Abstract

Keywords

Protection of child victims and child witnesses; constitutional protection of child victims and child witnesses; children's rights; State obligations; section 28(1) of the Constitution of South Africa; section 28 (1)(d) of the Constitution of South Africa; section 170A of the Criminal Procedure Act; intermediary; secondary victimisation.

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1 Introduction

Children's rights in South Africa have undergone a significant change since 1994. This can be attributed inter alia to the enactment of a democratic Constitutional legal order, as the principles encompassed in both the Interim Constitution of the Republic of South Africa1 and later the final Constitution of the Republic of South Africa, 1996 (the Constitution) enhance the level of protection afforded to children in South Africa.2 This also applies to the rights of child victims and child witnesses3 in the criminal justice system.

Conversely, present-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime. The incidence of child rape and sexual assault upon minors, for example, has reached epidemic proportions.4 Disturbingly, these studies also indicate a trend

towards a decrease in the age of these victims, while the use of brute force directed against them is escalating.5 Population-based prevalence studies show that the most common forms of violence against children reported in South Africa are physical and sexual violence in the home and community.6 In the event that the offenders are apprehended, these child victims and witnesses have to undergo the daunting experience of appearing in court to face the perpetrators. Statistics indicate that a growing number of the victims and witnesses who have to appear in court to testify about these crimes are therefore children.7

Owing to their particular vulnerability, the protection of child victims and child witnesses in the criminal justice system is thus of vital importance. The purpose of this discussion of South Africa's constitutional obligations is to determine whether the current protection afforded to child victims and child witnesses while testifying in criminal proceedings in South Africa is in line with South Africa's constitutional obligations. Strong emphasis will therefore

be placed on the constitutional obligations relating to the protection of child victims and child witnesses while testifying in criminal proceedings.

The South African Constitution incorporates an extensive Bill of Rights which has been internationally acclaimed as a good example of a Constitution that provides for the advancement and protection of children's rights.8 In this regard the Bill of Rights includes a special section or children's clause, namely section 28, which affords specific protection to children.9 In so doing, the Constitution recognises that children are particularly vulnerable to violations of their rights and are in need of unique and distinct protection. Section 28 gives effect to the recognition of this vulnerability and embodies a dedicated commitment to the realisation of children's rights.10

Children are also included under "all people" in South Africa. They are thus afforded all the rights in the Bill of Rights11 except for those rights that are expressly restricted to adults, such as the right to vote and to seek public office.12 The rights in the Bill of Rights are repeated in section 28 to some degree. These rights therefore provide the context for the rights contained

in section 28.13 Children are not only protected in general as "persons or people" in the Bill of Rights but are also specifically protected in terms of section 28.14

In order to throw light on the impact of the Bill of Rights on child victims and child witnesses in the criminal justice system, a general overview of the constitutional rights in the Bill of Rights relating to child victims and child witnesses will be given, whereafter the specific constitutional rights of child victims and child witnesses in section 28 of the Bill of Rights will be discussed.

2 The rights in the Bill of Rights as they relate to child victims and child witnesses within the criminal justice system

The Bill of Rights enshrines the fundamental rights of all people in South Africa.15 These rights are not mere guidelines; on the contrary the State is obliged "to respect, promote and fulfil" these rights. The Bill of Rights places an unambiguous obligation on the State with regard to the promotion, protection and realisation of children's rights.16 These include the rights to equality;17 dignity;18 life;19 freedom and security of the person;20 individual autonomy construed from the rights to privacy;21 freedom of religion;22 freedom of expression;23 freedom of association;24 property;25 housing;26 health care services; food, water and social security;27 education;28 just administrative action;29 and the rights of arrested, detained and accused persons to a range of protections.30 The rights that are the most important

or have the most significant impact on the child victim and child witness are the rights to equality, human dignity, freedom and security of the person (specifically the right to be free from all forms of violence) and the right to individual autonomy (specifically the right to privacy and freedom of expression). These rights are discussed separately below.

2.1 The rights to equality, human dignity, and freedom and security of the person

Section 9 of the Constitution affords everyone the right to equality, and section 9(1) guarantees the right to equality before the law and equal protection and benefit of the law. Section 9(3) and 9(4) describes how this equality should be realised, namely by prohibiting unfair discrimination by the state and by private entities on a non-exclusive list of grounds. One of the grounds listed in section 9(3) is "age". The effect of this is that any distinction between children and others based on their age will be scrutinised in terms of the Constitution to determine whether it complies with the prohibition on unfair discrimination.31 In Christian Lawyers Association v Minister of Health32 the High Court considered age as a ground for discrimination. In the case in question the applicants challenged the validity of the provisions of the Choice on Termination of Pregnancy Act,33 on the ground that girls under the age of 18 years should not be able to choose to terminate their pregnancies without parental consent as they were not capable of making the decision alone. The court rejected this challenge and concluded that the Act made informed consent, and not age, the basis for its regulation of access to termination of pregnancy. Mojapelo J emphasised that everyone is equal before the law and has the right to equal protection and benefit of the law and that any distinction between women on the ground of age would infringe these rights.34

The Constitutional Court has developed a detailed test to be followed when confronted with claims of unfair discrimination. This test assists the court in its decision on whether the state or a private party has unfairly discriminated against any person. The test was first set out in Harksen v Lane.35 In

essence, the test entails that a preliminary enquiry must be conducted to establish whether the provision or conduct differentiates between people or categories of people. This is a threshold test in that if there is no differentiation then there can be no question of a violation of section 9(1). If a provision or conduct does differentiate between people or categories of people, a two-stage analysis must follow. The first stage concerns the question whether the differentiation amounts to discrimination. The test here is whether the law or conduct has a rational basis. This is the case where the differentiation bears a rational relation to a legitimate government purpose. If the answer is no, the law or conduct violates section 9(1) and fails at the first stage. If, however, the differentiation is shown to be rational the second stage of the enquiry is activated, namely whether the differentiation, even if it is rational, nevertheless amounts to unfair discrimination under section 9(3) or 9(4).36 If the discrimination is on a specified ground, it would be presumed to be unfair. If the discrimination occurs on an unspecified ground the complainant will have to establish that the discrimination was unfair.37

