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[2023] ZAWCHC 168
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S v Lenting and Others (CC08/2018) [2023] ZAWCHC 168; 2023 (2) SACR 409 (WCC) (24 July 2023)

FLYNOTES:
CRIMINAL – Witnesses –
Identity
protection
–
Witness
reported experiencing symptoms of a panic attack when she
recounted crime she had witnessed – Suffering from
anxiety –
Expert opinion is that there is a possibility that witness may
experience further trauma if she testifies
in presence of accused
– Recommended witnesses testify in camera through a
closed-circuit television – It would
be detrimental to
principles of fairness and justice to force an adult witness who
is afraid of accused to testify in open
court where she may
experience anxiety – To expose such a witness to aggressive
cross-examination by accused would
not be in line with proper
administration of justice – Various charges levelled against
accused are gang related –
Fears danger to her life and
family – Application granted –
Criminal Procedure Act
51 of 1977
,
ss 153
and
158
.
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE NO: CC08/2018
In
the matter between:
THE
STATE
And
ELTON
LENTING AND 19 OTHERS
ACCUSED
JUDGMENT – 24
July 2023
LEKHULENI J
[1]
The twenty accused in this case are facing a slew of charges
totalling 145. The State has brought
applications in terms of
sections 158(2)(b) and 153(2)(b), of the Criminal Procedure Act 51 of
1977 (“the CPA”) in
which it seeks an order that the
witness it intends calling testify behind closed doors through a
closed-circuit television and
that her identity should not be
disclosed to the public. The relevant counts in these applications
are count 124 to 126. These
counts involve a charge of Housebreaking
with intent to commit Murder and Murder, Possession of Unlicensed
Firearm, and Possession
of Ammunition. These counts implicate accused
1, 2, 3, and 9. At the hearing of these applications, Mr De Villiers,
who appears
on behalf of accused 1, 2, and 3, informed the court that
his clients do not oppose the applications. However, Mr Badenhorst,
who
appeared on behalf of accused 9, opposed the State’s
applications.
[2]
Mr Damon, who appeared on behalf of the State, sought an order that
the identity of the witness
he intended to call in respect of the
abovementioned counts be anonymous in respect of the proceedings in
court in terms of section
153(2)(b) of the CPA. The State also sought
an order that the said witness’s identity should not be
revealed or published
and that the witness’s evidence be
rendered in camera in terms of section 153(2)(a) of the CPA. In
addition, the State sought
an order that a closed-circuit television
or similar electronic media be used for the said witness’s
evidence in terms of
section 158(2) of the CPA.
[3]
Counsel for the State, tendered oral submissions and further handed
in an expert report of a Clinical
Psychologist, (“Colonel
Clark”) who assessed the witness in question. The State also
submitted an affidavit of the
investigating officer supporting these
applications.
[4]
In her report, Colonel Clark notes that the said witness appears to
be suffering from anxiety.
The witness reported experiencing symptoms
of a panic attack
when she recounted the crime
she witnessed.
Colonel Clark's report indicates that the
witness experiences heart palpitations and difficulty in breathing
when she is under
emotional stress. She feels as though there is a
weight on her chest and shakes. Colonel Clark further reported that
the witness
evinced symptoms of Post-Traumatic Stress Disorder
(“PTSD”) and was visibly distressed by the events she had
witnessed.
In her expert opinion, there is a possibility that this
witness may experience further trauma if she testifies in the
presence
of the accused. She recommended that the witnesses testify
in camera through a closed circuit television.
[5]
Her sentiments were shared by the investigating officer, Sergeant Van
Wyk. The investigation officer
alluded to the fact that the specific
witness, has since the incident, obtained permanent employment. The
witness’s personal
circumstances have significantly changed
since the incident in that she has become a parent with a stable
environment. The witness
is also currently in the early stages of
pregnancy, which will make the process of testifying in court more
traumatic and intense
for her. The investigating officer also notes
that the witness is terrified that her identity will become known and
that this will
have severe security implications and consequences for
her and her minor children if made known.
