensure that the best interests of
children
are of paramount importance in criminal trials involving
child complainants, and are protected as required by section 28(2)

of the Constitution and section 170A(1) of the CPA. In this
context, judicial education in this area may be of vital importance

given our new constitutional dispensation and its ethos. So too is
the training of prosecutors and other officials who deal
with
victims of sexual offences, for prosecutors have a special
responsibility in relation to section 170A(1). This is so
because
the first assessment on whether an intermediary is to be used is
made by the prosecutor.
For
all these reasons, I conclude that section 170A(1) is not
unconstitutional.
It
will be convenient to deal with section 170A(7) later when I deal
with section 158(5) as these provisions raise similar issues.
Section
153(3) and (5)
The
relevant provisions of section 153 are subsections (3), (3A), (4)
and (5). These subsections provide:
“
(3) In criminal proceedings
relating to a charge that the accused committed or attempted to
commit—
(
a
) any
sexual offence as contemplated in
section 1
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
, towards
or in connection with any other person;
(
b
) any
act for the purpose of furthering the commission of a sexual offence
as contemplated in
section 1
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007
, towards or in connection
with any other person; or
(
c
) extortion
or any statutory offence of demanding from any other person some
advantage which was not due and, by inspiring fear
in the mind of
such other person, compelling him to render such advantage,
the court
before which such proceedings are pending may, at the request of
such other person or, if he is a minor, at the request
of his parent
or guardian, direct that any person whose presence is not necessary
at the proceedings or any person or class of
persons mentioned in
the request, shall not be present at the proceedings: Provided that
judgment shall be delivered and sentence
shall be passed in open
court if the court is of the opinion that the identity of the other
person concerned would not be revealed
thereby.
(3A) Any
person whose presence is not necessary at criminal proceedings
referred to in paragraphs (
a
)
and (
b
)
of subsection (3), shall not be admitted at such proceedings while
the other person referred to in those paragraphs is giving
evidence,
unless such other person or, if he is a minor, his parent or
guardian or a person
in loco parentis
,
requests otherwise.
(4) Where an
accused at criminal proceedings before any court is under the age of
eighteen years, no person, other than such accused,
his legal
representative and parent or guardian or a person
in
loco parentis
, shall be present at
such proceedings, unless such person’s presence is necessary in
connection with such proceedings or is
authorized by the court.
(5) Where a
witness at criminal proceedings before any court is under the age of
eighteen years, the court may direct that no
person, other than such
witness and his parent or guardian or a person
in
loco parentis
, shall be present at
such proceedings, unless such person’s presence is necessary in
connection with such proceedings or is
authorized by the court.”
Sections
153(3)
and
153
(5) deal with holding proceedings
in camera
(the
exclusion of the public from the proceedings).
Section 153(3)
provides that the public may be excluded from criminal proceedings
relating to a charge of any sexual offence or any of the
offences
mentioned in
section 153(3)
upon the request of the complainant or
the guardian or parent of a minor complainant. However, the
decision whether to exclude
the public from the proceedings lies
within the discretion of the judicial officer.
Section 153(5)
deals with other child witnesses, and places the discretion to hold
proceedings
in camera
solely in the hands of the court. By
contrast, proceedings involving a child accused are always held
in
camera
. The High Court held that these subsections make a
differentiation particularly in the case of sexual offences which
“appears
to be lacking in rational justification and therefore
discriminates unfairly between a child accused and child victims
and
child witnesses.”
115
In
attacking the declaration of invalidity in respect of
sections
153(3)
and
153
(5), the Minister, in oral argument, relied heavily
on the provisions of
section 153(3A).
It was submitted that this
subsection protects the child complainant in sexual offence cases
by requiring that the child testify
in camera
. The Minister
further submitted that the discretion given to courts to decide
whether proceedings should be held
in camera
is necessary to
enable courts to weigh up competing interests. The competing
interests involved were said to be the requirements
of open justice
on the one hand, and, on the other hand, the need to protect the
child by holding proceedings
in camera
where necessary.
The
criticism directed at the High Court’s failure to have regard to
the provisions of
section 153(3A)
is misplaced. So too is reliance
on that provision to answer the High Court’s difficulty with
section 153(3).
Section 153(3A)
concerns the exclusion of the
public from criminal proceedings involving a sexual offence while
the child complainant is giving
evidence. This subsection does not
require proceedings to continue
in camera
after the child
complainant has completed his or her testimony. The exclusion of
the public from the entire proceedings is
regulated by
section
153(3)
which makes the exclusion dependent upon a request by the
parent or guardian of the child complainant. It is this subsection

which was the target of the High Court and the amici.
Section
153(3)
provides that the court has a discretion whether to “direct
that any person whose presence is not necessary at the proceedings

or any person or class of persons mentioned in the request,
shall
not be present at the proceedings
”
116
(emphasis added). By contrast,
section 153(3A)
provides that the
public shall not be present at criminal proceedings involving a
sexual offence while the complainant is giving
evidence.
But the subsection does not require the entire proceedings to be
held
in camera
:
it requires only that the proceedings be held
in
camera
“while [the complainant] is
giving evidence”. Its sphere of operation is therefore limited
to the stage when the complainant
is giving evidence, and it is
plain from the wording of the subsection that the court has no
discretion. However, once the
complainant has given his or her
evidence, the proceedings cease to be
in
camera
.
If
the parent or guardian of a child complainant wishes the
proceedings to be
in camera
after the child complainant has
testified, the parent or guardian must make a request under
section
153(3).
And as pointed out above, the court has a discretion
whether to grant the request. In the case of a child witness,
section 153(5)
provides that the court may direct that the public
be excluded from the proceedings. The subsection also contemplates
that
the presiding officer will act on his or her own initiative.
This is probably what happened in the Phaswane matter, where the

court, of its own accord, excluded the public from the proceedings.
In the case of child witnesses, the court has a discretion.
By
contrast, in the case of a child accused,
section 153(4)
provides
that the public must be excluded from the proceedings. The
presiding officer has no discretion.
It
is this differentiation between, on the one hand, child
complainants and child witnesses and, on the other hand, a child

accused, which the High Court found unconstitutional. It held that
this differentiation is irrational and discriminates unfairly

against child complainants and child witnesses.
It
is not clear whether the High Court found these provisions to be
inconsistent with the equal protection clause (section 9(1))
or the
anti-discrimination clause
(section 9(3))
,
for it found that the differentiation is both irrational and
constitutes unfair discrimination. The High Court did not conduct

the limitation analysis. This Court has, in the past,
emphasised
the importance of identifying the specific provision of the Bill of
Rights that has been infringed. The question of whether
a right in
the Bill of Rights has been violated generally involves a
two-pronged enquiry. The first enquiry is whether the
invalidated
provision limits a right in the Bill of Rights. If the provision
limits a right in the Bill of Rights, this right
must be clearly
identified. The second enquiry is whether the limitation is
reasonable and justifiable under section 36(1)
of the
Constitution.
117
Courts considering the constitutionality of a statutory provision
should therefore adhere to this approach to constitutional

adjudication.
The
child complainant and the child accused are not similarly situated.
What distinguishes the child accused from the child
complainant is
that the child accused must remain in court throughout the
proceedings. The child accused is entitled to hear
all the
evidence against him or her so as to confront it. Indeed, one of
the fair trial rights of an accused is the right
“to be present
when being tried.” To the extent that the child accused is
obliged to remain in court throughout the entire
proceedings, the
proceedings must be
in camera
. By contrast, child
complainants are not so obliged. They are not required to remain
in the courtroom after they have completed
their testimony.
However, while the child complainant in a sexual offence case is
giving evidence, the public must be excluded.
In these
circumstances, the differentiation that the subsections make
between, on the one hand, child complainants in sexual
offence
cases and, on the other hand, the child accused, is rationally
related to the duration of time that each is required
to spend in
the proceedings.
Nor
does the differentiation amount to unfair discrimination. The
protection accorded to each child is related to the amount
of time
each spends in court. While both remain in court, the public are
excluded from the proceedings. And, if for any reason,
the child
complainant is required to remain in court after completing his or
her evidence, the public may be excluded under
section 153(3).
Another
constitutional defect that the High Court found in section 153(3)
is that it makes the exclusion of the public from
the proceedings
dependent upon a request by, or on behalf of, the minor
complainant’s parent or guardian. A court is not
obliged to draw
the attention of the parent or guardian to this provision and the
protection available to the child if the
proceedings were
in
camera
,
it was argued. As pointed out earlier, the
principle that the best interests of the child are of paramount
importance in all
matters concerning the child imposes an
obligation on presiding officers to draw the provisions of section
153(3) to the attention
of the complainant’s parent or guardian.
Paragraph 19 of the Guidelines makes it plain that child
complainants and their
parents or guardians have a right to be
informed of the availability of protective measures. The same
considerations require
the presiding officer to provide any other
child witness the protection contemplated in section 153(5). This
is more so because
the subsection contemplates that the presiding
officer shall act of his or her own initiative.
It
is true that, in the case of other child witnesses, it is not
peremptory that they testify
in camera
. The matter is left
to the discretion of the court. Child witnesses stand on a
different footing from child complainants
in sexual offence cases.
Child witnesses may be called to testify on a wide variety of
offences ranging from assault, murder,
theft to malicious injury to
property. Similarly, the nature of the evidence that they may be
called upon to give may differ
remarkably from one case to another.
A boy of 15 years may be called upon to testify that he saw an
accused remove a bicycle
from a neighbour’s house. A 17 and a
half year old girl may be called upon to give evidence to the
effect that she received
a credit card from an accused and swiped
it through a credit card machine. Yet another child may be called
upon to testify
on some gruesome murder or sexual offence. The
identity of the child complainant is protected from disclosure by
section 154(3).
That provision prohibits the disclosure of the
identity of a child complainant.
Given
this wide-ranging nature of the evidence that child witnesses in
general may be called upon to give, and the wide-ranging
ages of
child witnesses, it is desirable that the question whether
proceedings should be held
in camera
should be answered on a
case-by-case basis. Indeed, it is desirable that courts should
have the discretion in each case to
assess whether, having regard
to the nature of the evidence to be given and the age of the child,
the proceedings should be
held
in camera
or whether the
child should testify
in camera
. However, these
considerations must always be balanced against the need for all
witnesses to testify in an open court and
for all proceedings to be
held in an open court consistently with the principle of open
justice.
The principle of open justice
is an important one which this Court has recognised.
118
In
Shinga
, this Court said the following of and concerning
the principle of open justice:
“
Seeing justice done in court
enhances public confidence in the criminal-justice process and
assists victims, the accused and the
broader community to accept the
legitimacy of that process. Open courtrooms foster judicial
excellence, thus rendering courts
accountable and legitimate. Were
criminal appeals to be dealt with behind closed doors, faith in the
criminal justice system
may be lost. No democratic society can risk
losing that faith. It is for this reason that the principle of open
justice is
an important principle in a democracy.”
119
And
this brings me to the role of judicial discretion in sections
153(3) and 153(5).
Both
sections 153(3) and 153(5) give the court discretion whether to
hold the proceedings
in camera
. Section 153(3) applies to
all complainants in offences involving any sexual offences or
extortion, or any of the offences
mentioned in the subsection.
This includes a child complainant in a sexual offence case. This
is of course subject to the
provisions of section 153(3A) which
requires the public to be excluded while a complainant in a sexual
offence case is giving
evidence. Section 153(5) applies to other
child witnesses. The subsections are aimed at protecting the
identity of the complainants
in those offences.
The
exercise of discretion is necessary in deciding whether to hold
criminal proceedings
in camera
. As pointed out earlier,
open justice requires that all criminal proceedings be held, and
all witnesses testify, in open court.
The decision whether
proceedings should be held
in camera
involves the weighing
up of competing interests, namely, on the one hand, the right to
open justice and, on the other hand,
protecting children and the
identity of witnesses. Discretion is a tool which enables courts
to mediate between these competing
interests.
For
all these reasons, the finding that the differentiation between a
child accused, on the one hand, and child complainants
or child
witnesses, on the other hand, is irrational, cannot be sustained.
Nor can the finding that sections 153(3) and 153(5)
discriminate
unfairly against child complainants and child witnesses be
sustained. It follows therefore that sections 153(3)
and 153(5)
are not unconstitutional.
Section
158(5) and section 170A(7)
Section
158 provides:
“
(1) Except as otherwise
expressly provided by this Act or any other law, all criminal
proceedings in any court shall take place
in the presence of the
accused.
(2)
(
a
) A
court may, subject to section 153, on its own initiative or
on application by the public
prosecutor, order that a witness or an accused, if the witness or
accused consents thereto, may give
evidence by means of closed
circuit television or similar electronic media.
(
b
) A
court may make a similar order on the application of an accused or a
witness.
(3) A court
may make an order contemplated in subsection (2) only if facilities
therefor are readily available or obtainable and
if it appears
to the court that to do so would—
(
a
) prevent
unreasonable delay;
(
b
) save
costs;
(
c
) be
convenient;
(
d
) be
in the interest of the security of the State or of public safety or
in the interests of justice or the public; or
(
e
) prevent
the likelihood that prejudice or harm might result to any person if
he or she testifies or is present at such proceedings.
(4) The
court may, in order to ensure a fair and just trial, make the giving
of evidence in terms of subsection (2) subject to
such conditions as
it may deem necessary: Provided that the prosecutor and the accused
have the right, by means of that procedure,
to question a witness
and to observe the reaction of that witness.
(5) The court shall provide
reasons for refusing any application by the public prosecutor for
the giving of evidence by a child
complainant below the age of 14
years by means of closed circuit television or similar electronic
media, immediately upon refusal
and such reasons shall be entered
into the record of the proceedings.”
Section
170A(7) provides:
“
The court shall provide
reasons for refusing any application or request by the public
prosecutor for the appointment of an intermediary
in respect of
child complainants below the age of 14 years, immediately upon
refusal and such reasons shall be entered into the
record of the
proceedings.”
Section
158 makes provision for a witness or an accused to give evidence by
means of CCTV or similar electronic media. This
can be done at the
request of the state, witness, accused, or at the court’s
initiative. An order to this effect may be
made if the facilities
are readily available. Section 158(5) requires the court to
furnish reasons for refusing to make an
order in terms of this
subsection where a child complainant, who is under the age of 14
years, is involved, and to give those
reasons immediately. Section
170A(7) deals with refusal to appoint an intermediary and provides
that in the case of a child
under the age of 14 years, the court
must immediately give reasons for refusing to appoint an
intermediary.
The
High Court found that sections 158(5) and 170A(7) discriminate
between children under the age of 14 years and those over
the age
of 14 years. It held that the subsections are irrational and
discriminatory and therefore unconstitutional.
120
The
finding of unconstitutionality appears to rest on the assumption
that the court is not required to give reasons where the
refusal
relates to a child over the age of 14 years. This assumption
ignores the principle of constitutional interpretation
which
requires courts, where possible, to construe a statute in a manner
that promotes the rights in the Bill of Rights. The
achievement of
equality is one of the founding values of our constitutional
democracy, a value echoed in the equality provision
of the Bill of
Rights (section 9). Section 158(5) must be read, if possible, to
promote equality and not to promote inequality.
To
this must be added the principles of accountability, responsiveness
and openness which are part of the founding values of
our
constitutional democracy.
121
These principles require that courts respond to requests for the
use of CCTV or similar electronic media and to account for
any
decisions they make in this regard. Courts account by giving
reasons for their decisions. The principle of accountability