If the discrimination is found to be unfair a court will proceed to the final stage of the enquiry as to whether the provision can be justified under

section 36 of the Constitution, the limitation clause.38 This final stage, according to the Constitutional Court, "involve[s] a weighing of the purpose and effect of the provision in question and a determination as to the proportionality thereof in relation to the extent of its infringement of equality".39 However, this stage applies to discrimination in terms of law of general application only, since it is only such discrimination that can be justified under the limitation clause.40

An evidentiary rule that severely impacts on child victims and child witnesses is the cautionary rule in relation to children's testimony. This rule stems from the presiding officer’s practice of warning the jury against certain kinds of witnesses, notably accomplices, complainants in sexual cases, and young witnesses. The cautionary rule originated from the notion that the evidence of these witnesses could not safely be relied upon without some kind of corroboration in the form of other evidence confirming its trustworthiness. This rule differentiates between children and other witnesses on the grounds of age.41

In Director of Public Prosecutions v S42 the court followed the approach of S v Jackson43 and, referring to trends in countries such as Canada, Ireland, the United Kingdom, Australia and New Zealand, held that the proper approach was not to insist on the application of the cautionary rule as though it was a matter of rote, but to consider each case on its own merits. Although the evidence in a particular case might call for a cautionary approach, this was not a general rule. The court stressed that it could not be said that the evidence of children, in sexual and other cases, where they were sole witnesses, obliged the court to apply the cautionary rules before a conviction could take place.44 What was required of the State was to prove the accused's guilt beyond all reasonable doubt. This might require the court to apply the cautionary rule.45

Despite what appeared to be the application of a more liberal approach by the judiciary, case law suggests otherwise.46 In the case of S v Hanekom47 the magistrate was criticised for failing to give sufficient weight to the two cautionary rules applicable to the case (the complainant was both a single witness and a child) and for failing to apply them with the degree of attention to detail demanded by the particular circumstances of the case. According to Saner AJ the magistrate had merely paid lip service to the cautionary rules.48 In evaluating the matter, the court referred to R v Manda49 and S v Viveiros,50 stating that because of the potentially unreliable and untrustworthy nature of such evidence, it fully intended to heed the warning against accepting the evidence of children. According to the judge, the court must have proper regard to the danger of an uncritical acceptance of the evidence of both a single witness and a child witness.51 In the case of S v Haupt52 (the complainant in the case and also the main witness for the state, was a fifteen year old girl) the High Court highlighted that as the state had relied on the complainant's evidence it was imperative for her testimony to be clear and reliable in all material respects.53 The court found that in casu this was not the case. The court furthermore stated that the trial court had not applied the cautionary rules adequately in evaluating the complainant's evidence, thereby constituting a misdirection.54

It is unsurprising that the rule has its critics. Whitear-Nel55 expresses her concern, and justly so, over the fact that the court in the Hanekom case did not refer to recent research in the area of child psychology and development, which shows that children's ability to give reliable evidence has been greatly underestimated.56 Schwikkard likewise points out that the trend internationally has been to abolish this cautionary rule.57 She furthermore stresses that as the rule is based on discredited beliefs, a strong argument can be made that, just as the cautionary rule applicable to complainants in sexual cases was found to be irrational and based on stereotyped notions and hence abolished, so too should the cautionary rule applicable to children be abolished.58 Schwikkard submits, which submission is supported by the writer hereof, that in the absence of a clear

rationale it becomes difficult to justify the cautionary rule's inconsistency with a constitutional commitment to equality.59

It should be noted that this rule also differentiates between children in sexual cases and children in other criminal cases. Section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act60 provides that a court may not treat the evidence of a complainant in a sexual offence with caution on account of the nature of the offence. In S v M61 the court held that the approach applied in S v Jackson62 also applied to all cases in which an act of a sexual nature was an element, and thus also to the evidence of children.

In the recent case Levenstein v Estate of the Late Sidney Lewis Frankel63 the Constitutional Court handed down judgment in an application for the confirmation of an order of constitutional invalidity made by the High Court. The High Court declared section 18 of the Criminal Procedure Act64 to be inconsistent with the Constitution and invalid to the extent that it bars, in all circumstances, the right to institute a criminal prosecution for all sexual offences, other than rape or compelled rape, trafficking persons for sexual purposes and using a child or person who is mentally disabled for pornographic purposes, after the lapse of a period of 20 years from the time when the offence was committed.65

In a unanimous judgment, the Constitutional Court held that the primary rationale for the distinction contemplated in section 18 is the perception that certain sexual offences are more serious than others.66 The Constitutional Court acknowledged that the survivors of sexual assault face similar personal, social and structural impediments when reporting these offences and that the harm caused by different sexual offences is significantly similar, regardless of whether the harm is the consequence of rape or other forms of sexual assault.67 The Constitutional Court furthermore pointed out that the effect of section 18 is that it over-emphasises the significance of the nature of the offence68 at the expense of the harm it causes to survivors thereof, and therefore fails to serve as a mechanism to protect and advance

the interests of the survivors.69 In addition it penalises a complainant by preventing him or her from pursuing a charge, where the delay is caused by his or her inability to act, even though a reasonable explanation may exist for the delay.70 Lastly, the Constitutional Court held that section 18 undermines the state's efforts to comply with international obligations, such as the Convention on the Elimination of all Forms of Discrimination Against Women and the Convention on the Rights of the Child, which impose a duty on the state to prohibit all gender-based discrimination.71 The Constitutional Court consequently confirmed the High Court's order that section 18 is irrational and arbitrary, and therefore unconstitutional, insofar as it does not afford the survivors of sexual assault other than rape or compelled rape the right to pursue a charge after the lapse of 20 years from the time the offence was committed.72 The Court accordingly suspended the declaration of invalidity for a period of 24 months to allow Parliament to cure the constitutional defect.73

In the light of the dictum of Levenstein v Estate of the Late Sidney Lewis Frankel74 it is submitted by the writer hereof that to differentiate between the application of the cautionary rule with regard to children in sexual cases and children in other criminal cases (on the ground of the nature of the offence) may likewise be irrational and arbitrary, and therefore unconstitutional. In L v Frankel75 the High Court with reference to the expert report of Higgings76 highlighted that to have regard to the frequency and severity of child abuse may be more useful in determining the experience of trauma than the classification of the type of abuse. The abolition of the cautionary rule as a rule of general application thus seems fitting.