[6]
Accused 9, on the other hand, also tendered oral submission through
his counsel in opposition
to the State’s application and also
deposed to an affidavit in which he set out reasons why he opposed
the application. Accused
9 contends that he is entitled to a public
hearing in an open court in terms of section 35(3)(c) of the
Constitution and that he
stands accused of charges of murder that he
did not commit. Wherefore, he has a right to see the witness present
in court so that
her demeanour can be observed when his legal
representative cross-examines her. Accused 9 avers in his affidavit
that he did not
see the room where the witness would be testifying
from, nor is he certain that the witness would testify spontaneously
without
reading from a document.  During consultation, his legal
representative showed him the statement where the names of the
witness
in question appear at the top of the statement. For this
reason, he contends that it serves no purpose that the relief the
State
is seeking be granted.
Submissions by the
Parties
[7]
At hearing of this application, Mr Damon submitted that the witness
feels intimidated and would
suffer harm as tension would rise if she
testifies in the presence of the accused. He impressed upon the court
to grant the orders
as prayed. Mr Badenhorst, on the other hand,
submitted that this court should be hesitant when exercising its
discretion in limiting
an accused’s right. Counsel argued that
the court should not adopt an approach of allowing applications of
this nature as
a general rule, but instead in very exceptional
circumstances, while still having regard to the well-known case of
S
v Staggie and Another
2003 (1) SACR 232
(C) which the Supreme
Court of Appeal approved.
[8]
Mr Badenhorst further submitted that the application in this matter
is distinguishable from the
case of
Staggie
in that the
witness in
Staggie
was a complainant in a rape matter, in
which case the court would be more inclined to grant an application
if it is merited.
Counsel stated that there is
no reason why the complainant cannot testify as an ordinary witness
in open court.
Counsel contended that in the present matter,
the court should take into consideration the fact that the witness is
known to the
accused; she is 32 years old and was 25 years old at the
time of the murder; that the witness has passed grade 12 and that at
the
time of the alleged incident, the witness was involved in a
relationship (for 8 years) with the deceased who was a member of the

28 gang.
[9]
Furthermore, the argument was that allowing the witness to testify
behind closed doors would make
the trial unfair and not serve the
interest of justice or the public, including the family members of
the accused. The advantage
of cross-examining the witness when in
court, counsel argued, has a distinguished advantage for the defence
and should not be readily
denied.
Relevant Legal
Principles and Discussion
[10]
Section 153 and 158 complement each other, and for the sake of
completeness, I will consider the State’s
applications in terms
of two sections jointly. The relevant parts of section 153 provide as
follows;
(1)
In addition to the provisions of
section 63(5)
of the
Child Justice
Act, 2008
, if it appears to any court that it would, in any criminal
proceedings pending before that court, be in the interests of the
security
of the State or of good order or of public morals or of the
administration of justice that such proceedings be held behind closed

doors, it may direct that the public or any class thereof shall not
be present at such proceedings or any part thereof.
(2)
If it appears to any court at criminal proceedings that there is a
likelihood that harm might result to any person, other than
an
accused, if he testifies at such proceedings, the court may direct—
(a)
that
such person shall testify behind closed doors and that no person
shall be present when such evidence is given unless his presence
is
necessary in connection with such proceedings or is authorized by the
court;
(b)
that
the identity of such person shall not be revealed or that it shall
not be revealed for a period specified by the court.
[11]
Meanwhile, the relevant parts of
section 158
provide as follows:
(2)
(a)
A
court may, subject to
section 153
, on its own initiative or on
application by the public prosecutor, order that a witness,
irrespective of whether the witness is
in or outside the Republic, or
an accused, if the witness or accused consents thereto, may give
evidence by means of closed circuit
television or similar electronic
media.
3 …
(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.
[12]
It is trite that trial proceedings should be held in open court
unless there are compelling reasons to close
the court doors for the
public and the media. O
ur court
system is based on the open justice principle, which is
constitutionally entrenched in section 35(3)(c) of the Constitution.

This section provides that everyone has a right to a fair trial,
which includes a right to a public trial before an ordinary court.