provides insurance against arbitrariness. The need to give reasons
for a decision refusing the use of CCTV must be read as
implicit in
section 158(5) unless such a construction is inconsistent with the
subsection. The same is true of section 170A(7).
To
construe sections 158(5) and 170A(7) as not requiring the court to
furnish reasons for refusing the use of CCTV or to appoint
an
intermediary for children over the age of 14 years, as the case may
be, would render these subsections inconsistent with
the
Constitution. Consistent with the settled principle of
constitutional construction, the construction which will bring

these subsections within constitutional bounds must be preferred to
that which will not. The importance of the guarantee of
equality,
and the principles of accountability and responsiveness in our
constitutional democracy, cannot be gainsaid. These
values should
therefore be enforced unless it is clear that the legislature has
expressly or by necessary implication enacted
that they should not
apply. For stronger reasons, this approach should apply when
construing a statutory provision in order
to determine its
constitutionality.
Sections
158(5) and 170A(7) are capable of being read in a manner that is
consistent with the Constitution. It is that construction
that
must be preferred to any other construction that would render the
subsection unconstitutional. These subsections must
be construed
to require that a court must give reasons for refusing to allow the
use of CCTV or to appoint an intermediary
in respect of children
below 18 years of age, as the case may be.
The
fact that these subsections require the court to give reasons for
refusing the application for the use of a CCTV or the
appointment
of an intermediary in the case of a child under the age of 14
years, as the case may be, does not in itself exclude
the need for
reasons in the case of a refusal in respect of a child over the age
of 14 years. The issue is one of emphasis
rather than one of
exclusion. What the subsections emphasise is that the younger the
child, the more the need exists for protection.
Selecting the age
of 14 years may perhaps be perceived to be arbitrary. So are all
choices relating to age. This, however,
does not detract from the
fact that the subsections recognise that younger children may need
the protection more than older
children. As pointed out earlier,
the protection that is given to children must be appropriate to
their age, level of maturity
and unique needs. These subsections
recognise this. They also recognise that vulnerability decreases
with age.
In
the light of the above, and flowing from sections 158(5) and
170A(7), the distinction lies in the fact that those subsections

require a presiding officer to give reasons for refusing to appoint
an intermediary or the use of CCTV, as the case may be,
where the
child is below the age of 14 years “immediately upon refusal.”
Where the child is 14 years or older, the presiding
officer need
not give reasons immediately upon refusal, but may give reasons at
a later stage or at the end of the case. This
distinction is
neither irrational nor unfair. It serves merely to remind
presiding officers of the greater vulnerability of
younger
children. It does not, however, mean that an intermediary should
not be appointed or CCTV should not be used, as the
case may be,
for children who are 14 years or older.
Sections
158(5) and 170A(7) are, therefore, not unconstitutional.
Section
164(1)
Section
164 provides:
“
(1) Any
person who
, is found not to understand the
nature and import of the oath or the affirmation, may be admitted to
give evidence in criminal
proceedings without taking the oath or
making the affirmation: Provided that such person shall, in lieu of
the oath or affirmation,
be admonished by the presiding judge or
judicial officer to speak the truth.
(2) If such
person wil
fully and falsely states
anything which, if sworn, would have amounted to the offence of
perjury or any statutory offence punishable
as perjury, he shall be
deemed to have committed that offence, and shall, upon conviction,
be liable to such punishment as is
by law provided as a punishment
for that offence.”
Section
164(1) allows a court to allow a person, who does not understand
the nature or the importance of an oath or a solemn
affirmation, to
give evidence without taking an oath or making an affirmation.
However, the proviso to the subsection requires
the presiding
officer to admonish the person to speak the truth. It is implicit,
if not explicit, in the proviso that the
person must understand
what it means to speak the truth. The High Court was concerned
about a child who is unable to distinguish
between the concepts of
truth and falsehood. If the child does not understand what it
means to speak the truth, the child
cannot be admonished to speak
the truth and is therefore an incompetent witness.
122
The child cannot testify. Such a child was the concern of the
High Court. The problem with the subsection, the court held,
is
that it does not take into account that a child who, because of his
or her age, may not be able to understand the abstract
concepts of
truth and falsehood, but may nevertheless be perfectly able to
convey what happened to him or her.
123
The
practice followed in courts is for the judicial officer to question
the child in order to determine whether the child understands
what
it means to speak the truth. As pointed out above, some of these
questions are very theoretical and seek to determine
the child’s
understanding of the abstract concepts of truth and falsehood. The
questioning may at times be very confusing
and even terrifying for
a child. The result is that the judicial officer may be left with
the impression that the child does
not understand what it means to
speak the truth and then disqualify the child from giving evidence.
Yet with skilful questioning,
that child may be able to convey in
his or her own child language, to the presiding officer that he or
she understands what
it means to speak the truth. What the section
requires is not the knowledge of abstract concepts of truth and
falsehood.
What the proviso requires is that the child will speak
the truth. As the High Court observed, the child may not know the
intellectual
concepts of truth or falsehood, but will understand
what it means to be required to relate what happened and nothing
else.
The
reason for evidence to be given under oath or affirmation or for a
person to be admonished to speak the truth is to ensure
that the
evidence given is reliable. Knowledge that a child knows and
understands what it means to tell the truth gives the
assurance
that the evidence can be relied upon. It is in fact a
pre-condition for admonishing a child to tell the truth that
the
child can comprehend what it means to tell the truth.
124
The evidence of a child who does not understand what it means to
tell the truth is not reliable. It would undermine the accused’s

right to a fair trial were such evidence to be admitted. To my
mind, it does not amount to a violation of section 28(2) to
exclude
the evidence of such a child. The risk of a conviction based on
unreliable evidence is too great to permit a child
who does not
understand what it means to speak the truth to testify. This would
indeed have serious consequences for the administration
of justice.
When
a child, in the court’s words, cannot convey the appreciation of
the abstract concepts of truth and falsehood to the
court, the
solution does not lie in allowing every child to testify in court.
The solution lies in the proper questioning
of children; in
particular, younger children. The purpose of questioning a child
is not to get the child to demonstrate knowledge
of the abstract
concepts of truth and falsehood. The purpose is to determine
whether the child understands what it means to
speak the truth.
Here the manner in which the child is questioned is crucial to the
enquiry. It is here where the role of
an intermediary becomes
vital. The intermediary will ensure that questions by the court to
the child are conveyed in a manner
that the child can comprehend
and that the answers given by the child are conveyed in a manner
that the court will understand.
As
pointed out earlier, questioning a child requires a special skill.
Not many judicial officers have this skill, although
there are some
who, over the years and because of their constant contact with
child witnesses, have developed a particular
skill in questioning
children. This illustrates the importance of using intermediaries
where young children are called upon
to testify. They have
particular skills in questioning and communicating with children.
Counsel for the Centre for Child
Law and Childline was quite
correct when, in her reply, she submitted that everything seems to
turn upon the need for intermediaries
when young children testify
in court. Properly trained intermediaries are key to ensuring the
fairness of the trial. Their
integrity and skill will be vital in
ensuring both that innocent people are not wrongly convicted and
that guilty people are
properly held to account.
The
conclusion by the High Court that the proviso to section 164(1)
violates section 28(2) of the Constitution cannot, therefore,
be
sustained.
Conclusion
on orders of invalidity
I
conclude, therefore, that properly construed, the invalidated
provisions are not inconsistent with the Constitution. It follows

that the orders of invalidity cannot be confirmed.
What
now remains to be considered is whether the declaratory, mandatory
and supervisory orders made by the High Court should
be set aside
as contended for by the Minister.
Declaratory
orders in paragraphs 8–10
In addition to orders of
invalidity, the High Court made further declaratory orders in
paragraphs 8–10 of its order.
125
These related to priority to be given in the investigation and
prosecution of criminal cases involving children,
126
the right to be assisted by an intermediary and to make use of
electronic and other devices when giving evidence,
127
and the entitlement to have trials conducted by officials who have
expertise in dealing with children.
128
In addition, it made mandatory and supervisory orders.
129
I will deal with the latter orders later.
The
Minister is also appealing against these orders. The Minister
submitted that: first, these orders dealt with matters that
were
not before the High Court; second, the orders had no direct
connection with the cases before the High Court; third, the
scope
of the orders went beyond issues that the parties had been required
to deal with by the High Court; and fourth, they
dealt with the
policy that has yet to be formulated and they were thus in breach
of the doctrine of the separation of powers.
The
legal basis for making these declaratory orders is not clear from
the judgment of the High Court. The court had already
made orders
of invalidity in relation to the invalidated provisions as required
by section 172(1)(a) of the Constitution.
A court hearing a
constitutional matter has wide powers to make an order that is
appropriate.
130
The question is whether it was appropriate for the High Court to
make the declaratory orders in paragraphs 8-10.
As
framed by the court, the question was whether the invalidated
provisions are inconsistent with section 28(2) of the Constitution.