In Centre for Child Law v Media 24 Limited77 the Supreme Court of Appeal inter alia handed down judgment in an application for the confirmation of an order of constitutional invalidity made by the High Court. The High Court declared section 154(3) of the Criminal Procedure Act to be inconsistent with the Constitution and invalid to the extent that it fails to confer protection

on victims of crime who are under the age of 18 years.78 While section 154(3) of the Criminal Procedure Act affords anonymity to an accused and a witness at criminal proceedings who are under the age of 18 years, similar protection is not offered to children under the age of 18 years who are the victims of a crime.

The Supreme Court of Appeal concurred with the High Court and pointed out that the purpose of the limitation on the disclosure of any information which reveals or may reveal the identity of a victim is twofold. Firstly, as in the cases of an accused and a witness under the age of 18 years, to protect children who are victims of crime from the glare of publicity at criminal proceedings.79 Secondly, to ensure that the section complies with the equality provision of section 9 of the Constitution. The Supreme Court of Appeal accordingly held that the exclusion of child victims from the provisions of section 154(3) of the Criminal Procedure Act is irrational and in breach of section 9(1) of the Constitution, which guarantees everyone the right to equal protection and benefit of the law. The denial of equal protection to child victims, who are equally vulnerable, the court pointed out, can therefore not be justified.80 Parliament was consequently ordered to remedy the constitutional invalidity within 24 months of the date of the order. Pending parliament’s remedying the constitutional invalidity, the section is deemed to include such protection.81 The aforementioned constitutional case is welcomed in so far as it affirms the child victims’ and child witnesses’ right to equality.

It should be kept in mind that equality is a very contentious and intricate issue when it comes to children's rights. Skelton points out that as a general rule the children's rights sector petitions for the special protection, rather than the equality of children. She emphasises, however, that despite this call, there is a strong case to be made for the position that children should not receive less protection than adults would in the same circumstances.82 In addition, cognisance should be taken of the fact that children's inequality is often the very cause of their need for special protection. Birch comments that child abuse occurs in part because of the inequalities between a child and an adult in size, knowledge and power, and that these inequalities have been institutionalised by one-sided rules of evidence.83 The cross-examination of child victims and child witnesses during a criminal trail serves as an example. For cross-examination to be fair and just the parties

to the proceedings should have equal standing.84 It goes without saying that, when exposed to harsh cross-examination by adults, children are in a position unequal to that of the adults and may find it difficult to protect themselves. In order to uphold children's right to equality and to ensure an equality of outcome, it may therefore be necessary to treat children differently from everyone else.85 This type of differentiation is acknowledged by section 9(2) of the equality clause, which provides that legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken in order to promote equality.86

It is submitted that the application of section 170A of the Criminal Procedure Act,87 which allows for children to be cross-examined by an intermediary, could level the playing field in this regard. The introduction of the function of an intermediary by the insertion of section 170A(1) into the Criminal Procedure Act is one of the more important interventions in respect of the protection of child witnesses.88 The South African Law Commission (as it was then known) conducted an investigation into the effect of testimony by child witnesses in open court in 1989. The Commission came to the conclusion that children were severely traumatised by the adversarial criminal procedures followed. In an attempt to alleviate the effect of the accusatorial system on child witnesses and to avoid direct confrontation between a child and an accused, the Commission recommended the introduction of the function of an intermediary into the criminal justice system.89

An intermediary is a person specifically qualified to facilitate communication between the court and a child in a manner that is not only age-appropriate but also understandable to a child. The intermediary takes the child's cognitive and developmental abilities into account when conveying the meaning and contents of the court's questions to the child and acts as a "barrier or shield" between the formal justice system and the child, thus

ensuring that the child's rights are respected.90 The use of an intermediary therefore provides an enabling environment for the child witness and child victim to present his or her testimony and should be regarded as an example of an equalising measure.

The right to dignity is enshrined in section 10 of the Constitution. The Constitutional Court in S v Makwanyane91 stated as follows:

The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in chap 3. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others.

The Constitutional Court further pointed out that the right to dignity is intricately linked to other human rights.92 According to the Constitutional Court:

Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in chap 3.93

In Dawood v Minister of Home Affairs94 the Constitutional Court further elaborated on the importance of this right by stating that "dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected". Currie and De Waal point out that although we can be certain of the pivotal importance of human dignity in the Constitution, we can be less certain of the meaning of the concept. This is because neither the Constitution nor the Constitutional Court has ventured to offer a comprehensive definition of human dignity.95 Instead, the court has stated, it has "a wide meaning which covers a number of different values" and which gives a person "infinite worth".96

It goes without saying that children are also entitled to the right to dignity. In S v Mokoena; S v Phaswane97 Bertelsmann J with reference to Sachs J in

S v M (Centre for Child Law as amicus curiae)98 pointed out that every child has a dignity of his or her own, which entails that a child is to be constitutionally regarded as an individual with a distinctive personality and not merely as a miniature adult waiting to reach full size. The court emphasised that the importance of the right to dignity for the child victim and child witness demands the following:99

At the very least the criminal procedure and the courts should administer the criminal justice system in such a fashion that children who are caught up in its workings are protected from further trauma and are treated with proper respect for their dignity and their unique status as vulnerable young human beings.

This position was reiterated by the Constitutional Court in Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development100 when it held the following:

Each child must be treated as a unique and valuable human being with his or her individual needs, wishes and feelings respected. Children must be treated with dignity and compassion. In my view these considerations should also inform the principle that the best interest of the child are of paramount importance in all matters concerning the child as envisaged in s 28(2) of the Constitution.

In Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development101 the Constitutional Court, in addition to reaffirming the importance of dignity in recognising the inherent worth of children, emphasised that children's rights to dignity are not dependent on the rights of their parents; nor is the exercise of these rights held in abeyance until children reach a certain age.

It is clearly not only important that the child victim and child witness be treated with the necessary dignity and compassion, but also essential that the child victim and child witness should not be exposed to treatment such as demeaning cross-examination while testifying. Once again, the use of an intermediary may prove to be invaluable in this regard.

Section 12 of the Constitution guarantees the right to freedom and security of the person.102 Of particular importance to the child victim and child

witness is the right guaranteed in section 12(1)(c) of the Constitution, namely the right to be free from violence,103 as well as that guaranteed in section 12(1)(e), namely the right not to be treated or punished in a cruel, inhuman or degrading way.104

Although sections 12(1)(c) and 12(1)(e) may normally not be associated with court proceedings, it is submitted that it can be argued that exposing a child in open court to aggressive cross-examination by the alleged perpetrator or legal representative may amount to (secondary) violence or cruel, inhuman or degrading treatment. In support of this argument the Constitutional Court in DPP v Minister of Justice and Constitutional Development105 acknowledged that a child complainant who relates in open court in graphic detail in the presence of the accused the abusive acts perpetrated upon him or her will in most instances experience undue stress and suffering. This is exacerbated when the child is subjected to intensive and at times aggressive cross-examination by the accused or his or her legal representative. The Constitutional Court emphasised that cumulatively these experiences [this treatment] are often "as traumatic and as damaging to the emotional and psychological wellbeing of the child complainant as the original abusive act" or may even expose the child to "further trauma, possibly as severe as the trauma caused by the crime" itself.106

Currie and De Waal define violence against an individual as a grave invasion of that individual's personal security.107 Bishop and Woolman108 point out, however, that the violence contemplated in section 12(c) should

not be narrowly construed as "grave", as this would fail many of the people whom the right is meant to protect. In support of their argument they point out that women, for example, or men trapped in abusive relationships may suffer from psychological as well as physical violence that could probably not be successfully categorised as grave but could still entitle them to the protection of section 12(1)(c).

Section 12(1)(c) guarantees the right to be protected against an invasion of an individual's personal security, whether by the state or by private individuals. It therefore places an obligation on the state to protect individuals both negatively by itself refraining from such invasion and positively by restraining or discouraging private individuals from any invasion.109

With specific reference to the child victim and child witness, Bertelsmann J in S v Mokoena110 emphasised that "foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear and avoidable trauma."111 Judge Bertelsmann pointed out that both individually and collectively all children have the right to:

… express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their own bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood.112

He furthermore stressed that, although no constitutional injunction can in and of itself isolate children from the shocks and peril of harsh family and neighbourhood environments, the law can create conditions that protect children from abuse. The state should create positive conditions for recovery to take place and diligently seek to avoid conduct by its agencies that has the effect of placing children in peril.113

It can be argued that this means that the State has an obligation to protect children from further trauma; to develop conditions for the child to testify in a child-friendly environment conducive to recovery, and to refrain from placing the child in further peril by for example requiring the child to testify in the sight of an alleged perpetrator. It is precisely this secondary trauma

that section 170A(1) of the Criminal Procedure Act seeks to prevent,114 and accordingly the application of section 170A(1) could play an invaluable role in fulfilling this obligation.

2.2 The right to individual autonomy

Like everyone else, children are entitled to the rights to privacy,115 freedom of religion,116 freedom of expression117 and freedom of association.118 Of particular importance to the child victim and child witness is the right to privacy and the right to freedom of expression.

Section 14 of the Constitution provides that everyone has the right to privacy, which includes the right not to have their persons, property or homes searched, their possessions seized or the privacy of their communications infringed. This right in the Bill of Rights closely relates to the common-law personality right to privacy, which forms part of a person's dignitas.119 Neethling et al, in confirmation of the importance of the right to privacy, point out that a lack of privacy may negate the whole physical disposition of a person.120 A breach of a person's right to privacy may occur in two ways, namely when there is an unlawful intrusion of a person's personal privacy (for example where electronic equipment is used to eavesdrop on a private conversation) or an unlawful disclosure of private facts about a person (for example where a doctor relates his patient's ills to friends).121 This infringement must be subjectively contrary to the person's will and must also be objectively contrary to the contemporary boni mores and the general sense of justice of the community, as perceived by the courts.122

The importance of protecting the privacy of the child victim and child witness in criminal proceedings is recognised by our law, in that sections 153 and 154 of the Criminal Procedure Act respectively make provision for children to testify "in camera" and prohibit the publication of information which might reveal the identity of the complainant or the witness at such criminal

proceedings.123 In S v Mokoena124 Bertelsmann J describes the rationale for the protection of the privacy of the child victim and witnesses while testifying in criminal proceedings as follows:

Vulnerable witnesses must be protected from public exposure, either because disclosure of their identity may endanger their life or limb or because the sense of embarrassment and discomfort at having to testify before an audience, particularly concerning traumatic and sexually sensitive events, may expose the witness to emotional and psychological harm.