The right to a fair public hearing entrenched in the Constitution
guards against the iniquities of secret trials and contributes
to
public confidence in the justice system.
Klink
v Regional Court Magistrate NO
1996 (3)
BCLR 402
(SE). It underscores
the
well-established principle of our law that justice must not only be
done but manifestly be seen to be done.
[13]
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.
S
v Mokoena; S v Phaswane
[2008] ZAGPHC 148
;
2008
(2) SACR 216
(T).
However, this right is not absolute. Like
other rights in Chapter 2 of the Constitution, it may be limited in
terms of section 36.
Depending on the circumstances, the court may
direct that the proceedings be held behind closed doors if the
interests of justice
so demand.
[14]
Section 153 expressly allows the courts, in exceptional cases, to
exclude the public or certain members or
categories of people from
attending the proceedings.
Section
158 on the other hand, allows witnesses to not testify directly in
courtrooms for a variety of reasons. Section 158(3) empowers
a Court
to allow for the giving of evidence through a closed-circuit
television or other electronic means if the facilities are
available.
Section 153 of the
CPA, is therefore intended to protect vulnerable witnesses from
public exposure, either because disclosure of
their identity may
endanger their lives or safety or because of the discomfort or
embarrassment at having to testify before an
audience.
[15]
Where the accused’s right to a fair trial (in the form of the
right to a public hearing) is at odds
with the provisions of sections
153 and 158, a court must
ensure
that the proceedings before it is fair and must
strike
a balance between those competing rights and determine what is in the
interest of justice. In resolving this conflict, the
Court
must protect those interests which, on the facts of the case,
weigh in favour of the proper administration of justice.
Crucially,
an
equitable and unbiased criminal
justice system can only be achieved if the rights of victims,
witnesses, and accused persons are
recognised, protected, and
balanced.
[16]
The Constitutional Court observed in
S v
Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) at para
29, that t
he right of
an accused to a fair trial requires fairness to the accused, as well
as fairness to the public as represented by the
State. It has to
instil confidence in the criminal justice system with the public,
including those close to the accused, as well
as those distressed by
the audacity and horror of crime.
[17]
I also find the dictum of Cloete JP, as he then was, in
S
v Madlavu and Others
1978 (4) SA 218
(E) at 225G - 226A,
apposite.
The learned justice stated as follows:
'It seems to me that the
administration of justice is made impossible unless witnesses can
give their evidence without fear of repercussions
and danger to
themselves. It is of paramount importance that the Courts should,
wherever possible, give such witnesses the protection
which the law
allows. Such protection is provided for in ss (2) of s 153.’
[18]
In many instances, sections 153 and 158 have been invoked in sexual
offences cases as well as in cases involving
minor children. However,
I must stress that the application of these sections is not
exclusively limited to child witnesses / offenders
and sexual
offences cases. These sections apply with equal force to adult
witnesses
whose evidence is likely
to be compromised by fear or distress about testifying in an open
court or in the accused’s presence.
In
Director
of Public Prosecutions, Transvaal v. Minister for Justice and
Constitutional Development and Others
2009
(2) SACR 130
(CC) para 115, within the context of section 170A of the
CPA, the Constitutional Court held that these measures 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. In my view, this

dictum applies with equal force regarding sections 153 and 158 of the
CPA.
[19]    In
the present matter, it was argued on behalf of the accused that the
court should not be readily inclined
to grant the application as this
is not a sexual offences matter and is distinguishable from
S v
Staggie
because there, the court was faced with a sexual offence
matter. Counsel for the accused further argued that the witness, in
this
case, had passed grade 12 and that there are 9 to 10 members of
the Tactical Response Team in this court to protect the witness.
[20]
This argument, with respect, is fundamentally flawed. As discussed
above, this court has a discretion to
dispense with the basic rule of
hearing a matter in open court if satisfied that the prescribed
jurisdictional facts set out in
these sections are present and that
there is a likelihood that harm may result if the witness testifies
in open court. More so,
section 12(1)(c) of the Constitution
guarantees a person's right to freedom and security, while section
12(1)(e) underscores the
need for a person not to be treated
inhumanly or degradingly.
