S v Mokoena; S v Phaswane

• Jurisdiction: South Africa
• Citation: 2008 (2) SACR 216 (T)

S v Mokoena;
S v Phaswane
2008 (2) SACR 216 (T)

2008 (2) SACR p216

Citation	2008 (2) SACR 216 (T)
Case No	CC 7/2007 and CC 192/2007
Court	Transvaal Provincial Division
Judge	Bertelsmann J
Heard	November 15-30, 2007; December 1-3, 2007
Judgment	May 12, 2008

Flynote : Sleutelwoorde

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 — Section 170A(1) placing limitation on best interests of child in requiring child to be exposed to 'undue' stress and suffering before intermediary 'may' be appointed — Such limitation neither rational nor justifiable — Section unconstitutional — Constitution of Republic H of South Africa, 1996, s 28(2) — Section 170A(1) should be reworded accordingly.

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 — Power of court to refuse appointment I of intermediary in terms of s 170A(7) of Act — Section 170A(7) inconsistent with s 28(2) of Constitution of Republic of South Africa, 1996, and therefore unconstitutional.

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

2008 (2) SACR p217

that proceedings be held in camera (s 153(3) and (5)), but in case of child A accused court 'shall' order proceedings to be held in camera (s 153(4)) — No rational justification for such differentiation — Section 153(3) and (5) accordingly unconstitutional — Word 'must' should replace 'may' in such subsections and words 'at the request of his parent or guardian' in s 153(3) should be regarded as pro non scripto.

Fundamental rights — Rights of children — Child witnesses and victims in B criminal trials — Evidence by means of closed circuit television or similar electronic media — Criminal Procedure Act 51 of 1977, s 158 — Section 158(5) providing that court to provide reasons for any refusal of application to allow child complainant below age of 14 years to testify by means of closed circuit television or similar electronic media — Whether child over or under age of C 14 years, hurt, trauma and stress experienced by child facing alleged attacker or rapist when giving evidence — No reason why court should not consider use of electronic media and closed circuit television for all children in all cases where these aids exist — Section 158(5) is in its present form irrational and discriminatory and therefore unconstitutional.

Fundamental rights — Rights of children — Child witnesses and victims in D criminal trials — Proviso to s 164(1) of Criminal Procedure Act 51 of 1977, as amended by Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, preventing children who cannot convey appreciation of abstract concepts of truth and falsehood to court from testifying — Proviso in conflict with Constitution because it fails to protect paramountcy of children's interests, as entrenched in s 28(2) of the E Constitution of Republic of South Africa, 1996 — Such witness may nonetheless be perfectly able to convey experience that has led to him/her becoming involved in criminal trial with help of devices such as anatomical dolls — Proviso therefore unconstitutional.

Headnote : Kopnota

Section 170A(1) of the Criminal Procedure Act 51 of 1977 (the Act), providing F for the appointment of intermediaries for witnesses under the age of 18 years, is unconstitutional in that it grants a discretion to the trial court to appoint or not to appoint an intermediary when a child witness is to be called in a criminal trial. The threshold provision of the section that the child victim should be exposed to 'undue' stress and suffering before the services of an intermediary may be considered places a limitation upon G the best interests of the child that is neither rational nor justifiable when weighed up against the legitimate concerns of the accused, the court and the public interest. Having regard to the provision of s 28(2) of the Constitution of the Republic of South Africa, 1996, the child is entitled as of right to a procedure that eliminates as much as possible of the anguish H that accompanies the necessity of having to relive the horror of abuse, violation, rape, assault or deprivation that the child experienced when he or she became a victim or witness. Section 170A(1) is inconsistent with s 28(2) of the Constitution. The section should read as follows: 'Subject to subsection (4), whenever criminal proceedings are pending before any court in which any witness under the biological or mental age of eighteen years is I to testify, the court shall appoint a competent person as an intermediary for each witness under the biological age of 18 years in order to enable such witness to give his or her evidence through that intermediary as contemplated in this section, unless there are cogent reasons not to appoint such intermediary, in which event the court shall place such reasons on record before the commencement of the proceedings; and the court may appoint J

2008 (2) SACR p218

A a competent person for a witness under the mental age of eighteen years in order to give his or her evidence through that intermediary.' (Paragraphs [79], [82] and [185] at 237b-d, 237f and 250h-251a.)

Section 170A(7) of the Criminal Procedure Act, which contemplates that the court might refuse to appoint an intermediary even in the case of a very young child victim about to be called as a complainant witness, is B unconstitutional. It is difficult to imagine a case where the interests of justice would not best be served by the appointment of an intermediary to a child victim of such tender age, nor is it easy to imagine grounds upon which such a request might be dismissed, always provided that an intermediary is available at all. Section 170A(7) is unconstitutional because it is inconsistent with s 28(2) of the Constitution. (Paragraphs [76], [81] and C [82] at 236g-h, 237e and 237f.)

Section 153(3) of the Criminal Procedure Act, where it provides that in the case of minors the court may 'at the request of his parent or guardian' 'direct that any person whose presence is not necessary at the proceedings or any person or class of persons mentioned in the request, shall not be present at the proceedings', is unconstitutional. It is unconstitutional because s D 153(4) provided that a court 'shall' sit in camera where the accused is under the age of 18 years and there is no rational justification for the differentiation between a child accused and child victims and child witnesses. The word 'must' should be read in after the words 'if he is a minor' in s 153(3) while the words 'at the request of his parent or guardian' should be regarded as pro non scripto. This reasoning applies in equal measure to s E 153(5), which vests the court with the discretion (may) to direct that the proceedings should proceed in camera if a child witness is called to the witness stand, again subject to the court's power to allow the presence of those persons who are either necessary for the proceedings or are allowed by the court to remain in the forum. There is no rational yardstick by which a differentiation between this subsection and ss (3) on the one hand, and F ss (4) on the other, could be justified. Whether a child witness has been subpoenaed in terms of ss (5) and is required to attend court because he or she is a complainant or witness as intended by ss (3) in respect of a sexual offence, the protection against having to appear in open court with all the possible attendant stress and potentially negative or embarrassing publicity should be the same as that which the child accused enjoys. (Paragraphs G [104] - [108], [109], [111] and [185] at 240e-241d, 241e-g, 241h-i and 251b.)

Section 158 of the Criminal Procedure Act, which makes provision for witnesses or an accused to give evidence by means of closed circuit television or similar electronic media, has been amended by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 by the addition of ss (5), which compels the court to provide reasons for any refusal of an H application to allow a child complainant below the age of 14 years to testify by means of electronic media or closed circuit television. It is difficult to understand why the legislature should have decided to discriminate between children under the age of 14 and those above that age. Children are obviously under pressure if they have to testify as complainants and there is no apparent rational basis for suggesting that the hurt, trauma and stress I experienced by a 13 year old who has to face an alleged attacker or rapist are in any way less than that suffered by a 17 year old. There is no reason why the court should not be obliged to consider the use of electronic media and closed circuit television for all children in all cases where these aids do exist. Section 158(5) is in its present form irrational and discriminatory and therefore unconstitutional. (Paragraphs [115], [120] - [124] and [126] J at 242c-d, 242g-243b and 243b-c, paraphrased.)

2008 (2) SACR p219

The proviso to s 164(1) of the Criminal Procedure Act, as amended by Act 32 A of 2007, that prevents children who cannot convey an appreciation of the abstract concepts of truth and falsehood to the court from testifying is in conflict with the Constitution because it fails to protect the paramountcy of children's interests, as entrenched in s 28(2) of the Constitution. Section 164(1), even...