The answer to this question turned upon the proper construction of
section 28(2) and section 170A(1). It did not require
a
declaration of rights. What the High Court was required to do was
to declare, in terms of section 172(1)(a), that the invalidated

provisions are inconsistent with the Constitution, as it did in the
orders of invalidity. Once this was done, there was no
need for
any further declaratory order. This was therefore not a case in
which the court should have exercised its discretion
to make a
declarator over and above the orders of invalidity.
In
these circumstances, paragraphs 8, 9 and 10 of the High Court order
cannot stand.
Paragraph
11 of the order
Paragraph
11 of the order reads: “It is noted that the criminal justice
system faces critical systemic challenges.” This
is not an
order. It therefore cannot stand.
Mandatory
orders in Paragraph 12
The
mandatory orders ordered the Minister to refer the matter dealt
with in the declaratory orders to the Inter-Sectoral Committee
with
“instructions” to that committee to address these matters as
part of the National Policy Framework (NPF).
131
In addition, it ordered the National Commissioner of South African
Police Services (the National Commissioner of Police) and
the DPP
to issue directions addressing matters dealt with in the
declaratory orders.
132
The Minister and these state officials were ordered to address
these matters with the co-operation of non-governmental

organisations that were willing and able to assist. The
supervisory order called upon the Minister, the DPP and the
National
Commissioner of Police to report to court within a year,
the progress made in addressing the mandamus dealt with in the
mandatory
and supervisory order.
133
As
is apparent from the mandatory orders, they were made in order to
give effect to the declaratory orders. If the declaratory
orders
cannot stand, the mandatory orders cannot stand either. However,
in making the mandatory orders, the High Court relied
upon the
existence of the structure to develop the NPF dealing with, among
other matters, services for victims of sexual offences
under
section 62 of the Sexual Offences Amendment Act. It held that—
“
the existence of the
structure to develop this policy framework does enable the court,
however, to go further than to issue a
mere declaratory order of
constitutional invalidity, but also to consider a mandamus”.
134
It
is not clear from the judgment of the High Court why this is so.
The Minister contended that these orders are in breach
of the
principle of the separation of powers.
The importance of the
principle of the separation of powers in our constitutional
democracy cannot be gainsaid. It is required
by the very structure
of our Constitution. While there are no bright lines that separate
the role of the courts from those
of other branches of government,
“there are certain matters that are pre-eminently within the
domain of one or other of the
arms of government and not the
others. All arms of government should be sensitive to and respect
this separation.”
135
(Footnote omitted.) Courts too must observe the constitutional
limits of their authority. Thus, in
Doctors for Life
we
emphasised that:
“
The
constitutional principle of separation of powers requires that other
branches of government refrain from interfering in parliamentary

proceedings. This principle is not simply an abstract notion; it is
reflected in the very structure of our government. The
structure of
the provisions entrusting and separating powers between the
legislative, executive and judicial branches reflects
the concept of
separation of powers. The principle ‘has important consequences
for the way in which and the institutions by
which power can be
exercised’.
Courts
must be conscious of the vital limits on judicial authority and the
Constitution’s design to leave certain matters to
other branches
of government. They too must observe the constitutional limits of
their authority. This means that the Judiciary
should not interfere
in the processes of other branches of government unless to do so is
mandated by the Constitution.”
136
It
is unquestionably the constitutional province of the executive to
develop and implement policy.
137
Consistently with this, section 62 of the Sexual Offences
Amendment Act requires the Minister to adopt the NPF, among other

things, “to guide the implementation, enforcement and
administration of the Act.”
138
The NPF must be adopted and tabled in Parliament within a year of
the promulgation of the Act. The Act also establishes the

Inter-Sectoral Committee for the Management of Sexual Offences
Matters (the Committee). The DPP and the National Commissioner
of
Police are empowered to issue national instructions dealing with,
among other things, the manner in which sexual offences
must be
investigated and prosecuted and the training of those involved in
the investigation and prosecution of these offenders.
Under
our constitutional democracy, courts have no power to supervise or
interfere with the exercise by the executive or legislature
of its
functions unless the circumstances amount to a clear disregard by
the executive of the powers and duties conferred upon
it by the
Constitution. Where there is such a disregard, courts are not only
entitled but obliged to intervene. But judicial
review under our
constitutional democracy does not give courts the power to exercise
executive or legislative functions. It
permits courts to call upon
the executive and legislature to observe the limits of their powers
but does not permit courts
to exercise those powers themselves.
Courts therefore have the duty to patrol the constitutional borders
defined by the Constitution.
They cannot, therefore, cross those
borders.
Here
the High Court ordered the Minister to refer matters dealt with in
the declaratory orders to the Committee and to instruct
the
Committee to address the systematic shortcomings as part of the
NPF. In effect, the order dictates to the Minister, whose
duty it
is to develop the policy, what shall be included in the policy.
Not only that, the Minister is ordered to instruct
the Committee on
what to do. The court is, therefore, taking part in the
formulation and adoption of the policy. In my view,
the order
interferes with the executive function. Indeed, it amounts to an
exercise of an executive function. This in my
view constitutes an
impermissible intrusion into the domain of the executive.
Mandatory
order in paragraph 13
The
same is true of paragraph 13 of the order. It ordered the National
Commissioner of Police and the DPP “to consider the
matters
addressed in [the declaratory orders] as part of their directives”.
The Sexual Offences Amendment Act now empowers
these officials of
the executive to issue directions or policy dealing with the
functioning of their respective departments.
The effect of the
order is to tell them what should form part of these directives or
policy. It is not ordinarily the function
of the court to tell the
executive how to formulate policy. To do so is to interfere in the
functioning of the executive.
The function of the courts is to
ensure that the executive observes the limits on the exercise of
its power. Here too the
High Court impermissibly intruded into the
domain of the executive.
The
High Court was no doubt faced with a lamentable situation
concerning child witnesses in criminal proceedings involving sexual

offences. It had serious concerns about the manner in which
justice was being administered in relation to child victims of

sexual offences. As will appear below, these concerns had a strong
factual foundation. The High Court was understandably
and
commendably motivated by the desire to perform its duty to uphold
the Constitution and to implement the provisions of section
28(2)
by providing appropriate remedies. The manner in which the court
set about providing these remedies, however, was not
appropriate.
The remedy lay, not in attempting to recast the statute book, but
in the proper interpretation and implementation
of the invalidated
provisions. There was no legal basis for the orders made by the
High Court in paragraphs 12 and 13 of its
order.
Supervisory
order in paragraph 14
The
supervisory order in paragraph 14 of the order of the High Court
was made in order to give effect to the declaratory and
mandatory
orders. This is a matter to which I shall return in a moment.
For
all these reasons, the High Court should not have made these orders
in paragraphs 8, 9, 10, 11, 12 and 13 of its order.
These orders
must accordingly be set aside.
That,
however, is not the end of the matter. As pointed out above, the
record contains some disturbing information concerning
the
availability of intermediaries, the adequacy of their training and
the lack of court facilities for child complainants
in sexual
offence cases. Indeed, grave concerns were expressed in the course
of the hearing in this Court over this situation.
This has serious
consequences for the protection that both section 28(2) of the
Constitution and the child protection provisions
of the CPA afford
to child complainants, and for the administration of justice.
In
what follows, I set out these concerns, consider whether this Court
as the upper guardian of all minors should investigate
these
concerns, and determine the appropriate order.
Concerns
about the availability of intermediaries
Our attention was drawn to
cases where courts have ordered the appointment of intermediaries
but because none were available,
courts have had to postpone cases
to the detriment of child complainants.
139
One case, for example, was postponed on 22 August 2007 for the
appointment of an intermediary. One year later, an intermediary

had not yet been appointed and the case had to be postponed
further.
140
The situation poses a dilemma for concerned judicial officers.
The dilemma they face has recently been described as follows
by a
Brits Regional Court Magistrate:
“
The dilemma is that none of
the role players involved are certain as to who is responsible for
ensuring that an intermediary is
available on the trial date to
assist these children. It is paramount that clarity be obtained in
this regard. The delay in
the demarcation process further
contributes to the current dilemma since intermediaries from outside
the Brits region are not
willing to assist at this court as they
complain that they are not being paid. The current situation at the
local office of
the Department of Social Development is that there
is no social worker available to act as an intermediary due to a
shortage
of social workers.”
141
This
dilemma has taxed judicial patience to its limits. It has forced
concerned regional magistrates to resort to orders in
terms of
section 342A of the CPA.
142
This section empowers a court to investigate any delay in the
completion of a trial if the delay is unreasonable and is likely
to
cause substantial prejudice to the accused, the state or a witness.
If the court finds that the delay is unreasonable,
it may make any
order “as it deems fit in order to eliminate the delay”. In
Seboko
, the Regional Court Magistrate issued an order in the
following terms:
“
[T]he matter be referred to
[the] relevant authorities to make submission or come and testify
before the court on the 21
st
October 2008 with regards to
the following:
Who is responsible to secure
the attendance of a suitable intermediary on the trial date.
What steps are going to be
taken to make sure that an intermediary will be available to assist
the children in the abovementioned
cases.
The case in question has been
remanded until 21 OCTOBER 2008 for the relevant authorities to reply
in writing to the court or
to give oral evidence before this court
i.t.o. section 342A of [the Criminal Procedure Act].”
143
The
factual material submitted by the DPP and the amici reveals the
following further disturbing facts.
Availability
of sexual offences courts
The
DPP in Pretoria indicated that in February 2003, 29 specialist
sexual offences courts were functioning. By February 2007
the
statistics indicated that there were about 75 of these courts, but
only 52 were still sitting and dealing only with sexual
offence
cases. This correlates with the findings of Reyneke and Kruger
that 54 courts were operating in 2005.
144
This finding indicates that there has been a decline in the number
of functioning sexual offences courts since 2005. The
DPP has also
deployed 68 court preparation officers to help prepare child
witnesses for the procedures and rigours of testifying
in court.
While 71 more officers are to be appointed on a needs analysis,
there is no indication of whether this supply is
meeting the demand
of the criminal justice system.
Facilities
for the use of intermediaries
The
DPP in Pretoria also provided us with the results of several
surveys undertaken to comply with the High Court’s investigation

into the constitutionality of the specific provisions of the CPA.
These findings are the most disturbing. Only 14% of the

approximately 450 Regional Courts nationwide are equipped with the
necessary facilities to permit the use of intermediaries.
Even for
those courts with these facilities, a high percentage have
continuing problems with broken or malfunctioning equipment.
For
example, the respondents from Lehurutshe, in the North-West
province indicated that the equipment had
never
worked in
their courts. A very low percentage of courts were equipped with
one-way mirrors, and only slightly higher percentages
of courts
were reported to have separate waiting rooms in each province.
Training
of intermediaries
Almost
half of the officials who responded to the DPP’s surveys
indicated their strong concerns over the current intermediaries.