[21]
During argument, the defence relied on the decision of the
Constitutional Court of
S v Shinga (Society of Advocates
(Pietermaritzburg) as Amicus Curiae; S v O’ Connell and Others
2007 (2) SACR 28
(CC) where the Constitutional Court had to consider
the constitutionality of section 309(3A), 309C(4)(c) and 309C(5)(a)
of the
CPA governing the rights of the accused persons convicted in
the Magistrates Court to appeal to the High Court against their
conviction
or sentence. In
S v Shinga,
it was held that
section 309(3A) provided for an appeal to be disposed of in chambers
without oral argument. The court found that
closed court proceedings
carry within them the seeds for serious potential damage to every
pillar on which every constitutional
democracy is based. The court
concluded that this section was inconsistent with the right of an
accused person to a fair trial
as appeals are to be held in open
court. Relying on this case, the defence argued that the court should
not be easily inclined
to grant the State’s applications.
[22]    In
my opinion, the present matter, is distinguishable to that of
S v
Shinga.
The court in
Shinga
dealt with some sections of
the CPA that endorsed the hearing of appeals in chambers as opposed
to hearing them in open court. In
the present matter, the proceedings
will only be held behind closed doors or through a closed circuit
television after the court
has weighed all the competing rights of
the parties and determined what would be fair and just in the
circumstances.
[23]
Undoubtedly, it would be detrimental to the principles of fairness
and justice to force an adult witness
who is afraid of the accused to
testify in open court where she may experience anxiety while
recounting what she saw during the
commission of the alleged crime.
To expose such a witness to aggressive cross-examination by the
accused in this circumstance,
would not be in line with proper
administration of justice. In my view, such an approach will have a
deleterious effect on the
witness and expose her to secondary trauma.
Similarly, such an approach would conflict with the tenets and the
values espoused
in the Constitution.
[24]
Crucially, the various charges levelled against the accused in the
present matter are gang related. The accused
have been charged in
terms of the provisions of the
Prevention of Organised Crime Act 121
of 1998
.  This court cannot simply ignore the witness’s
fears of danger to her life and family.
[25]    As
adumbrated above, the State has applied that the said witness be
allowed to testify in camera, through
a close circuit television, and
that her identity should not be disclosed. The court was informed
that the witness fears for her
life and exhibits symptoms of PSTD
when discussing the incident. The defence, on the other hand, has
submitted that the witness
is known to the accused and that during
consultation, the accused perused the witness’s statement, and
the names of the witness
in question appear at the top of the
statement. For this reason, so the contention proceeded, the
application must be dismissed.
[26]    I
have some difficulty with this argument. It must be stressed that the
protection envisaged in
sections 153
and
158
is not only aimed at
protecting a witness, but ensures that the evidence that is given to
the court is not reduced and diminished
in quality because of the
witness’s fear or distress in testifying in an open court or in
the presence of the accused. The
protection ensures that the witness
gives his evidence in a more coherent and relaxed manner. In other
words, the protection is
intended to ensure that the court obtains a
full and candid account from the witness of the acts complained of.
To this end, I
agree with the views expressed by Mr Damon that the
essence of the protection is crucial for ensuring that witnesses feel
at ease
and can provide reliable evidence to the court to enable the
court to make a finding as to the reliability of the evidence that

the witness is giving.
[27]
Importantly, if the court were to accept the argument proffered by Mr
Badenhorst that the accused knows the
identity of the witness and has
perused her statement, it would suggest that there will be very few
circumstances, if any, that
such an order would be granted especially
because in most cases, complainants know their assailants. In my
view, with the evolution
of technology, it is expected that various
criminal cases will be heard through the virtual platform in the near
future. I am fortified
in this conclusion by the recent amendment of
subsection 2(a) of
section 158
by the Criminal Law Amendment Act 12
of 2021 to provide that the subsection applies to witnesses
irrespective of whether the witness
is in or outside the Republic.
This Amendment Act also added a new sub­section
(6) to section
158 which is intended to apply to witnesses who are
outside the Republic and who give evidence by means of closed-circuit
television
or similar electronic media.