The need to protect such a child victim and child witness from possible harm therefore warrants the court's excluding the public or certain members of the public from attending the hearing and from revealing the identity of the child witness to the public.125

The child victim's right to privacy was examined by the court in Prinsloo v Bramley Children's Home.126 The applicants in the case were facing criminal charges for indecent assault and the possession of child pornography. The applicants launched a civil application for an order granting them access to the personal files, held by the Bramley Children's Home, of the two minor complainants in the criminal case. The applicants were suggesting that the children might have been involved in previous sexual misbehaviour or other improper conduct. They hoped to discover facts or suggestions in the children's personal files that might enable them, inter alia, to confront the minors during cross-examination with innuendos or allegations of misbehaviour of this nature.127

As to the merits of the application for access to the information, the court noted that there was no suggestion that the applicants had any knowledge that any such impropriety had occurred in the past and that they had intended to launch a dragnet operation to uncover anything of this nature to discredit the complainants' characters.128 The court furthermore stated that the information being sought was of a very personal nature and it was clear

that the mere launching of such an application, even if nothing relevant was found in the personal files, might cause the children considerable distress. The children's involvement in the criminal trial would be traumatic in itself without their having to face the additional prospect of an attack of this nature’s being launched upon their credibility, morals and probity.129

The court stressed that it was of paramount importance that the children's interests should be safeguarded by the court and that to allow access to the information would result in the infringement and limitation of the rights of the children and in particular their right to privacy, to emotional and psychological integrity, and to dignity.130

The court therefore resolved that the applicants bore the onus of proving to the court that their right to a fair trial justified the limitation of the children's aforementioned rights. The court held that in order to succeed with such an application, the applicants had to persuade the court, on a balance of probabilities, that it was essential for the preparation of their defence to have access to the information.131 In this instance the applicants had chosen not to disclose the nature of their defence and had failed to show any basis for the relief sought; instead, the grounds presented by them were "vague, superficial and unsupported by factual allegations". The application was accordingly dismissed.132 It is submitted that unless very strong factual grounds are presented, the application of the best interests of the child criteria will prevent any limitation of the child's right to privacy.

Children’s right to privacy also played a significant role in another leading decision of the Constitutional Court, namely Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development.133 The case concerned an application for the confirmation of a ruling by the High Court that certain provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act134 relating to the criminalisation of consensual sexual conduct with children of a certain age were unconstitutional and accordingly invalid.135

It is important to note that in considering the matter the Constitutional Court emphasised from the outset that the case was not about whether children should or should not engage in sexual conduct, nor was it about whether

Parliament may set a minimum age for consensual sexual conduct. Rather it dealt with the question whether it was constitutionally permissible for children to be subjected to criminal sanction in order to deter early sexual intimacy and to combat the risks associated therewith.136

The main question before the Constitutional Court was whether the impugned sections were inconsistent with the Constitution insofar as they limited adolescents' fundamental rights.137 The court found that sections 15 and 16 of the Sexual Offences Act did in fact constitute an encroachment on adolescents' rights and specifically their rights to human dignity (section 10) and privacy (section 14), and the principle of the best interests of the child (section 28(2)), as set out in the Constitution.138 The court also found that these limitations were not reasonable and justifiable in terms of section 36 of the Constitution.139

In considering whether the impugned sections infringed adolescents' right to privacy the Constitutional Court referred to National Coalition for Gay and Lesbian Equality v Minister of Justice,140 where it was held as follows:

Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.

The Constitutional Court held that the principled basis of reasoning followed in the National Coalition for Gay and Lesbian Equality v Minister of Justice applied with equal force to the consensual sexual conduct of adolescents.141 This was due to the fact that the criminal offences under sections 15 and 16 of the Sexual Offences Act apply to the most intimate sphere of personal relationships and inevitably involve adolescents' constitutional right to

privacy.142 The offences allow police officers, prosecutors and judicial officers to scrutinise and assume control of the intimate relationships of adolescents, thereby intruding into the personal realm of their lives. This intrusion, the court pointed out, is exacerbated by the reporting provisions set out in section 54, which oblige third parties to disclose information which may have been shared with them in the strictest confidence.143

The Constitutional Court accordingly declared sections 15 and 16 of the Sexual Offences Act inconsistent with the Constitution and invalid to the extent that they impose criminal liability on children under the age of sixteen years.144 This declaration of invalidity was suspended for a period of eighteen months, allowing Parliament to correct the defects in the Sexual Offences Act,145 which was subsequently amended by the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act146 in order inter alia to ensure that children of certain ages are not held criminally liable for engaging in consensual sexual acts with one another.147

The two aforementioned constitutional cases, namely Johncom Media Investments Limited v M and Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development are welcomed in that they contribute to developing a jurisprudence that recognises children as independent rights-holders of fundamental rights such as the right to privacy.148

As explained above, the privacy of the child victim and child witness in criminal proceedings is recognised by our law, in that section 154 of the Criminal Procedure Act prohibits the publication of information which might reveal the identity of the complainant or the witness at such criminal proceedings. It should be noted, however, that the protection afforded in terms of this section ceases to exist once the child victim or witness attains the age of eighteen. In the case of Centre for Child Law v Media 24149 the

North Gauteng High Court ruled150 that child offenders, victims and witnesses may be identified once they turn eighteen years of age.

Upon appeal of the matter, the Supreme Court of Appeal151 concurred with the High Court, namely that the protection afforded by section 154(3) of the Criminal Procedure Act to victims and witnesses of crime under the age of 18 years does not continue to protect such victims and witnesses after they turn 18 years.152 The Supreme Court of Appeal like the High Court considered the language of the section, stating that the section is unambiguous and the interpretation contended by the appellants, whether in respect of the victim extension or adult extension, was unduly strained.153 The appellants submitted that the section had to be interpreted in line with what was described as "the principal of ongoing protection".154 The appellants argued, which argument is supported by the writer hereof, that an interpretation that ensured ongoing protection better promoted section 28(2) of the Constitution, the "best interest of the child" provision, and protected child victims and witnesses from the severe harm of identification.155 The Supreme Court of Appeal, however, held that as the section is an exception to the open justice rule and by virtue of the fact that it carries a criminal sanction, it must be interpreted in favour of individual liberty. Furthermore, that the extension of the anonymity protection for children conflicts with the right to freedom of expression and freedom of the press and other media entrenched in section 16(1)(a) of the Constitution.156

After conducting the proportionality analysis157 the Supreme Court of Appeal held that in the absence of any limitation on the nature and extent of the adult extension, the relief sought by the appellants was overboard and did not strike an appropriate balance between the rights and interest involved. The proposed limitation on the right of the media to impart information was furthermore neither reasonable nor justifiable, in terms of section 36 of the Constitution. The Supreme Court of Appeal consequently concluded that the constitutional challenge to the provision of section 154(3) of the Criminal Procedure Act on this basis must fail.158

