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

• Jurisdiction: South Africa

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others
2009 (4) SA 222 (CC)

2009 (4) SA p222

Citation	2009 (4) SA 222 (CC)
Case No	CCT 36/08
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	November 6, 2008
Judgment	April 1, 2009
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.

Flynote : Sleutelwoorde B

C Constitutional practice — Courts — Constitutional Court — Powers — Declaration of invalidity — Act of Parliament — Constitutional Court having discretion as to whether to make declaration — To consider practical effect of order — To have due regard to interests of justice — High Court having unnecessarily declared certain provisions of Act unconstitutional — Declaration of validity required to avoid legal uncertainty — So ordered — Constitution, s 172(2).

D Constitutional practice — Courts — Constitutional Court — Powers — Mootness — Discretion of CC to decide issue even if no longer presenting existing or live controversy — Discretion to be exercised according to interests of justice — Order to have practical effect either on parties or on others.

E Constitutional law — Separation of powers — Between judiciary and executive — High Court making certain declaratory and supervisory orders concerning rights of child complainants and child witnesses in criminal proceedings — As framed, orders effectively meaning court taking part in F formulation and adoption of departmental policy — Orders being in conflict with principle of separation of powers — Orders set aside.

Constitutional law — Legislation — Validity — Criminal Procedure Act 51 of 1977, ss 153(3), 153(5), 158(5), 164(1), 170A(1) and 170A(7) — Protection of child complainants in sexual offence cases — Impugned provisions G providing protection to child complainants of sexual offences consistent with s 28(2) of Constitution, namely with principle that child's best interests being of paramount importance in all matters concerning child — Accordingly, sections being constitutional and valid.

Constitutional law — Human rights — Rights of children — Child witnesses and H complainants in criminal trials — Appointment of intermediaries — State not bearing onus of proving need for appointment of intermediary — Court must determine whether in child's best interests to appoint intermediary — Criminal Procedure Act 51 of 1977, s 170A(1) read with s 170A(3).

Constitutional law — Human rights — Rights of children — Child witnesses and I complainants in criminal trials — Appointment of intermediaries — Discretion of court — Constitutionality — Discretion to order appointment of intermediary — Applicable provision of CPA, properly construed, requiring court to enquire into desirability of appointing intermediary in every trial in which child to testify — Best interests of child witnesses ensured — Provision not unconstitutional — Criminal Procedure Act 51 of 1977, s 170A(1) read with J Constitution, s 28(2).

2009 (4) SA p223

Constitutional law — Human rights — Rights of children — Child witnesses and A complainants in criminal trials — Appointment of intermediaries — Discretion of court — Constitutionality — Discretion to refuse appointment of intermediary — Applicable provision of CPA allowing judicial officer, in exercise of judicial discretion, to assess individual needs, wishes and feelings of each child, in conformity with principle that best interests of child being of paramount importance in matters concerning child — Provision not B unconstitutional — Criminal Procedure Act 51 of 1977, s 170A(7) read with Constitution, s 28(2).

Constitutional law — Human rights — Rights of children — Child witnesses and complainants in criminal trials — Appointment of intermediaries — Requirement that court must provide reasons for refusing application or request by C prosecutor to appoint intermediary in respect of child complainants under 14 — Constitutionality — Applicable provision of CPA, properly construed, requiring court to give reasons for refusing to appoint intermediary in respect of children under 18 — Distinction being that, in case of children under 14, reasons to be given 'immediately upon refusal' and, in case of children over 14, reasons may be given at later stage — Such distinction D being neither irrational nor unfair — Provision not unconstitutional — Criminal Procedure Act 51 of 1977, s 170A(7) read with Constitution, s 28(2).

Constitutional law — Human rights — Rights of children — Child witnesses, child complainants and child accused in criminal trials — Power of court to order that proceedings be held in camera — Sexual offence cases — Child complainants and child accused — In case of child complainant, proceedings E to be held in camera for duration of child's evidence — In case of child accused, proceedings to be held in camera for duration of proceedings — Constitutionality — Differentiation between child complainant and child accused rationally related to duration of time that each being required to spend in proceedings — Differentiation not amounting to unfair discrimination F — Provisions not unconstitutional — Criminal Procedure Act 51 of 1977, s 153(3) — (5) read with Constitution, s 28.

Constitutional law — Human rights — Rights of children — Child witnesses, child complainants and child accused in criminal trials — Power of court to order that proceedings be held in camera — Sexual offence cases — In case of child complainant, proceedings to be held in camera for duration of G child's evidence — In case of child witness, court having discretion to order that proceedings be held in camera — Constitutionality — Given wide-ranging nature of evidence and ages of child witnesses, desirable that courts should have discretion, in each case, to assess whether proceedings should be held in camera or whether child should testify in camera — Differentiation between child complainant and child witness rational — Not H amounting to unfair discrimination — Provisions not unconstitutional — Criminal Procedure Act 51 of 1977, s 153(3) - (5) read with Constitution, s 28.

Constitutional law — Human rights — Rights of children — Child witnesses and complainants in criminal trials — Evidence by means of closed-circuit I television or similar electronic media — Applicable provision of CPA requiring court to provide reasons for any refusal of application to allow child complainant under 14 to testify by means of closed-circuit television or similar electronic media — Constitutionality — Provision to be construed as meaning that court to give reasons for refusing to allow use of CCTV in respect of children under 18 — Distinction being that, in case of children J

2009 (4) SA p224

A under 14, reasons to be given 'immediately upon refusal' and, in case of children over 14, reasons may be given at later stage — Such distinction being neither irrational nor unfair — Provision not unconstitutional — Criminal Procedure Act 51 of 1977, s 158(5) read with Constitution, s 28.

Constitutional law — Human rights — Rights of children — Child witnesses and B complainants in criminal trials — Evidence — Admonition to speak truth — Constitutionality — Applicable provision of CPA not requiring knowledge of abstract concepts of truth and falsehood but that child will speak truth — Evidence of child incapable of understanding what it means to tell truth being unreliable — Admission of such evidence would undermine accused's right to fair trial — Provision constitutional and valid — Criminal C Procedure Act 51 of 1977, s 164(1) read with Constitution, s 28(2).

Court — Constitutional Court — Duties — To investigate failure to implement provisions of CPA aimed at protecting child complainants in sexual offence cases — Concerns raised requiring urgent attention — In present exceptional circumstances, appropriate for court to call for information as first D step in supervisory process — Criminal Procedure Act 51 of 1977.

Court — High Court — Powers — To raise constitutional issue mero motu — High Court having power mero motu to raise constitutional question where question arising on facts and where determination of question either necessary for proper determination of case before it or necessary in E interests of justice.

Headnote : Kopnota

The second and third respondents were convicted in their respective regional magistrates' court's proceedings of the rape of girls under the age of 16 and referred to the High Court for sentencing in terms of the minimum F sentence legislation. At the second respondent's trial, the child complainant gave her evidence in camera. She did not testify under oath but was admonished to speak the truth. At the third respondent's trial, the child complainant testified through an intermediary. At the consolidated sentencing proceedings, the High Court mero motu raised the constitutional validity of certain provisions of the Criminal Procedure Act 51 of 1977 G (CPA) and, after hearing argument, found that ss 153(3) and 153(5), 158(5), 164(1), 170A(1) and 170A(7) were inconsistent with s 28(2) of the Constitution, 1996, and were hence invalid.

In addition to its declarations of constitutional invalidity, the High Court made certain declaratory and supervisory orders concerning the rights of child H complainants and child witnesses. Subsequent to the referral of the orders of invalidity to the Constitutional Court (CC) for...