[28]
Protecting distressed adult witnesses is not unique or exclusive to
South Africa. In developed Countries,
there are laws that are
directed at protecting adult witnesses. For instance, in Canada,
section 486.2(2) of the
Criminal Code
(R.S.C, 1985, c. C-46)
permits adults who are not disabled to testify from behind a screen
or via closed circuit television but
only if the court is of the
opinion that the order is necessary to obtain a full and candid
account from the witness of the acts
complained of. For instance, in
R v Pal
[2007] B.C 21
92 (S.C), the Supreme Court of British
Columbia held that for section 486.2(2) to be used by an adult, it is
not sufficient for
the witness to satisfy the court that he or she is
fearful. It must be shown that the fear would render the witness
unable to give
a full and candid account of the acts complained of.
[29]
While in the United Kingdom, section 2(1) of the Criminal Evidence
(Witness Anonymity) Act 2008, empowers
courts to grant a witness
anonymity order, which requires appropriate measures to be taken to
preclude the disclosure of a witness’s
identity. Section
4(3)(a) of this Act contemplates that before a court may grant a
witness an anonymity order, three conditions
must be satisfied.
Firstly, the measures must be necessary to protect the witness’s
safety, the safety of another, or ‘serious
damage to property’.
Secondly, the measures must be consonant with a fair trial, and
thirdly, the order must be made if it
is ‘in the interests of
justice.
[30]    In
casu,
the witness developed PTSD from witnessing a crime
allegedly committed in her presence. She is currently three months
pregnant
and highly vulnerable. She fears for her life and that of
her family to testify in an open court and in the accused’s
presence.
She does not want to be identified. Colonel Clark reported
that there is a possibility that the witness may experience further
trauma if she testifies in the presence of the accused. Colonel Clark
further reported that the witness would be recalcitrant if
she
testifies in open court as she is deeply concerned about her safety,
and that of her mother and daughter. This evidence has
not been
challenged. The accused did not lead any evidence contradicting the
expert witness's scientific evidence.
[31]
The right of an accused person to be present in court throughout the
trial and to observe his accusers and
those who testify against him
is a fundamentally important right and should not be lightly
interfered with.
R v Pal
[2007] B.C 21
92 (S.C). However, as
previously stated, section 158 of the CPA does permit exceptions in a
number of cases. I am mindful that
the interests of the accused must
be borne in mind when it comes to whether or not closed-circuit
television ought to be used.
It must be asked whether this prejudices
the accused and, if so, whether a fair balance has been struck
between the various interests.
Section 158(4) provides that the
prosecutor and the accused have the right, by means of that
procedure, to question a witness and
observe the witness's reaction.
In my view, section 158(4) serves as a safety net for any prejudice
that may be suffered by an
accused during cross-examination. The
court, the defence, and the State will be in a position to see the
witness's reaction and
demeanour during cross-examination.
[32]
Thus, the argument that the accused wants to challenge the witness in
court through cross-examination has
no merit and is unsustainable. In
my view, this is an exercise which the accused and his legal
representative will ably exercise
even when the witness testifies
through a close circuit television.
[33]
This court has been informed that a facility is readily available in
this court for hearing the witness's
evidence through a close circuit
television. On a conspectus of all the evidence place before court, I
am of the opinion that the
jurisdictional requirements of section 153
and 158 have been satisfied. I am further of the view that for this
witness to give
a full and candid account of the acts complained of,
her evidence must be heard in camera, and her identity should not be
disclosed.
Therefore, in order to enable this witness to give her
evidence without fear of repercussions and danger to herself and her
family,
she must give her evidence through a close circuit
television. Undoubtedly, this initiative will add some measure of
protection
to her.
Order
[34]    In
the result, the following order is granted:
34.1
The application of the State to have the witness testify through a
close circuit television is hereby granted.
34.2    It
is further ordered that the evidence of the witness will be heard
behind closed doors.
34.3
The name and identity of the witness in question in respect of the
proceedings in court in terms of section
153(2) shall not be
disclosed to the public.
LEKHULENI JD
JUDGE OF THE HIGH
COURT