The issues they raised included language barriers that led the
intermediary to fail to adequately convey what the child was

stating; intermediaries’ unfamiliarity with court procedures,
leading them to act merely as interpreters or fail to perform
their
function of making the child more comfortable with the form and
tone of the questioning; the difficulty expressed by
prosecutors in
obtaining intermediaries even on request; and the reliance by
courts or prosecutors on interpreters over intermediaries
merely
because it involved a simpler process, despite almost 50% of the
respondents indicating that interpreters had not been
adequately
sensitised to the needs of child witnesses.
Training
of prosecutors
Finally,
the facts suggest that only a very small percentage of prosecutors
had sufficient training in dealing with child witnesses,
with only
450 prosecutors by 2007 having received specialist training in
these areas, a very low proportion of all working
prosecutors. The
DPP itself conceded that high staff turnover meant that it was
difficult to retain adequately trained staff
to deal with these
issues. Prosecutors also indicated that they felt magistrates
required additional training to deal with
cases involving child
complainants.
This
is a disturbing state of affairs. It is utterly inconsistent with
the statutory promise of an intermediary in section
170A(1).
Indeed, it is inconsistent with the constitutional promise that the
child’s best interests shall be of paramount
importance in all
matters concerning the child. It reduces court orders giving
effect to these promises to meaningless words.
Indeed, if a court
orders the appointment of an intermediary and the order cannot be
carried out, the order will be ineffective.
But yet, the
Constitution requires the organs of state to assist and protect
courts to ensure the effectiveness of courts.
145
And further declares that an order of court “binds all persons
to whom and organs of state to which it applies.”
146
Orders to appoint an intermediary plainly apply to the state.
Should
the Court investigate these matters?
What
then should this Court, whose duty it is to uphold the
Constitution, do in the light of this disturbing information? In
Matatiele 1
, we had occasion to consider whether it was
appropriate for this Court to investigate whether the procedures
set out for the
enactment of a constitutional amendment were
complied with. We held that “where, on the papers before it,
there is doubt
as to whether a particular law or conduct is
consistent with the Constitution, this Court may be obliged to
investigate the
matter.”
147
And we added that “[t]his would be particularly so where . . .
an important constitutional issue is involved.”
148
O’Regan J, concurring, emphasised that “[i]t is this Court’s
constitutional task to ensure that the Constitution is
upheld.”
149
We concluded that it was in the interests of justice to
investigate the issue.
150
The
constitutional issues at stake here concern children who are
complainants of sexual offences. They are some of the most

vulnerable members of society. They are not parties to the
proceedings, but they have constitutional rights: the right to
have
their best interests to be considered is of paramount importance in
matters concerning them. Their status as non-parties
severely
limits, if not eliminates, their ability to vindicate their rights
in those proceedings where they are called upon
to testify. This
makes them doubly vulnerable. They have to depend, for the
vindication of their rights, on others including
courts before whom
they testify. The constitutional issues at stake here are
therefore important, and affect the administration
of justice.
Their resolution may not have an impact on the child who testified
without the aid of an intermediary in the Phaswane
matter, but it
will have an impact on many others whose cases are pending in
courts and those who will fall complainants of
sexual abuse in the
future.
The
record suggests a disturbing inconsistency between the promises
that the laws make and the implementation of the laws.
Compliance
with the Constitution requires not only that laws be enacted to
give effect to the rights in the Constitution, but
also requires
that these laws be implemented. Failure to implement laws that
protect constitutional rights is a violation
of the Constitution.
Here
Parliament has made laws to protect child complainants from undue
mental stress or suffering that may result from testifying
in
court. To this end, sections 170A(1) and 170A(3) promise child
complainants protective measures such as the appointment
of an
intermediary and the creation of child-friendly courts. But the
subsections also contemplate that the state will commit
the
necessary resources in order to achieve the objects of the
subsections consistently with section 28(2) of the Constitution
and
give effect to sections 170A(1) and 170A(3). The non-availability
of these measures contemplated in the CPA is not only
a breach of
the relevant provisions of the CPA, but it is indeed a breach of
the Constitution.
As
pointed out earlier, under sections 38 and 172(1)(b) of the
Constitution, this Court has wide powers to make an order that
is
just and equitable and afford appropriate relief. As the facts set
out above amply demonstrate, the rights of child complainants
in
sexual offence cases are threatened by the non-availability of
intermediaries and related child protection facilities.
During
argument, counsel for the Minister was asked why this Court should
not make a supervisory order to address these concerns.
He
submitted that Parliament has created a mechanism for addressing
this problem and further submitted that a structural interdict

would do the same. Counsel had in mind the provisions of Part 3 of
the Sexual Offences Amendment Act. This Part makes provision
for
the adoption of the NPF, among other things, “to guide the
implementation, enforcement and administration of this Act”.
151
This policy had to be adopted within a year after the coming into
operation of this statute, namely by 16 December 2008.
Having
regard to the provisions of Part 3, it is not clear whether the
policy framework will address the concerns raised by
these cases.
It will probably not as it is concerned with policy matters. In
addition, we were not told whether the policy
has been formulated,
and if not, at what stage is the drafting process. In any event,
whatever the mandate of the Committee
might be, the supervisory
order is concerned with the implementation of existing legislative
provisions for the protection
of children.
The
concerns raised in these cases require urgent attention.
Addressing them cannot be deferred. Each child complainant who
is
denied the assistance of an intermediary while the policy framework
is being developed has his or her constitutional rights
violated.
In these exceptional circumstances, I consider it appropriate to
call for information as a first step in this supervisory
process.
I
consider that the Director-General for the Department of Justice
and Constitutional Development should be requested to furnish
the
following information:
A list of Regional Courts
indicating how many intermediaries each Regional Court requires to
meet its needs and how many intermediaries
each Regional Court
has.
If the Regional Courts do not
have the number of intermediaries required to meet their needs,
the steps which are being taken
to ensure that each Regional Court
has the number of intermediaries necessary to meet its needs.
A list of Regional Courts
indicating which of them has the following facilities contemplated
in section 170A(3) of the CPA:
(i) separate rooms from which
children may testify;
(ii) closed circuit television
facilities; and
(iii) one-way mirrors.
To the extent that there are
Regional Courts that do not have all the facilities in (c) above,
the steps which are being taken
to provide these facilities to
these Regional Courts.
In
these circumstances, the supervisory order in paragraph 14 of the
order of the High Court should be set aside. So too should

paragraph 15 of the order be set aside, which gives the parties and
amici leave to approach the High Court, with leave to raise
further
issues with the High Court should this be necessary. I believe
that the order made in this Court is an appropriate
remedy to
address the threat to the rights of child complainants in sexual
offence cases.
Conclusion
In
the result, I conclude that—
the orders of invalidity made
by the High Court in Pretoria should not be confirmed;
the further declaratory,
mandatory and supervisory orders made by the High Court in
Pretoria should be set aside; and
an order should be issued
calling upon the Director-General for the Department of Justice
and Constitutional Development to
provide the information set out
in paragraph 206 above. A period of 90 days should be sufficient
to enable the Director-General
to assemble and provide this
information. The National Director of Public Prosecutions and the
amici should be afforded
the opportunity to comment on the
information.
Order
In
the event, the following order is made:
The failure by the Minister
for Justice and Constitutional Development to comply with the
rules for the filing of the notice
of appeal and the application
for leave to appeal is condoned.
The appeal by the Minister
for Justice and Constitutional Development is upheld.
The orders of invalidity made
by the North Gauteng High Court, Pretoria in respect of
sections
153(3)
and (5),
158
(5),
164
(1) and
170A
(1) and (7) of the
Criminal
Procedure Act 51 of 1977
are not confirmed.
The further orders that were
made by the North Gauteng High Court, Pretoria in paragraphs 8–15
of its order are set aside.
The Director-General for the
Department of Justice and Constitutional Development is required
to submit a report to this Court
by no later than 1 July 2009
setting out the following information:
A list of Regional
Courts indicating how many intermediaries each Regional Court
requires to meet its needs and
how many intermediaries each
Regional Court has.
If the Regional Courts
do not have the number of intermediaries required to meet
their needs, the steps which are
being taken to ensure that
each Regional Court has the number of intermediaries
necessary to meet its needs.
A list of Regional
Courts indicating which of them has the following facilities
contemplated in
section 170A(3)
of the CPA:
separate rooms from which
children may testify;
closed circuit television
facilities; and
one-way mirrors.
To the extent that there
are Regional Courts that do not have all the facilities in
subparagraph 3 of this order,
the steps which are being taken
to provide these facilities to these Regional Courts.
The report contemplated in
paragraph (e) of this order must be served on each of the amici
and the National Director of Public
Prosecutions, who, if so
advised, may comment on the report by no later than 3 August 2009.
Further directions dealing
with, among other matters, argument or supervision of the
execution of paragraph (e) of this order,
as circumstances may
require, may be issued.
Langa
CJ, Moseneke DCJ, Mokgoro J, O’Regan J, Sachs J, Van der
Westhuizen J and Yacoob J concur in the judgment of Ngcobo
J.
SKWEYIYA
J:
Introduction
I
have read the meticulous judgment of my colleague, Ngcobo J. I
agree that this Court should not confirm the declarations
of
invalidity made by the High Court in Pretoria and I concur in his
order. This judgment is written because, while I concur
in his
reasoning and the order he proposes in relation to section 170A(1)
of the Criminal Procedure Act 51 of 1977 (CPA), I
differ from him
in relation to the reasons he advances for not confirming the
declarations of invalidity in respect of sections
153(3) and (5),
158(5), 164(1), and 170A(7) of the CPA (the improperly raised
provisions).
1
In
my view, a broader range of factors should inform this Court’s
consideration of the interests of justice in confirmation

proceedings when the impugned statutory provisions were never
properly before the court below. These additional factors reveal

that, in this case, the interests of justice would be better served
by refusing to confirm the declarations of constitutional

invalidity without addressing the constitutionality of the
improperly raised provisions.
This
Court’s discretion in confirmation proceedings
Under
section 172(2)(a) of the Constitution, any declaration of
constitutional invalidity must be confirmed by this Court to
have
any force. It seems to me that section 172(2)(a), properly
construed, does not compel this Court to entertain an application

for confirmation in relation to provisions entirely irrelevant to
the facts of the underlying case.
In
Ordinary Court Martial
,
2
Langa CJ
noted that—
“
section 172(2) does not
require this Court in all circumstances to determine matters brought
to it under that subsection. At
least where the provision declared
invalid by the High Court has subsequently been repealed by an Act
of Parliament, the Court
has a discretion to decide whether or not
it should deal with the matter.
In this regard,
the Court should consider whether any order it may make will have
any practical effect either on the parties or
on others.
”
In
my view, therefore, once a declaration of constitutional invalidity
is made by a High Court and referred to this Court for

confirmation, this Court can either pronounce upon the
constitutionality of impugned provisions, or refuse to confirm the
order without reaching the merits of the provisions. This Court
has a discretion which it should exercise judiciously.
3
To find otherwise would effectively be to cede control over this
aspect of our jurisdiction to lower courts.
In
exercising this discretion, this Court must enquire into the
interests of justice. Typically, the interests of justice require

that we consider the validity of provisions declared
unconstitutional by a lower court in order to avoid uncertainty as

to their ongoing validity. When a dispute has become moot before
reaching this Court, this concern is diminished. This is the

reason that
Ordinary Court Martial
identifies mootness as a
situation where this Court may not be required to determine the
validity of provisions declared unconstitutional
by a lower court.
4
Ordinary
Court Martial
suggests that there may well be other situations
where this Court should exercise its discretion not to consider
constitutional
issues raised in confirmation proceedings.
5
We have never squarely confronted a situation in which the
interests of justice caution us
not
to engage in a
substantive evaluation of the provisions in question on the basis
that the constitutional issues were improperly
raised in the court
below. As the analysis below demonstrates, this case presents such
a situation.
What
do the interests of justice require in this case?
Three
factors inform Ngcobo J’s position that the interests of justice
require this Court to consider the constitutional validity
of the
invalidated provisions of the CPA.
6
One of these factors – in his view the most significant of the
three – is that if we do not consider their validity, uncertainty

