Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 01 April 2009
• Citation: 2009 (4) SA 222 (CC)
• Docket Number: CCT 36/08
• Hearing Date: 06 November 2008
• Counsel: HM Meintjies SC for the applicant. V Soni SC (with A Platt) for the first respondent. PPJ de Jager SC (with P van R Coetzee) for the second and third respondents. AM Skelton for the first and second amici curiae. K Pillay and E Nel for the third, fourth, fifth and seventh amici curiae. K Pillay and M Ioannou for the sixth amicus curiae.
• Court: Constitutional Court

Ngcobo J: D

Introduction

[1] Until recently, the law did not pay much attention to the stress that child complainants in sexual offence cases suffer when they testify in courts. [1] Child complainants in sexual offence cases were required to E 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 F traumatic experiences that they had gone through. Regrettably, although there were welcome exceptions, the plight of child complainants was seldom the concern of those who required them to testify or those before whom they testified.

[2] The advent of our constitutional democracy must change all of that. G Our constitutional democracy seeks to transform our legal system. Its foundational values of human dignity, the achievement of equality and the advancement of human rights and freedoms, introduce a new ethos that should permeate our legal system. Consistent with these values, s 28(2) of the Constitution requires that in all matters concerning a child, the child's best interests must be of paramount importance. [2] H Recently, the Criminal Law (Sexual Offences and Related Matters) Amendment Act [3] (the Sexual Offences Amendment Act) introduced

Ngcobo J

A 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.

[3] The central question presented in these consolidated cases is whether B the provisions of the CPA that concern the protection to be given to child complainants in criminal proceedings involving sexual offences provide protection consistently with s 28(2) of the Constitution. In particular, the question presented is whether the provisions of ss 153(3) and (5) (proceedings in camera), [5] 158(5) (the duty to give reasons for refusing to C 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 s 28(2) of the Constitution. These provisions will be referred to collectively as the invalidated provisions. This is an important constitutional D question for it concerns persons who are not parties to criminal proceedings but whose constitutional rights may be affected.

[4] There are two other equally important questions which arise from the manner in which the central question arose in these cases and the relief E 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 F 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 G law and any law or conduct that is inconsistent with it is invalid.

[5] 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 H 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

Ngcobo J

Constitution. Second, the duty of all superior courts, including this court A (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 B complainants of sexual offences appear to testify.

[6] It is these questions that we must answer.

[7] 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 C 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 D of the CPA, including ss 153, 158, 164(1) and 170A. The court eventually found that ss 153(3) and (5), 158(5), 164(1) and 170A(1) and (7) were inconsistent with s 28(2) of the Constitution. It held that the protection they provide falls short of that required by s 28(2). It accordingly declared them invalid. [11] The court also issued declaratory and supervisory orders concerning the rights of child complainants E and child witnesses.

[8] 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. F The Minister is also appealing against 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 ss 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 G invalidity in relation to ss 170A(1) and (7) and 158(5). They support the confirmation of the other orders.

[9] With this prelude, I now turn to the facts.

Factual background H

[10] 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 under way on 3 March 2006. Mr Phaswane I 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.

Ngcobo J

A [11] 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 B truth and falsehood. The child was accordingly admonished to speak the truth.

[12] 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 s 52(1) of the Criminal Law Amendment Act, [12] the court referred the case to the C High Court in Pretoria for sentence in terms of s 52 of the Act. [13] In terms of s 52(1) an accused who is convicted in the regional court of an offence for which a minimum of life imprisonment is prescribed by

Ngcobo J

s 51 of the Act read with Part 1 of Schedule 2 must be committed to the A High Court for sentence. The rape of a child under the age of 16 is such an offence.

[13] 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 under way on 19 April 2006. B Mr Mokoena also pleaded not guilty. The case was finalised on 7 July 2006 when Mr Mokoena was convicted of rape.

[14] Before the commencement of the trial, the State made an application in terms of s 170A(1) to lead the evidence of the child complainant with the aid of an intermediary. In support of the application, the State C 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, D 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.

[15] Mr Mokoena's case too was referred to the High Court in Pretoria for sentence. E

[16] 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...