Recent Case: Constitutional Law

• Jurisdiction: South Africa
• Author: Warren Freedman
• Date: 16 August 2019
• Pages: 299-317
• Published date: 16 August 2019
• Citation: (2010) 23 SACJ 299

Constitutional Law

WARREN FREEDMAN

University of KwaZulu-Natal, Pietermaritzburg

The rights of a child – The right to testify through an

intermediary

Introduction

In Director of Public Prosecutions, Transvaal v Minister for Justice

and Constitutional Development2009 (2) SACR 130 (CC), two men

(Messrs Phaswane and Mokoena) were convicted of rape in separate

trials in the regional magistrates’ court. The victims in both cases were

children. After each man had been convicted, his case was referred to

the Pretoria High Court for sentencing in terms of s 52 of the Criminal

Law Amendment Act 105 of 1997.

In the Pretoria High Court, the presiding judge, Bertelsmann J,

consolidated both cases and mero motu proceeded to consider the

constitutional validity of certain provisions of the Criminal Procedure

Act 51 of 1977, including ss 153, 158, 164(1) and 170A, all of which are

concerned with the protection that must be given to child complain-

ants when they give evidence in criminal proceedings involving sexual

abuse. After carefully examining these provisions, the Court declared

ss 153(3) and (5); 158(5); 164(1); and 170(A)(1) and 170A(7) of the

Criminal Procedure Act invalid on the grounds that they infringed the

‘best interests’ of child complainants as guaranteed in s 28(2) of the

Constitution. The Court then referred its declaration of invalidity to

the Constitutional Court for conf‌irmation in terms of s 172(2)(a) of the

Constitution. The Constitutional Court, however, refused to do so.

In arriving at its decision, the Constitutional Court (per Ngcobo J;

Langa CJ, Moseneke DCJ, Mokgoro,O’Regan, Sachs,Van der West-

huizen and Yacoob JJ concurring) dealt with a wide range of issues.

Perhaps the most signif‌icant of these was the constitutional validity

of s 170A(1) of the Criminal Procedure Act. This is because s 170A(1),

which made international legal history when it was f‌irst enacted, has

been the subject of a considerable amount of academic debate (see

for example S E van der Merwe ‘Cross-examination of the (sexually-

abused) child witness in a constitutionalized adversarial trial system:

is the South African intermediary the solution?’ (1995) Obiter 208; PJ

Schwikkard ‘The abused child: A few rules of evidence considered’

1996 Acta Juridica 148; F Coughlan and R Jarman ‘Can the intermedi-

ary system work for child victims of sexual abuse?’ (2002) Families

Recent cases 299

(2010) 23 SACJ 299

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in Society 541; G Jonker and R Swanzen ‘Intermediary services for

child witnesses testifying in the South African Criminal Courts’ (2007)

International Journal on Human Rights 91).

Section 170A(1)

Section 170A(1) of the Criminal Procedure Act provides that whenever

criminal proceedings are pending and it appears to the court that a

child witness would be exposed to ‘undue mental stress or suffering’

by testifying at such proceedings, then the court may appoint a compe-

tent person as an intermediary for that witness. Once an intermediary

has been appointed, the section goes on to provide, the child witness

will give his or her evidence through that intermediary. Although the

intermediary system introduced by s 170A(1) is intended to protect

children from the trauma they may experience while giving evidence

in open court, it has been criticized by child rights’ advocates on the

grounds that it infringes the ‘best interests’ of child complainants as

guaranteed in s 28(2) of the Constitution. This criticism is based largely

on the following three arguments: First, that s 170A(1) only comes

into operation once the prosecutor has made an application in terms

of the section for the appointment of an intermediary. If the prosecu-

tor fails to make such an application and proceeds to calls the child

as a witness, the section does not come into operation. Second, that

even if the prosecutor makes an application in terms of s 170A(1), the

appointment of an intermediary is not automatic. This is because the

section confers a discretion on the court as to whether an intermedi-

ary should be appointed. Unfortunately, the courts have not applied

this discretion consistently and as a result some child witnesses are

not being given the same level of protection as others. Third, that the

phrase ‘undue mental stress or suffering’ is not def‌ined in the Crimi-

nal Procedure Act and the courts have, therefore, been compelled to

adopt their own interpretations. The manner in which the courts have

gone about interpreting this phrase, however, has not been consistent,

with some of them adopting a very narrow approach. In terms of this

narrow approach the courts have held that they may only appoint

an intermediary after the child witness has already been exposed to

undue stress or suffering.

In order to properly address these arguments and thus to determine

whether s 170A(1) did infringe the best interests of child complainants,

Ngcobo J explained in his judgment, the Constitutional Court had to

consider the following questions (at para 92):

1. What is the object of s 170A(1)?

2. What does the phrase ‘undue mental stress’ mean?

300 SACJ.(2010) 2

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