as to their constitutionality may linger. This concern is
overstated and exaggerated. Although this Court acted in
Zantsi
to prevent uncertainty where the constitutional issues raised
were irrelevant, the potential uncertainty in that case related to

the jurisdiction of provincial and local divisions of the Supreme
Court to enquire into the validity of Acts of Parliament
passed
prior to the enactment of the Constitution.
7
The uncertainty avoided was more substantial and potentially
far-reaching than the uncertainty that could arise in this case.
Furthermore,
the language of sections 172(2)(a) and 167(5) of the Constitution
does not indicate that confirmation proceedings
are compulsory in
all circumstances. It seems to me that if these sections were
intended to impose on this Court an obligation
to hear confirmation
proceedings and prevent uncertainty in all instances, the language
could easily have reflected this intention.
Those sections also
make clear that any declaration of invalidity will have
no force
unless confirmed by this Court. Legally, therefore, there is no
uncertainty as to the effect of a declaration of invalidity
that
has not been confirmed by this Court: it has no force.
Moreover,
any concern about the manner in which these provisions will be
applied in the future if the constitutionality of the
provisions is
not addressed by this Court can be overcome in ways that do not
entail the constitutional review of provisions
divorced from
factual context. In this case, to prfevent any doubts as to the
continuing validity of the provisions, this
Court’s judgment
could be sent to magistrates and judges so as to emphasise the
continuing effect of the statutory provisions.
It seems to me that
such an approach addresses concerns about uncertainty without
compromising the crucial principles raised
in this judgment.
In
any event, Ngcobo J’s factors are not exhaustive of the relevant
factors in the interests of justice enquiry where constitutional

issues were improperly raised by the lower court. It is to these
additional factors that I now turn.
Constraints
on judicial authority: the rule of law and
the
separation of powers
In
my view, the first additional factor that should inform our
interests of justice enquiry in this case concerns the rule of
law
and the separation of powers. Although courts are independent and
subject only to the Constitution and the law,
8
it is the judiciary’s continued respect for these two principles
that preserves its integrity and independence. As Cameron
notes:
“
The institutional and
substantive independence of the judiciary is of great importance.
But
it is a value only in its
interrelation with other values: judicial independence is guarded
because
it is meant to serve the public interest through the
separation of powers and fidelity to the rule of law
.”
9
(My emphasis.)
In
the tripartite division of public power, courts are entrusted with
a specific and limited function. The judiciary is the
ultimate
gu
ardian of the Constitution, bearing
“not only . . . the right to intervene in order to prevent [a]
violation of the Constitution,
but also . . . the duty to do so.”
10
The discharge of this solemn duty necessarily entails the exercise
of broad powers. However, in
Doctors
for Life
this Court recognized:
“
Courts must be conscious of
the vital limits on judicial authority and the Constitution’s
design to leave certain matters to
other branches of government.
They too must observe the constitutional limits of their authority.
This means that the judiciary
should not interfere in the processes
of other branches of government unless to do so is mandated by the
Constitution.”
11
The
consideration of constitutional issues
in vacuo
is typically
entrusted to the legislature. This is so both because of the
legislature’s democratic legitimacy and also because
of the
particular competence of that branch of government in addressing
polycentric issues.
It
follows, then, that the core responsibility of the judiciary is to
resolve live disputes on the basis of evidence presented
by
opposing parties. Indeed, this Court in
Zantsi
, relying on
the decision of the Supreme Court of Canada in
Borowski v
Canada
, set out the rationale for this as follows:
“
First, in an adversary
system, issues are best decided in the context of a live
controversy. The second consideration is based
on concern for
judicial economy and the last is that it is generally undesirable
and possibly an intrusion into the role of the
legislature for a
court to pronounce judgments on constitutional issues in the absence
of a dispute affecting the rights of the
parties to the
litigation.”
12
The
Constitution does, however, make specific provision for courts to
engage in abstract review of constitutional issues in
at least two
instances: the review of bills by this Court in rare
circumstances,
13
and facial constitutional challenges to legislation brought in a
competent court. Indeed, challenges of the nature pursued
in this
matter could have been brought under the broad standing provisions
of section 38 of the Constitution.
14
Under this section, courts are empowered to grant appropriate
relief when rights in the Bill of Rights have been infringed
or
threatened. In
Fose
, Ackermann J addressed the breadth of
courts’ jurisdiction under this section as follows:
“
Appropriate relief will in
essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances
of each particular
case the relief may be a declaration of rights, an interdict, a
mandamus or such other relief as may be required
to ensure that the
rights enshrined in the Constitution are protected and enforced. If
it is necessary to do so, the courts may
even have to fashion new
remedies to secure the protection and enforcement of these all
important rights.”
15
(Footnote omitted.)
The
critical point is that our courts will consider facial challenges
to legislation in a broad range of circumstances. This
Court
should thus not assume that there is no avenue open to parties
asserting the rights of children in our legal system.
Importantly,
when a court engages in abstract constitutional review under
section 38 of the Constitution, as when this Court
engages in the
review of bills, the authority of the judiciary is, in the words of
this Court, “mandated by the Constitution.”
16
In
our constitutional order it is appropriate for litigants to launch
facial challenges to the constitutionality of legislation,
and for
courts to hear such challenges where it is in the interests of
justice. It is quite another thing for a judge, of
his own accord,
to raise questions about the constitutionality of provisions which
do not arise on the facts of the case before
him.
Moreover,
in the abstract review procedures authorised by the Constitution,
the abstract challenge is the very dispute in the
case.
Consequently, the Court in those instances does not, while
conducting such abstract review, neglect its core responsibility
to
resolve disputes before it. By way of example, when the President
refers a bill to this Court for a decision on its constitutionality

– a classic case of constitutionally contemplated abstract review
– the constitutionality of the bill is the only live
issue before
the Court.
Conversely,
in a matter like the one before us, the live dispute – the
criminal cases of Messrs Phaswane and Mokoena – was
placed on
hold while largely irrelevant constitutional issues took centre
stage. Consequently, the core responsibility of
the lower court to
resolve live disputes was neglected – not only to the detriment
of the administration of justice but also
arguably to the detriment
of the two accused and the complainants in those cases, something
which I address in greater detail
below.
17
The
separation of powers concerns extend further. Five of the six
sections declared unconstitutional by the High Court, namely

sections 153(3), 158(5), 164(1), 170A(1) and (7), were in bill form
at the time the two criminal trials commenced. This much
was
acknowledged by the High Court.
18
However, the appointment of intermediaries forms the core of
section 170A(1) and was (i) implicated on the facts of the Phaswane

matter; (ii) on the statute books at the time of the offence; and
(iii) not altered by the proposed amendment.
19
It would therefore be formalistic to hold that the provision was
improperly raised.
For
these reasons, the concerns outlined in this judgment do not apply
to section 170A(1) to the same extent as they do in respect
of the
improperly raised provisions. Consequently, I am in agreement with
Ngcobo J that the interests of justice require that
we evaluate the
constitutionality of this provision. Furthermore, because Ngcobo
J’s analysis is limited to the unamended
core of section 170A(1),
and because I am persuaded by his evaluation of that section, I
concur in his conclusion that section
170A(1) is not
unconstitutional.
The
consideration by the High Court of the other four provisions that
were in bill form is far more troubling. Only this Court
may
enquire into the constitutionality of a bill.
20
This enquiry is limited in two respects. First, the bill must be
referred by the President pursuant to section 79(4) of the

Constitution, or by a Premier pursuant to section 121 of the
Constitution, to this Court for consideration. Second, as this

Court stated in the
Liquor Bill
case in relation to a
request pursuant to section 79(4), it can only consider
reservations that the President has expressed.
21
Moreover, as was made clear by this Court in
UDM
:
“
This power of abstract
judicial review is exceptional and something quite distinct from the
power, having found an enactment inconsistent
with the Constitution,
to strike it down and to grant appropriate consequential relief
relating to its effect”.
22
This
Court concluded that “on a proper reading of the Constitution,
no
court
may, save as provided in [sections] 79 and 121, consider
the constitutionality of a Bill before the National Assembly or a
provincial
legislature.”
23
(My emphasis.)
The
difficulties inherent in resolving irrelevant constitutional issues
The
second additional factor that should inform our enquiry emerges
from the manner in which this matter has come before us.
It was
inappropriate for the High Court to raise the constitutionality of
sections that had no bearing on the resolution of
the cases before
it. The accused had no interest in defending the constitutionality
of certain of the invalidated provisions.
Their disinterest is
confirmed by the fact that they do not appeal against several of
the findings of constitutional invalidity.
24
Although
several amici representing the rights of children have lodged
submissions with this Court, such submissions cannot
cure the
problems that arise when the parties themselves are disinterested
in the resolution of the matter. The rights of
children are not
the only rights implicated in the improperly raised provisions; the
rights of accused persons are also at
stake. The Court, in
adjudicating provisions which seek to balance the competing needs
of accused persons and complainants,
does not have the benefit of
argument from the accused parties before it.
The
evidence presented by the amici, although troubling, is largely
irrelevant to the underlying criminal cases. Indeed, during
the
hearing, counsel for the third and seventh amici acknowledged that
her clients “did not have the luxury of evidence in
this case”
and were essentially “piggy-backing” on the initiative of a
high court judge. Not having the “luxury of
evidence” is no
mere technicality. Without casting doubt on the validity of the
evidence before us, I am uncomfortable evaluating
the improperly
raised provisions on the basis of evidence submitted by amici, not
as a supplement to the factual evidence before
us but as a
substitute for it.
Institutional
implications
When
conducting the interests of justice enquiry in this case, this
Court should reflect upon the effects that its judgment
may have on
the manner in which cases are litigated and resolved in lower
courts. This is the third additional factor which,
in my view,
must inform this enquiry. Our willingness to consider improperly
raised constitutional matters may trigger unfortunate
and
unintended consequences.
Foremost
among these potential consequences is that judges may be encouraged
to raise irrelevant constitutional issues, no matter
how wide the
gulf between the constitutional issues and the facts before the
court, confident that almost any declaration of
invalidity is
entitled to constitutional assessment by this Court. This concern
extends to the conduct of litigants and lawyers,
who may burden the
courts with constitutional issues not pertinent to their cases.
The
consideration of irrelevant constitutional issues threatens the
right of parties to a judicial process limited by a threshold
of
relevance.
25
This right is vital in respect of accused persons, and is one
protected by section 35(3)(d) of the Constitution.
26
In the present matter, the High Court put the trials of Messrs
Phaswane and Mokoena on hold while it called for submissions
from
amici on provisions largely irrelevant to their criminal trials.
Without deciding the point, delays of this kind may
infringe
section 35(3)(d) of the Constitution.
Moreover,
the right to a judicial process constrained by a threshold of
relevance, at least in my view, applies equally to non-party

participants such as victims of crime. Victims should not be
subjected to additional and extended trauma occasioned by improper

delays in the criminal justice system. In fact, the matter before
us illustrates the harms that may befall victims when cases
are
delayed by the consideration of irrelevant issues.
The
complainant in the Mokoena case testified in the regional court as
long ago as 19 April 2006. On 7 July 2006 the accused
was
convicted by the trial magistrate. Because of the seriousness of
the offence, the conviction then fell to be confirmed
in the High
Court in terms of section 52 of the Criminal Law Amendment Act.
27
In August 2007, Mr Mokoena’s case was consolidated by the High
Court with that of Mr Phaswane for consideration of the
constitutional issues identified by the High Court. The delay
occasioned by the consideration of the irrelevant constitutional

issues is clear and was acknowledged by the High Court in its
judgment of 24 October 2008, confirming the conviction of Mr