Nonetheless, the Supreme Court of Appeal, upheld the interim order made to protect the identity of the victim in the matter, Zephany Nurse, pending

the outcome of any appeals to the Constitutional Court arising from the judgment.159

It is furthermore of value to note that the Supreme Court of Appeal, per Swain JA, despite its ruling expressed sympathy with the objective of the appellants in seeking to protect the anonymity of children as victims, witnesses and offenders of crime, once they reach adulthood. However, whether the law requires amendment and if so the nature and extent of such an amendment, Swain JA indicated, is a task more appropriately left to the Legislature.160

It is submitted by the writer hereof that an amendment to the law may not only be advisable but may be received with wide support. The Minister of Justice has already expressed support for an extension to the protection of the anonymity of children.161 Such an extension would also be in line with the protection afforded to child witnesses in other Commonwealth countries.162 Moreover, as highlighted by Willis JA,163 to do otherwise would not only violate that person's constitutional right to dignity, but the knowledge, as a child, that one's identity as a victim of crime may be revealed upon attaining of one's majority, may haunt that child, causing her considerable emotional stress. In his opinion, which opinion is supported by the writer hereof, it verges on cruelty to sanction torment as such.164

Section 16 of the Constitution guarantees everyone, including children, the right to freedom of expression.165 This includes the freedom of the press and media, freedom to receive or impart information and ideas, artistic creativity and academic freedom and scientific research. Of particular importance to the child witness is the freedom to receive or impart information and ideas.166

Currie and De Waal contend that as section 16(1) protects free expression, in principle one could argue that every act by which a person attempts to express some emotion, belief or grievance should qualify as "expression".167 According to them, the wide, almost unlimited conception

of expression in section 16 means that protection is accorded to many problematic forms of speech that would be left out of constitutional consideration in other jurisdictions.168 In the context of the child victim and child witness, one could accordingly argue that this provision guarantees the child witness the right to express himself or herself in a variety of ways, including in a non-conventional, novel or creative manner.169 This correlates with section 161(2) of the Criminal Procedure Act, which states that in the case of a witness under the age of eighteen years evidence shall be deemed to include "demonstrations, gestures or any other form of non-verbal expression".

In addition, child witnesses should be able to express themselves "freely" when giving testimony in the criminal justice setting.170 The possibility of doing so for children in an adversarial criminal justice system has been questioned by professionals and academics.171 Empirical evidence has in fact shown that the confrontational setting decreases the child's willingness and ability to give an accurate description of the events he or she has to testify about. Children are more likely to say "I don't know" or may even refrain from answering at all.172

Section 170 of the Criminal Procedure Act recognises the context within which a child complainant or child witness has to testify. It accepts that testifying in court carries with it a certain degree of mental stress or suffering for the child. Its objective is to reduce to the minimum the degree of stress experienced by the child and to create an atmosphere that is conducive to allowing the child to speak freely about the events relating to the offence committed against the child. The provision of an intermediary is intended to create this atmosphere for the child.173 One could therefore argue that, in order to ensure that a child has full realisation of the right to freedom of expression, the presiding officer should give serious consideration to the desirability of appointing an intermediary when exercising his discretion on whether or not to appoint an intermediary.174

3 Section 28: Specific children's rights

Section 28 of the Bill of Rights175 affords children specific protection such as the right to a name and a nationality from birth;176 to family care or parental care, or to appropriate alternative care when removed from the family environment;177 to be protected from maltreatment, neglect, abuse or degradation;178 as well as the right to have regard to the fact that a child's best interests are of paramount importance in every matter concerning the child.179

A perusal of section 28 reveals that the section does not afford the child victim and child witness a specific right to protection as a victim or witness. Nevertheless, the right not to be subjected to neglect, abuse or degradation as set out in section 28(1)(d) as well as the principle that a child's best interests are of paramount importance in every matter concerning the child are of particular importance to the child victim and child witness. These rights will accordingly be discussed in more detail below.

3.1 The right not to be subjected to neglect, abuse or degradation

Section 28(1)(d) of the Constitution provides that a child has a right to be protected from maltreatment, neglect, abuse or degradation. This right reflects society's belief that children are vulnerable. According to Bekink and Brand, section 28(1)(d) imposes a constitutional duty on private persons, as well as the State, to refrain from these forms of treatment, and in addition imposes a positive obligation on the State to prevent harm to children.180

The second obligation is of particular importance in two possible instances. Firstly, the state is required to put an end to situations of on-going maltreatment, neglect, abuse and degradation in the family or any other context by means such as removing the child from such a situation.181 This

duty is given specific legislative effect in the Children's Act.182 For instance, Chapter 7 of the Children's Act provides special measures for reporting cases of abuse or neglect of children,183 while Chapter 9 of the Children's Act provides the legal machinery to intervene when a child is in need of care and protection, such as the removal of the child to temporary safe care.184

Bekink and Brand point out that, in order to meet this positive constitutional duty to intervene in situations of on-going abuse to protect a child, the State in many instances acts in conflict with the child's right to family or parental care. They argue that this creates the need for a flexible test against which to decide whether the decision by the State to intervene in a situation of abuse may be constitutionally sound.185 Kruger186 maintains that this infringement of the child's right to family or parental care is probably justified in terms of the limitation clause in situations of on-going abuse.

