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 (2) SACR 130 (CC)

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Citation	2009 (2) SACR 130 (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.; PJJ de Jager SC (with P van R Coetzee (attorney)) for the second and third respondents, instructed by the Legal Aid Board, Pretoria.; 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

Fundamental rights — Rights of children — Child witnesses and victims in C criminal trials — Appointment of intermediaries in terms of s 170A(1) of Criminal Procedure Act 51 of 1977 read with s 170A(3) — 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).

D Fundamental rights — Rights of children — Child witnesses and victims in criminal trials — Appointment of intermediaries in terms of s 170A(1) of Criminal Procedure Act 51 of 1977 read with Constitution, s 28(2) — 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 E which child to testify — Best interests of child witnesses ensured — Provision not unconstitutional.

Fundamental rights — Rights of children — Child witnesses and victims in criminal trials — Appointment of intermediaries in terms of s 170A(1) of Criminal Procedure Act 51 of 1977 read with s 170A(7) and Constitution, s 28(2) — Discretion of court — Constitutionality — Discretion to refuse F 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 unconstitutional.

G Fundamental rights — Rights of children — Child witnesses and victims in criminal trials — Appointment of intermediaries in terms of s 170A(1) of Criminal Procedure Act 51 of 1977 read with s 170A(7) and Constitution, s 28(2) — Requirement that court must provide reasons for refusing application or request by prosecutor to appoint intermediary in respect of child complainants under age of 14 — Constitutionality — Applicable provision of H CPA, properly construed, requiring court to give reasons for refusing to appoint intermediary in respect of children below age of 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 being neither irrational nor unfair — Provision I not unconstitutional.

Fundamental rights — Rights of children — Child witnesses, child victims and child accused in criminal trials — Power of court in terms of ss 153(3), (4) and (5) of Criminal Procedure Act 51 of 1977 read with Constitution, s 28, to order that proceedings be held in camera — In case of child victim, proceedings to be held in camera for duration of child's evidence — In case J of child accused, proceedings to be held in camera for duration of

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proceedings — Constitutionality — Differentiation between child victim and A child accused rationally related to duration of time that each being required to spend in proceedings — Differentiation not amounting to unfair discrimination — Provisions not unconstitutional.

Fundamental rights — Rights of children — Child witnesses, child victims and child accused in criminal trials — Power of court in terms of ss 153(3), (4) B and (5) of Criminal Procedure Act 51 of 1977 read with Constitution, s 28, to order that proceedings be held in camera — In case of child victim, proceedings to be held in camera for duration of child's evidence — In case of child witness, court having discretion to order that proceedings to 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 C whether child should testify in camera — Differentiation between child victim and child witness rational — Not amounting to unfair discrimination — Provisions not unconstitutional.

Fundamental rights — Rights of children — Child witnesses and victims in criminal trials — Evidence by means of closed circuit television or similar D electronic media — Criminal Procedure Act 51 of 1977, s 158(5) read with Constitution, s 28 — Section of CPA requiring court to provide reasons for any refusal of application to allow child victim below the age of 14 years 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 below age E of 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 being neither irrational nor unfair — Provision not unconstitutional.

Fundamental rights — Rights of children — Child witnesses and victims in F criminal trials — Proviso to s 164(1) of Criminal Procedure Act 51 of 1977, read with Constitution, s 28(2) — Admonition to speak truth — Constitutionality — Section 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 G constitutional and valid — Criminal Procedure Act 51 of 1977, s 164(1) read with Constitution, s 28(2).

Headnote : Kopnota

The second and third respondents were convicted in their respective regional magistrates' courts' proceedings of the rape of girls under the age of 16 and referred to the High Court for sentencing in terms of the minimum- H 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 I 1977 (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 complainants and child witnesses. Subsequent to the referral of the orders J

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A of invalidity to the Constitutional Court (CC) for confirmation, the High Court confirmed the third respondent's conviction and postponed the matter for sentencing. Before the CC, all of the parties approached the matter on the basis that the High Court was entitled to raise a constitutional issue mero motu.

The applicant (the DPP) challenged the constitutionality of s 170A on the basis B of its inconsistent application by the courts. The Minister opposed the confirmation of the orders of invalidity and appealed against both the orders of invalidity and the declaratory and supervisory orders. He appealed against the declaratory orders on the ground that they were in breach of the principle of separation of powers.

Raising constitutional issue mero motu

C Held, that a High Court could, of its own accord, raise and decide a constitutional issue where (a) the constitutional question arose on the facts; and (b) a decision on the constitutional question was necessary for a proper determination of the case before it; or it was in the interests of justice. D (Paragraph [43] at 151d.)

Held, that, in the case of the third respondent, the constitutional issues raised and decided by the High Court did not arise on the facts. Any doubt as to whether it was appropriate for the High Court to have raised and decided the constitutional issues was immediately removed by the confirmation of the third respondent's conviction prior to the finalisation of the confirmation E proceedings in the CC. (Paragraphs [44]–[45] at 151f and 152c.)

Held, further, that, having regard to the fact that a decision by the High Court on the constitutional issues had been bound to result in further delays in the third respondent's case, which had already been significantly delayed, it could not be said that it had been in the interests of justice for the High F Court, of its own accord, to raise and decide the constitutional issues. (Paragraph [47] at 152g–h.)

Held, that, in the case of the second respondent, the only issue that the High Court could have raised on the facts was the constitutional validity of ss 170A(1) and 170A(7). (Paragraph [50] at 153d.)

Held, in relation to ss 153(3), 158(5), 164(1) and 170A(7), that, since these G sections were in bill form at the time the High Court decided the matter, that court had not...