Mokoena:
“
When
the court
raised
the constitutional issues set out above, the process of obtaining
submissions, hearing argument, preparing judgment and
referring the
same to the Honourable Constitutional Court for confirmation
caused
further delays
.” (My emphasis.)
28
Later
in the judgment, the High Court states: “It is clearly in the
best interests of the victim that her moment of closure
is not
delayed any longer than is absolutely necessary.”
29
However, the delay caused by taking submissions and hearing
argument on irrelevant constitutional issues was wholly unnecessary

in the first place.
The
interests of the complainant in the Phaswane case have been equally
jeopardised. In its judgment of 24 October 2008, the
High Court
said:
“
The court sought, with the
consent of the State and the defence, to ameliorate the negative
effect of these further delays by
releasing [Mr Mokoena] and Mr
Phaswane on warning… While the accused duly attended subsequent
trial dates, Mr Phaswane left
the country for his native
Mozambique…”
30
Mr
Phaswane appears to have absconded. Any closure that the
complainant in that case may have gained from his conviction has

been lost. The delay occasioned by the suspension of the criminal
proceedings undoubtedly aggravates the stress already suffered
by
the very complainant the High Court wished to protect. Even if Mr
Phaswane returns, the complainant may have to testify
again in
order for the accused to be sentenced. The Constitution affords
paramount importance to the best interests of the
child.
31
It is apparent that the High Court’s postponement of the matter
pending decision on the constitutionality of the provisions
was
ultimately
not
in the best interests of the two
complainants.
This
Court has specifically encouraged judges to raise constitutional
issues of their own accord,
32
but has never declared open season for judges to address any and
all constitutional matters, however irrelevant to the facts
of the
case. When, in confirmation proceedings, we are faced with a lower
court judgment that issues declarations of invalidity
in respect of
irrelevant statutory provisions, this Court is naturally inclined
to express its displeasure.
This
Court has reason to doubt the efficacy of relying on criticism
alone to discourage improper actions. This Court recently

described the routine violation of certain filing deadlines as a
“growing trend”.
33
This practice has developed, at least in part, because of our
willingness at the outset of our constitutional democracy to

condone late filing in the hope that harsh language would shame
litigants into future compliance. This Court has now recognised

that harsh language on its own is not enough.
34
The impact of our judgments lies not in the sharpness of our
critical dicta, but in the orders we issue or decline to issue,
and
in the arguments we consider or decline to consider.
Ngcobo
J criticises the High Court’s inappropriate diversion into the
constitutionality of irrelevant CPA provisions.
35
This is unlikely to act as a corrective. This Court, in my view,
sends an inconsistent message by condemning the raising
of
irrelevant constitutional issues while nevertheless proceeding to
evaluate the merits of the constitutional issues as though
they
were relevant and properly raised.
Conclusion
In
my view, the interests of justice are better served by not
confirming the declarations of constitutional invalidity of the

improperly raised provisions on the basis that they were not
relevant to the proceedings before the court below.
However,
the amici’s submissions have brought to our attention serious
problems in the implementation of the protective measures
of the
CPA. These are distinct concerns which can be addressed without an
evaluation of the improperly raised provisions.
In consideration
of our role as the upper guardian of children and for the reasons
advanced by Ngcobo J, I agree that it is
proper to call for reports
regarding the availability of intermediaries and the provision of
facilities contemplated in section
170A(3) of the CPA.
I
concur in the order made by Ngcobo J for the reasons given in this
judgment.
For
the Applicant:
Advocate
HM Meintjies SC.
For
the First Respondent:
Advocate
V Soni SC and Advocate A Platt instructed by the State Attorney.
For
the Second and Third Respondents:
Advocate
PPJ de Jager SC and Mr Pieter Van R Coetzee instructed by the
Legal
Aid Board.
For
the First and Second Amici Curiae:
Advocate
AM Skelton instructed by the Centre for Child Law.
For
the Third, Fourth, Fifth and Seventh Amici Curiae:
Advocate
K Pillay and Advocate E Nel instructed by the Legal Resources
Centre.
For
the Sixth Amicus Curiae:
Advocate
K Pillay and Advocate M Ioannou instructed by the Women’s Legal
Centre.
1
In 1991, the Criminal Law Amendment Act 135 of 1991 amended the
Criminal Procedure Act 51 of 1977
by introducing
section 170A
which
allows children to testify through intermediaries.
Section 170A
commenced on 30 July 1993.
2
Section 28(2)
provides:
“
A
child’s best interests are of paramount importance in every matter
concerning the child.”
3
Act 32 of
2007.
4
Act 51
of 1977.
5
See [134] below.
6
See [152] below.
7
See [163] below.
8
See [86] below.
9
See [153] below.
10
S v Mokoena
[2008] ZAGPHC 148
;
2008 (5) SA 578
(T).
11
Id at para 185.
12
Act 105 of 1997. Section 52(1) provides:
“
If
a regional court, following on—
(a) a
plea of guilty; or
(b) a
plea of not guilty,
has
convicted an accused of an offence referred to in—
(i) Part
I of Schedule 2; or
(ii) Part II, III or IV of Schedule 2 and the court is
of the opinion that the offence concerned merits punishment in
excess of
the jurisdiction of a regional court in terms of section
51(2),
the
court shall stop the proceedings and commit the accused for sentence
as contemplated in section 52(1) or (2), as the case
may be, by a
High Court having jurisdiction.”
13
Section 52(3) provides:
“
(a) Where an accused is committed under subsection
(1)(b) of sentence by a High Court, the record of the proceedings in
the regional
court shall upon proof thereof in the High Court be
received by the High Court and form part of the record of that
Court.
(b) The High Court shall, after considering the record
of the proceedings in the regional court, sentence the accused as
contemplated
in section 51(1) or (2), as the case may be, and the
judgment of the regional court shall stand for this purpose and be
sufficient
for the High Court to pass such sentence: Provided that
if the judge is of the opinion that the proceedings are not in
accordance
with justice, he or she shall, without sentencing the
accused, obtain from the regional magistrate who presided at the
trial
a statement setting forth his or her reasons for convicting
the accused.
(c) If a judge acts under the proviso to paragraph (b),
he or she shall inform the accused accordingly and postpone the
case
for judgment, and, if the accused is in custody, the judge may
make such order with regard to the detention or release of the
accused as he or she may deem fit.
(d) The Court in question may at any sitting thereof
hear any evidence and for that purpose summon any person to appear
to give
evidence or to produce any document or other article.
(e) Such Court, whether or not it has heard evidence
and after it has obtained and considered a statement referred to in
paragraph
(b) may—
(i) confirm the conviction and thereupon impose a
sentence as contemplated in section 51(1) or (2), as the case may
be;
(ii) alter the conviction to a conviction of another
offence referred to in Schedule 2 and thereupon impose a sentence as
contemplated
in section 51(1) or (2), as the case may be;
(iii) alter the conviction to a conviction of an
offence other than an offence referred to in Schedule 2 and
thereupon impose
the sentence the Court may deem fit;
(iv) set
aside the conviction;
(v) remit the case to the regional court with
instruction to deal with any matter in such manner as the High Court
may deem fit;
or
(vi) make any such order in regard to any matter or
thing connected with such person to the proceedings in regard to
such person
as the High Court deems likely to promote the ends of
justice.”
14
S
v Albert Phaswane and Aaron Mokoena
Case No CC192/2007, North Gauteng High Court, Pretoria, 14 August
2007, unreported.
15
These organisations are The Centre for Child Law; The Centre for the
Study of Violence and Reconciliation; The Tshwaranang Legal
Advocacy
Centre; People Opposed to Women Abuse; The Association of Regional
Magistrates of South Africa; The Child Welfare Society;
the National
Council of Traditional Leaders; Child Line South Africa; the
National Council of Religious Leaders of South Africa;
BEE Court
Wise; The Child Witness Research and Training Institute,
Grahamstown; The South African Human Rights Commission; The
Health
Professions Council of South Africa; Molo Shongololo; and the Open
Society Foundation.
16
Above n 14.
17
These orders are set out fully in n 125 and 129 below.
18
The court concluded that there was nothing preventing it from
considering the credibility of the complainant and the reliability

of her evidence. And it recorded that neither the defence nor the
state objected to it doing so. While noting that the regional