The second context within which the State must act to prevent the neglect, abuse, maltreatment and degradation of children is the general context of the legislative and policy protection of rights. In this regard the State is under a constitutional duty to create legislative and other measures to protect children against potential maltreatment, neglect, abuse and degradation. Examples of such legislation include the Children's Act187 as well as the Sexual Offences Act,188 which introduces a whole range of new offences aimed at protecting children from violence. These statutory instruments bear witness to an increasing awareness of and concern on the part of the legislature for the need to ensure that children are protected against the increasing prevalence of violence that is engulfing our society.189

Of particular consequence to the child victim or child witness are the various amendments made by the latter Act to the Criminal Procedure Act to provide for special measures for children to testify, such as testifying "in camera"; the prohibition of the publication of information that might reveal the identity of the child victim or witness, and the use of an intermediary.190 In so doing

the legislature has tried to ameliorate, if not eradicate, those aspects of the criminal process that tend to expose the child to secondary psychological trauma or emotional harm.191

In S v Mokoena192 Bertelsmann J emphasised that in the light of the occurrence of this secondary trauma (the child’s having to give evidence in court about his or her experience), it is incumbent upon the criminal law and criminal procedure and upon the courts along with their functionaries and practitioners to administer the criminal justice system in such a fashion that children who are caught up in its workings are protected from further harm and are treated with proper respect. Testifying "in camera" as well as the appointment of an intermediary goes a long way to ensuring that this right not to be subjected to (further) harm or abuse is accomplished.193 This view is particularly apposite if one takes into account that the definition of "abuse" in the Children's Act is broad and includes the prevention of "exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally".194

In DPP v Minister of Justice and Constitutional Development195 the Constitutional Court acknowledged that for a child witness to testify about the details of abusive acts may cause severe harm to the child's psychological and emotional wellbeing and may lead to secondary traumatisation.196 To subject the child to the normal adversarial process of testifying in court may accordingly fall squarely within the definition of abuse in the Children's Act.

The Constitutional Court has dealt with the right (among others) not to be subjected to maltreatment, neglect, abuse or degradation in two cases dealing with the corporal punishment of children in public settings.197 Although the two cases were brought on grounds that included the right to be protected against maltreatment, neglect, abuse or degradation as stipulated in section 28(1)(d), the court did not make any significant pronouncements on the meaning of the subsection in either of the two judgments.198

In S v Williams199 the court declared the section of the Criminal Procedure Act that allowed for the corporal punishment of juvenile delinquents to be invalid, owing to its being a violation of the right to be protected from cruel and degrading punishment. The court unfortunately did not find it necessary to examine the right in any detail.

The second case, Christian Education SA v Minister of Education,200 was decided after the promulgation of the South African Schools Act,201 which banned corporal punishment in schools. In dealing with the matter the Constitutional Court did not decide whether corporal punishment was in violation of the Bill of Rights, but instead focussed on the right to freedom of religion, and subjected the infringement of the right to a limitations analysis in terms of section 36 of the Constitution.202 The court came to the conclusion that although the parents' right to freedom of religion was being violated by the ban on corporal punishment, the limitation was justifiable.203

Of value, however, for the child victim and child witness is the emphasis placed in both S v Williams204 and Christian Education SA v Minister of Education205 on the fact that the State has a constitutional obligation to protect all people and especially children from maltreatment, abuse or degradation. Sachs J in Christian Education SA v Minister of Education added that by ratifying the Convention on the Rights of the Child the State undertook to take all appropriate measures to protect the child from violence, injury or abuse and stated that one of the reasons for the

provisions banning corporal punishment was "to protect the learner from physical and emotional abuse".206

Although the focus of this paper is not on the international protection of child witnesses and victims it is perhaps of value in the light of the above dictum to consider article 19 of the Convention on the Right of the Child (CRC).207 It encapsulates the CRC's central and most comprehensive conceptualisation of the protection of children against all forms of violence.208 In doing so it clearly places a legal obligation on States Parties to the CRC to establish measures for the protection of children against all forms of violence. Such protective measures should include a range of interventions, namely legislative, administrative, social and educational measures as well as social programmes of support for the child and the child’s caregivers, proactive prevention against the experience of violence and maltreatment for those who have been the victims of violence.209

In its comments on article 19, the Committee on the Rights of the Child (the Committee) gives recognition to the fact that child victims and witnesses find the judicial process particularly onerous.210 The Committee furthermore draws special attention to the fact that child victims and witnesses are in need of special protection, assistance and support appropriate to their age, level of maturity and unique needs in order to prevent possible hardship and trauma that may result from their participation in the criminal justice process. The Committee fittingly calls on all those involved in the judicial process to assist children in all possible ways in the unfortunate situation where those children have been the subject of victimisation.211 In this regard the Committee emphasises that:212

Mindful of the aforementioned aspects, child-sensitive measures, such as special interview rooms, modified courtrooms, CCTV, limiting the number of interviews and protecting the child from being interviewed by the alleged perpetrator should be used. All questioning should be conducted in a child-sensitive manner, for example by using testimonial aids or appointing psychological experts such as intermediaries or communicators to assist with the questioning of child victims and witnesses.213

It is accordingly submitted by the writer hereof that, in order to give full recognition to the right of child victims and child witnesses not to be subjected to neglect, abuse or degradation, it is imperative that all measures be taken to provide protection, assistance and support to these children in order to prevent possible hardship and trauma that may result from their participation in the criminal justice process.

The abovementioned amendments made to the Criminal Procedure Act214 that provide for child friendly-measures in the criminal justice system as well as the abovementioned jurisprudence that gives recognition to the obligation of the State to undertake and implement appropriate measures to protect children from harm and or secondary harm is much welcomed, in that it demonstrates a progressive commitment by the State and the courts to realising a child victim's and witness's constitutional right to security and freedom from abuse.

3.2 The paramountcy of the child's best interests

The best interests principle was established in South African law in the 1940s.215 Its influence was, however, previously limited to family law proceedings. In emulation of international instruments,216 the application of the best interests of the child principle has been expanded to all aspects of the law affecting children. In Minister of Welfare and Population

Development v Fitzpatrick217 Goldstone J pointed out that section 28(1) is not exhaustive of children's rights, but that:

… section 28(2) requires that the child's best interests have paramount importance in every matter concerning the child. The plain meaning of the words clearly indicates that the reach of section 28(2) cannot be limited to the rights enumerated in section 28(1) and section 28(2) must be interpreted to extend beyond those provisions. It creates a right that is independent of those specified in section 28(1).