court had been “singularly insensitive to the child’s feelings
and the child’s interests in not being identified as a
victim of
a sexual assault”, the court concluded that the “irregularities
did not redound to the accused’s detriment.”
(
S
v A Mokoena and A Phaswane
Case No CC7/07,
North Gauteng High Court, Pretoria, 24 October 2008, unreported at
p 22.) This largely related to the fact
that the proceedings were
open to the public after the child had completed her testimony.
(Above n 10 at para 3(j)-(n).)
It found the complainant to be a
credible witness and accordingly confirmed the conviction.
19
Potgieter
v Die Lid van die Uitvoerende Raad: Gesondheid Provinsiale Regering
Gauteng en Andere
[2001] ZACC 4
;
2001 (11) BCLR 1175
(CC);
S
v Williams
[1995] ZACC 6
;
1995 (3) SA 632
(CC);
1995 (7)
BCLR 861
(CC).
20
Section 2 of the Constitution.
21
Section 165(2) read with item 6 of Schedule 2 of the Constitution.
22
Carmichele v Minister of Safety and Security
(Centre for
Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 33.
23
Id at para 36.
24
Id at para 39.
25
CUSA v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (1) BCLR 1
(CC) at para 68. See also
Matatiele Municipality
v President of RSA (No 1)
[2006] ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at para 67;
Alexkor Ltd v The Richtersveld
Community
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR
1301
(CC) at para 44.
26
As we pointed out in
Matatiele 1
, this would be contrary to
the supremacy clause of the Constitution which proclaims the
supremacy of the Constitution and declares
law or conduct
inconsistent with it invalid.
Matatiele 1
at para 67 and
Alexkor
at para 43.
27
Daniels v Campbell and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC)
at para 45.
28
CUSA
per O’Regan J above n 25 at para 132.
29
Above n 10
at para 19.
30
Id at para 24; See also
De Kock NO and
Others v Van Rooyen
2005 (1) SA 1
(SCA).
31
Above n 10 at
para 25.
32
Id at para 26. The High Court identified these
as:
“
(a) Whether evidence that was given in a
fashion that might be regarded as unconstitutional should be
received.
(b)
Whether the
lengthy postponements had a telling effect upon the children's
evidence.
(c) Whether the conduct of the proceedings was
constitutionally appropriate and, if not, what remedy there might
be—i.e. should
the matter be remitted to the regional magistrate
with an instruction to re-hear the evidence of the complainant in
the Phaswane
matter through an intermediary?
(d) If not, could the evidence pass muster if it
was held that it was tainted by unconstitutionality?”
33
Id at para
28.
34
Alexkor
above n 25 at
para 44;
Paddock Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A) at p 23-4.
35
Paddock Motors
above n 34 at p 24B-D.
36
Glenister v President of the Republic of South Africa and Others
[2008] ZACC 19
;
2009 (1) SA 287
(CC);
Doctors for Life International v
Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC);
President of the Republic of South
African and Others v South African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC);
Ex
parte Chairperson of the Constitutional Assembly: in re
certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC).
37
In
Independent Electoral Commission v
Langeberg Municipality
[2001] ZACC 23
;
2001
(3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at para 11, this Court held
that:
“
This
Court has a discretion to decide issues on appeal even if they no
longer present existing or live controversies. That discretion
must
be exercised according to what the interests of justice require. A
prerequisite for the exercise of the discretion is that
any order
which this Court may make will have some practical effect either on
the parties or on others. Other factors that may
be relevant will
include the nature and extent of the practical effect that any
possible order might have, the importance of
the issue, its
complexity, and the fullness or otherwise of the argument advanced.
This does not mean, however, that once this
Court has determined one
moot issue arising in an appeal it is obliged to determine all other
moot issues.”
38
Matatiele 1
above n 25 at para 68.
39
The High Court identified the following
constitutional issues:
The compellability of the child to testify,
either with or without the assistance of an intermediary.
The child witnesses’
entitlement to the services of an intermediary.
The child witnesses and complainant's
entitlement to testify
in camera.
The child witnesses entitlement to testify via
an electronic device or closed circuit television.
The need for the child witness to be admonished
to speak the truth.
The competence of the child to testify if it
does not understand the concept of telling the truth.
Whether, therefore, ss 153, 158, 164 and 170A
are constitutionally compatible in their present form.
Whether the present availability of intermediaries and electronic
devices to enable a child to testify otherwise than in the
presence
of the alleged perpetrator is constitutionally compatible.
Whether a child witness or victim is entitled to the presence of a
support person.
The constitutional implications of systemic delays affecting the
child witness or the child victim.
The existing deficiencies in the process should be addressed.”
40
Above n 18 at p 19.
41
Above n 10 at para 25. See also paras 26-8.
42
Id at p
aras 15-8.
43
Id at para 24.
44
Above n 3.
45
It is true that in
Khosa
this Court held that a court may
make an order concerning the constitutional invalidity of an Act of
Parliament that has not yet
been brought into force. (
Khosa and
Others v Minister of Social Development and Others; Mahlaule and
Others v Minister of Social Development and Others
[2004] ZACC
11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC) at paras 90-3.) In
that case, we reasoned that in terms of section 81 of the
Constitution, a bill that has been signed
by the President becomes
an Act of Parliament and in terms of section 172(2)(a) of the
Constitution a court may make an order
concerning the constitutional
validity of an Act of Parliament. (Id at paras 90 and 138.) The
problem in these cases is that
the Sexual Offences Amendment Act was
only signed by the President on 13 December 2007, a year and a half
after Mr Mokoena was
convicted (7 July 2006), and more than a year
after Mr Phaswane was convicted (22 September 2006). Indeed, this
was after the
matter had been referred to the High Court for
sentence and after the High Court had raised the constitutional
issues.
46
Section 167(4) provides:
“
Only
the Constitutional Court may—
(a) decide disputes between organs of state in the
national or provincial sphere concerning the constitutional status,
powers
or functions of any of those organs of state;
(b) decide on the constitutionality of any
parliamentary or provincial Bill, but may do so only in the
circumstances anticipated
in section 79 or 121;
(c) decide
applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to
the Constitution;
(e) decide that Parliament or the President has failed
to fulfil a constitutional obligation; or
(f) certify
a provincial constitution in terms of section 144.”
47
Section 79(4) provides:
“
If,
after reconsideration, a Bill fully accommodates the President’s
reservations, the President must assent to and sign the
Bill; if
not, the President must either—
(a) assent
to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision
on its constitutionality.”
48
Van Straaten v The President of the Republic of South Africa and
Others
[2009] ZACC 2
, 24 February 2009, as yet unreported, at
paras 4-5;
Doctors for Life
above n 36 at para 43 and
1419A-C;
President of the Republic of South Africa and Others v
United Democratic Movement (African Christian Democratic Party and
Others
Intervening; Institute for Democracy in South Africa and
Another as Amici Curiae)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC) at para 26.
49
Above n 36 at para 57 and 1422H-A.
50
Above n 10 at paras 71-4.
51
President,
Ordinary Court Martial and Others v Freedom of Expression Institute
and Others
[1999]
ZACC 10
;
1999 (4) SA 682
(CC)
;
1999 (11) BCLR 1219
(CC) at para 8.
52
Id at para 16.
53
Id and above n 37 at para 9.
54
Zantsi v Council of State, Ciskei, and Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC) at para 8.
55
Zondi v MEC for Traditional and Local Government Affairs and
Others
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at para 35
56
Above n 51 at para 14.
57
Id at para 15.
58
Id at para 16.
59
See also
above n 37 at para 11.
60
Above n 27 at para 45.
61
Section 39(1)(a) provides:
“
When
interpreting the Bill of Rights, a court, tribunal or forum—
(a) must
promote the values that underlie an open and democratic society
based on human dignity, equality and freedom”.
62
Minister of Welfare and Population Development v Fitzpatrick and
Others
[2000] ZACC 6
;
2000 (3) SA 422
(CC);
2000 (7) BCLR 713
(CC) at para 17.
63
S v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR
1312
(CC) at para 26.
64
Sonderup v Tondelli and Another
[2000] ZACC 26
;
2001 (1) SA
1171
(CC);
2001 (2) BCLR 152
(CC) at para 2.
65
Above n 63 at para 15.
66
Id.
67
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3) SA 391
(CC) at paras 34-5.
68
These include the United Nations Universal Declaration of Human
Rights (ratified by South Africa in 1995), in particular, Article
25
(childhood is “entitled to special care and assistance”); United
Nations Convention on the Rights of the Child (ratified
by South
Africa on 16 July 1995), in particular, Articles 3 and 39; United
Nations Convention on the Rights of Persons with Disabilities

(ratified by South Africa on 30 November 2007), in particular,
Article 7.2 (“In all actions concerning children with
disabilities,
the best interests of the child shall be a primary
consideration.”); Guidelines on Justice in Matters involving Child
Victims
and Witnesses of Crime issued by the United Nations Economic
and Social Council (the recommendation was made by South Africa to

adopt it in May 2005).
69
The African Charter on the Rights and Welfare of the Child (ratified
by South Africa on 7 January 2000), in particular, Article
4.
70
This Convention was adopted by the General-Assembly on 20 November
1989 and entered into force on 2 September 1990.
71
This Charter was entered into force on 29 November 1999. See also
S
v M
above n 63 at para 16 and
Director of Public
Prosecutions, KwaZulu-Natal v P
2006 (3) SA 515
(SCA);
[2006] 1
All SA 446
(SCA) at para 13.
72
Article 4(1).
73
General Comment No. 7 (2005) of the United Nations’ Committee of
the Rights of the Child at para 13.
74
General Comment No. 5 (2003) of the United Nations’ Committee of
the Rights of the Child.
75
These Guidelines include the right of child victims and witnesses to
be treated with dignity and compassion (para 10); the right
to be
informed of the availability of protective measures (para 19); the
right to be protected from hardship during the justice
process (para
29), including the use of child sensitive procedures, modified court
environments to take the child victim into
consideration (para
30(d)); and in giving evidence out of sight of the alleged
perpetrator (para 31(b)).
76
Para 8(c)(i) and (ii) of the Guidelines.
77
Para 30(d) and 31(b) of the Guidelines.
78
Para 11 of the Guidelines.
79
Para 10 of the Guidelines.
80
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC)
at
para 72;
National Director of Public
Prosecutions and Another v Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR 476
(CC) at para
35
;
Olitzki
Property Holdings v State Tender Board and Another
[2001] ZASCA 51
;
2001 (3) SA 1247
(SCA);
2001 (8) BCLR 779
(SCA) at
para 20;
S v
Dzukuda and Others; S v Tshilo
[2000] ZACC 16
;
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC) at
para 37(a);
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
(
Hyundai
)
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at
paras 21-6;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC)
at
paras 23-4;
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para
85;
and
Bernstein
and Others v Bester and Others NO
[1996]
ZACC 2
;
1996 (2) SA
751
(CC);
1996 (4) BCLR 449
(CC) at para 59.
81
Hyundai
above n 80 at para 22.
82
Above n 27 at para 43.
83
Hyundai
above n 80 at para 24 and
Daniels
above n 27
at para 46.
84
Hyundai
above n 80 at para 23 and
Daniels
above n 27
at para 46.
85
Above n 10 at para 78.
86
Id at para 79.
87
Id.
88
Id at paras 79-80.
89
1999 (1) SACR 182
(C).
90
Id at 188. Our attention was also drawn to a research study that
was conducted in which two magistrates, who deal with sexual

offences in Port Elizabeth were interviewed and gave different
meanings of the phrase. (Muller & Tait “Little Witnesses:
A
Suggestion for Improving the Lot of Children in Court”
(1999) 62
THRHR
241
at 245-6). One magistrate suggested that the
phrase means “excessive emotional stress and intimidation.” It
was submitted
that this raised the bar too high and makes it almost
impossible to meet the requirement of the section. Yet, another
magistrate
suggested that it means “stressful circumstances in
which a minor has to testify amongst strangers in an intimidatory
environment
like a court of law and reveal intimate or violent
conduct against her”(at 246). It was submitted that by contrast,
this view
lowers the bar and makes it possible for a child victim to
testify through an intermediary as almost all child victims would

fall within this definition of “undue mental stress or suffering”.
91
In this regard, our attention was drawn to the case of
S v F
1999 (1) SACR 571
(C) in which the state applied for the appointment
of an intermediary and in support of its application led the
evidence of the
mother of the child as well as a psychiatrist. The
evidence of the mother of the child was to the effect that after the
alleged
rape, the child had become mentally and emotionally fragile.
This evidence was corroborated to a significant extent by a
psychiatrist
who examined the child and expressed the opinion that
the child was suffering from a partially unresolved post-traumatic
stress
disorder as a result of the rape. In addition, the
psychiatrist expressed the opinion that testifying in an open court
would
have an adverse effect upon her psychiatric condition and that
the procedures adopted for her to testify in court should be
softened
or mediated so as to assist her.
Despite all of this, the court refused the
appointment of an intermediary holding that the crucial question is
not whether the
child was mentally or emotionally fragile after the
alleged rape, but what impact, if any, testifying in court in the
presence
of the accused is likely to have upon her. What the court
found significant was that the psychiatrist did not say that the
mere
presence of the accused would bring about stress, although the
court was mindful of the psychiatrist’s evidence to the effect

that testifying in the presence of the accused might very well
aggravate her distressed state. (at p 584). The court concluded

that mere testifying about the alleged rape even through an
intermediary would prove extremely distressful to the child. It

therefore concluded that there is very little difference between her
testifying through an intermediary and testifying in an
open court.
It accordingly declined to appoint an intermediary.
92
South African Law Reform Commission Project 107 “Sexual Offences”
Report: December 2002
at p 147.
93
Act 135 of 1991.
94
Section 170A(2)(b) of the CPA.
95
Section 170A(3)(a) of the CPA.
96
Paras 29-31 of the Guidelines.
97
Key “The Child Witness: The Battle for Justice” (1988) No 241
De
Rebus
54 at 55.
98
Id at 56.
99
Above n 89 at
187F-G;
K
v The Regional Court Magistrate NO and Others
1996
(1) SACR 434
(E) at 442C-443F; See also
S v Manqaba
2005 (2) SACR 489
(W) at paras 30-1.
100
Above n
63.
101
According to para 19(e) of the Guidelines, a court is obliged to
draw the attention of the parent or guardian of the child victim
to
the availability of protective measures.
102
Above n 91.
103
Id at
583G-I.
104
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995
(4) BCLR 401
(CC).
105
Id at para 28.
106
See for example
S v Dlamini; S v Dladla and Others; S v Joubert;
S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7)
BCLR 771
(CC) at para 50;
Sanderson v Attorney-General, Eastern
Cape
[1997] ZACC 18
;
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at para 30; and
Shabalala and Others v Attorney-General of
the Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12) BCLR 1593
(CC) at para 55.
107
Cited in
Davis
Discretionary
Justice: A Preliminary Inquiry
(Louisiana State University Press, Baton Rouge 1969) at 17.
108
Dawood and Another; Shalabi and Another;
Thomas and Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8)
BCLR 837
(CC) at para 53.
109
Paras 10-4 of the Guidelines.
110
Para 10 of the Guidelines.
111
Id.
112
Para 11 of the Guidelines.
113
Para 9(d) of the Guidelines.
114
S v Acheson
1991 (2) SA 805
(NmHC) at 813.
115
Above n 10
at para 108.
116
Section 153(3) of the CPA.
117
Section 36(1) provides:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
118
Independent Newspapers (Pty) Ltd v Minister for Intelligence
Services (Freedom of Expression Institute as Amicus Curiae) In re:

Masetlha v President of the Republic of South Africa and Another
[2008] ZACC 6
;
2008 (5) SA 31
(CC);
2008 (8) BCLR 771
(CC) at
paras 39-42;
Shinga v The State (Society of Advocates,
Pietermaritzburg Bar, as Amicus Curiae);
O’Connell and
Others v The State
[2007] ZACC 3
;
2007 (4) SA 611
(CC);
2007 (5)
BCLR 474
(CC) at para 26; and
South African Broadcasting
Corporation Ltd v National Director of Public Prosecutions and
Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at para 32.
119
Shinga
above n 118
at para 26.
120
Above n 10 at paras 75-8 and 115-26.
121
Section 1(d) of the Constitution.
122
S v V
1998 (2)
SACR 651
(C) at 652G-653B.
123
Above n 10 at para 139.
124
Above n 122 at 654B-I.
125
Paragraphs 8–10 of the order provide:
“
8. It is declared that criminal trials in which
children are involved as complainants or witnesses must, in terms of
section 28(2)
of the Constitution, be given as much priority in the
investigative and prosecution phases as the available resources
permit;
9. It is declared that children who appear as
complainants or witnesses in criminal trials have the right, in
terms of section
28(2) of the Constitution, to be assisted by an
intermediary and to make use of electronic devices such as closed
circuit television
while giving evidence to the extent that
available resources permit;
10. It is declared that children who are involved as
complainants and witnesses in criminal trials are entitled to have
these
trials conducted by presiding officers, prosecutors, court
staff and other participants who have adequate expertise to deal
with
children as such witnesses or complainants.”
126
Id at para 8 of the order.
127
Id at para 9 of the order.
128
Id at para 10 of the order.
129
Paragraphs 11–16 of the order provide:
“
11. It is noted that the Criminal Justice System
faces critical systemic challenges;
12. The Minister of Justice is ordered to refer the
matters addressed in paragraphs 8, 9 and 10 above to the
Inter-Sectoral Committee
responsible for the development of the
National Policy Framework with the instruction to address the
systemic shortcomings as
part of such framework, where possible with
the co-operation of such NGOs as are willing and able to assist the
Committee;
13. The National Commissioner of the South African
Police Services and the Director of Public Prosecutions are ordered
to consider
the matters addressed in paragraphs 8, 9 and 10 above as
part of their directives to be issued in terms of section 66 of Act

32 of 2007 in order to eliminate existing shortcomings, where
possible with the co-operation of NGOs willing and able to assist

the Commissioner and the Director;
14. The Minister, the National Commissioner of the
South African Police Services and the Director of Public
Prosecutions are ordered
to report to the court one year from the
date of this order and inform the court and the parties and
amici
of the progress made in addressing existing backlogs;
15. The parties and the
amici
are given leave to
approach the court within thirty days after receipt of such reports
with a request to raise further issues
with the court, should such
be necessary;
16. This matter is referred to the Honourable Constitutional Court.”
130
Section 38 provides:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.”
Section 172(1)(b) provides:
“(1)
When deciding a constitutional matter within its power, a court—
may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the
declaration
of invalidity; and
(ii) an order suspending the declaration of invalidity for any
period
and on any conditions, to allow the competent
authority
to correct the defect.”
Fose v Minister of
Safety and Security
[1997] ZACC 6
;
1997 (7) BCLR 851
(CC);
1997 (3) SA 786
(CC) at para 19 provides:
“
Appropriate relief will in
essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances
of each particular
case the relief may be a declaration of rights, an interdict, a
mandamus
or
such other relief as may be required to ensure that the rights
enshrined in the Constitution are protected and enforced. If
it is
necessary to do so, the courts may even have to fashion new remedies
to secure the protection and enforcement of these
all-important
rights.” (Footnote omitted.)
131
See above n 129 at para 12 of the order.
132
See above n 129 at para
13 of the order.
133
See above n 129 at para 14 of the order.
134
Above n 10
at
para 95.
135
Minister of Health and Others v
Treatment
Action Campaign and Others
(No.
2)
[2002] ZACC 15
;
2002 (10) BCLR 1033
(CC);
2002 (5) SA 721
(CC) at para 98;
Doctors
for Life
above n 36 at para 199 and
1462E-F.
136
Doctors for Life
above
n 36 at para 39 and 1417C-E.
137
Section 85(2)(b) of the Constitution provides:
“
(2) The President exercises the executive authority,
together with the other members of the Cabinet, by—
(b) developing and implementing national policy.”
138
Section 62(1)(b) provides:
“
(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—
(b) guide the implementation, enforcement and
administration of this Act”.
139
See for example
S v Kasebedile
Case No CC201/05, North West
High Court, Mafikeng, 4 October 2005, unreported and the case of
S
v Ronny Seboko
Case No SH84/06, Brits Regional Court, 2
September 2008, unreported, which was made available to this Court.
140
Seboko
above n 139.
141
Id.
142
Section 342A(1) provides:
“
(1) A
court before which criminal proceedings are pending shall
investigate any delay in
the completion
of proceedings which appears to the court to be unreasonable and
which could cause substantial prejudice to the
prosecution, the
accused or his or her legal adviser, the State or a witness.”
Section 342A(3)(f)
provides:
“
(3) If
the court finds that the completion of the proceedings is being
delayed unreasonably, the court may issue any such order
as it
deems fit in order to eliminate the delay and any prejudice arising
from it or to prevent further delay or prejudice,
including an
order—
(f) that the matter be referred to
the appropriate authority for an administrative investigation and
possible disciplinary action
against any per
son
responsible for the delay.”
143
Seboko
above n 139.
144
Reyneke & Kruger “Sexual Offences Courts:
Better justice for children?” (2006) 31(2)
Journal
for Juridical Services
73.
145
Section 165(4) of the Constitution.
146
Section 165(5) of the Constitution.
147
Matatiele 1
above n 25 at para 68.
148
Id.
149
Id at para 90.
150
Id at para 68.
151
Section 62(1)(b) of the Sexual Offences Amendment Act.
1
For reasons explained in this judgment,
“the
improperly raised provisions” do not include section 170A(1) of
the CPA. I will refer to all six sections declared invalid
by the
High Court as “the invalidated provisions”.
2
President, Ordinary Court Martial, and Others
v Freedom of Expression Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
(CC) at
para 16. See also,
Khosa
and Others v Minister of Social Development and Others; Mahlaule and
Another v Minister of Social Development
and Others
[2004]
ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC)
at para 32.
3
The existence of a discretion in
this regard is recognised by Ngcobo J at [60] and [68] above.
4
Ordinary Court Martial
above
n 2 at para 8.
5
Id at para 16 where Langa CJ stated: “
At
least
where the provision declared invalid by the High Court has
subsequently been repealed by an Act of Parliament, the Court has a

discretion to decide whether or not it should deal with the matter.”
(My emphasis.)
6
At [60]-[69] above.
7
Zantsi
v Council of State, Ciskei and Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC) at para 8. See
also
Sibiya
and Others v Director of Public Prosecutions: Johannesburg High
Court and Others
[2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812 (CC)
at para 44; and
Van
der Merwe v Road Accident Fund and Another
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) at para
21
.
8
Section 165(2) of the Constitution.
9
Cameron “Judicial Accountability in South Africa” (1990) 6
South
African Journal on Human Rights
251 at 264.
10
Glenister
v President of the Republic of South Africa and Others
[2008]
ZACC 19
;
2009 (1) SA 287
(CC);
2009 (2) BCLR 136
(CC) at para
33.
11
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para 37;
2006
(12) BCLR 1399
(CC) at 1417D-E, cited with approval in
Glenister
above n 10 at para 34.
12
Zantsi
above n 7
at fn 8, citing
Borowski v Canada
(Attorney General)
[1989]
1 S.C.R 342
at 358-62 (a case which discusses this principle in the
context of mootness).
13
See sections 79 and 121 of the Constitution.
14
See, for example,
Lawyers for Human Rights and Another v Minister
of Home Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR 775
(CC) at paras 14-6.
15
Fose v Minister of Safety and Security and Another
[1997]
ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 19, (a
case
which dealt with the comparable provision
in the interim Constitution, section 7(4)).
16
Doctors for Life
above
n 11 at para 37; 1417D-E.
17
At
[237]-[241].
18
S
v Mokoena
[2008] ZAGPHC 148
;
2008 (5) SA 578
(T) at paras 71-4.
19
The
bill, which was eventually enacted as the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act
32 of 2007
, added only three words to
section
170A(1).
Specifically, it allowed judicial officers to appoint
intermediaries not only to assist child victims but also to assist
victims
under the “biological or mental” age of 18 years.
Because the child victim in the Phaswane matter was only 13 years
old
when she testified, the new text could not have applied on the
facts of the case.
20
Section 167(4)(b) of the Constitution states:
“Only the Constitutional Court may—
(b) decide on the constitutionality of any parliamentary or
provincial Bill, but may do so only in the circumstances anticipated

in section 79 or 121”.
21
Ex parte President of the Republic of South
Africa: In re Constitutionality of the Liquor Bill
[1999]
ZACC 15
;
2000 (1) SA 732
(CC);
2000 (1) BCLR 1
(CC) at para 16. See
also
Van Straaten v President of the
Republic of South Africa
and
Others
[2009] ZACC 2
(unreported) at
para 4.
22
President of the Republic of South Africa and
Others v United Democratic Movement (African Christian Democratic
Party and Others
Intervening; Institute for Democracy in South
Africa and Another as Amici Curiae)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC) at
para 26.
23
Id.
24
The accused do not oppose confirmation of the
declarations of invalidity pertaining to sections 153(3), 153(5),
158(5) (except
in so far as section 158(5) may have a negative
effect on their appeal) and 164(1) of the CPA. By way of example,
section 153(5)
of the CPA grants discretion to a court to allow a
child witness to testify in camera. However, this provision could
not have
arisen on the facts of the Mokoena and Phaswane matters, as
both children who testified were child victims rather than simply
child witnesses. Therefore, the discretion afforded to judicial
officers in respect of child-witnesses could not have arisen.
25
In court proceedings, relevance is a
crucial principle that limits the admissibility of evidence, defines
the boundaries of pleadings
and informs the scope of the judicial
function. Schwikkard and Van der Merwe locate the rationale for
this foundational common
law principle, at least in part, in “the
undesirability of a court being called upon to adjudicate matters
which are not related
to the litigation at hand [and] the risk that
the real issues might become clouded”.
Principles
of Evidence
2ed
(Juta Law, Cape Town 2002) at 46.
26
Section 35(3)(d) reads:
“(3)
Every accused person has a right to a fair trial, which includes the
right—
(d) to have their trial begin and conclude without unreasonable
delay”.
27
Act
105 of 1997. At the time the offences were committed in the
Phaswane and Mokoena matters, section 52(1) of the Act, read
with
section 51 and Schedule 2, required the commital of convictions in
respect of certain crimes, including murder, rape and
aggravated
robbery, to High Courts for confirmation and sentencing.
28
S v A Mokoena and A Phaswane
Case No CC7/07, the North
Gauteng High Court, Pretoria, 24 October 2008, unreported at p 16.
29
Id at p 19.
30
Id at p 16.
31
See s
ection 28(2) of the Constitution.
32
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 36.
33
Van Wyk v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para
33.
34
Id. There, this Court said:
“
Last
term alone, in eight out of ten matters, litigants did not comply
with the time limits or the directions setting out the
time limits.
In some cases litigants either did not apply for condonation at all
or if they did, they put up flimsy explanations.
This
non-compliance with the time limits or the Rules of Court resulted
in one matter being postponed and the other being struck
from the
roll. This is undesirable. This practice must be stopped in its
tracks.”
35
A
t [44] - [49] and [55] above.