This makes it clear that section 28(2) should not be limited to the rights enumerated in section 28(1), but that section 28(2) is a right on its own.218 It should therefore not be regarded as a mere guideline.219 In addition to being an independent right, this right also reinforces other rights.220 The best interests principle has furthermore been used to determine the ambit of, as well as to limit, other competing rights.221 The Constitutional Court, for example in De Reuck v Director of Public Prosecutions,222 has found that although the law banning child pornography limits the applicant's rights to privacy and freedom of expression, this limitation is justifiable in view of the importance of the purpose of protecting the child's best interests.

It should be noted, however, that despite the use of the emphatic word "paramount" coupled with the far-reaching phrase "in every matter concerning the child" in section 28(2), this right does not automatically trump all other rights. In De Reuck v Director of Public Prosecutions223 the Constitution held that to say that "s 28(2) of the Constitution 'trumps' other provisions of the Bill of Rights … would be alien to the approach adopted by this Court that constitutional rights are mutually interrelated and interdependent and form a single constitutional value system". The court therefore stated that "s 28(2), like the other rights enshrined in the Bill of Rights, is subject to limitations that are reasonable and justifiable in compliance with s 36."224 It follows, then, that the fact that the best interests of the child are paramount does not mean that they are absolute.225 They are capable of limitation by section 36 of the Bill of Rights.226

The concept of the best interests of the child has in the past been criticised as being inherently indeterminate, providing little guidance to those given the task of applying it to matters concerning children.227 This was partly due to the absence of a statutory checklist of factors to be taken into account when assessing what is in a child's best interests.228 This was accordingly included in the Children's Act. Section 7 of the Children's Act sets out a list of fourteen factors229 that must, where relevant, be considered by every

decision maker who applies this principle. Boezaart230 points out that regrettably the list provided in the Act is a closed list in that it does not provide for "any other factor that may be relevant" as was the case in McCall v McCall231 and that this may prove to be a limitation in practice. However, she underscores, judicial officers can and should use their judicial discretion to consider any other factor where relevant.232 Although no checklist can fully eliminate the indeterminate nature of the best interests of the child standard, the use of the checklist helps to ensure that relevant considerations are taken into account and that the decision-making process follows a rational and structured approach.

In S v M233 the Constitutional Court acknowledged the difficulties with the indeterminate nature of the standard of the best interests. Sachs J noted that the very expansiveness of the paramountcy principle creates the risk of appearing to promise everything in general while actually delivering little in particular. The court pointed out, however, that it is precisely this contextual nature and inherent flexibility of section 28 that constitutes the source of its strength.234

As stated previously, the best interests principle also plays an important role in jurisprudence relating to the testimony of child victims and child witnesses in criminal trials. In S v Mokoena235 Judge Bertelsmann declared section 170A(1) of the Criminal Procedure Act to be unconstitutional in that the subsection grants a discretion to a court to appoint or not to appoint an intermediary when a child witness has to present testimony in a criminal trial. Bertelsmann J relied on section 28 of the Constitution, which demanded that a child should be exposed to as little stress and mental anguish as possible, particularly in the case of a child witness who has been the victim of a sexual attack.236 The learned judge noted that it was difficult to understand why the legislature should insist that the child victim should

be exposed to undue stress and suffering before the services of an intermediary may be considered. In his view, this threshold provision places a limitation upon 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. In his view, to demand an extraordinary measure of stress or anguish before the assistance of an intermediary can be called upon clearly discriminates against the child and is constitutionally untenable. In addition, according to him, this section infringes upon the child victim's right to equal treatment, dignity and a fair trial.237

However, in DPP v Minister of Justice and Constitutional Development238 the Constitutional Court refused to confirm the order of invalidity. The Constitutional Court dealt with the matter by looking at four interrelated questions:239

Firstly, the Constitutional Court confirmed that the object of section 170A(1) is to protect child complainants in sexual offence cases and other child witnesses from undergoing the undue mental stress or suffering that may be caused by testifying in court. This object is consistent with the principle that the best interests of children are of paramount importance in criminal trials involving child witnesses. The court pointed out that section 170A(1) recognises the context in which a child complainant testifies in court and aims to prevent a child from undergoing undue mental stress or suffering while giving testimony by permitting the child to testify through an intermediary. Section 170A(1) must therefore be construed so as to give effect to this object, namely to protect child complainants from the hardship and trauma that may result from their participation in the criminal justice system.240

Secondly, with regard to the meaning of the phrase "undue mental stress or suffering", the Constitutional Court stressed that, as the phrase is not defined, the meaning of the phrase must be understood in the context of the objectives of section 170A(1)241 as informed by section 28(2) of the Constitution, and the atmosphere in which a child is testifying in court.242 The court observed that courts have come to accept that the giving of evidence in cases involving sexual offences exposes complainants to further trauma that may be as severe as the trauma caused by the crime. In addition the Constitutional Court pointed out that it is accepted by the court that a child complainant in a sexual offence case who testifies without the assistance of an intermediary faces a high risk of exposure to undue mental stress or suffering. The object of section 170A(1) read with section 170A(3) is precisely to prevent this risk of exposure.243

Thirdly, the Constitutional Court emphasised that this risk of exposure was also the reason why, contrary to the reasoning of the High Court, the subsection does not require that the child first be exposed to undue mental stress or suffering before the provision may be invoked. Such an interpretation of the implementation of section 170A(1) would be inimical to the objectives of both section 28(2) and section 170A(1) as well as article 3(1) of the CRC. What subsection 170A(1) contemplates is that the child should be assessed prior to testifying in court in order to determine whether the services of an intermediary are required. If such an assessment reveals that the services of an intermediary are needed, then the State must see to it that an application for the appointment of an intermediary in terms of section 170A(1) is made before the child testifies.244

According to the Constitutional Court this procedure should be followed in all matters involving child complainants in sexual offence cases and should

become a standard pre-occupation of our criminal courts dealing with complainants in sexual offence cases. In applying the best interests principle, judicial officers should therefore consider how the child's rights and interests are, or will be, affected if the child complainant in a sexual offence case has to testify without the aid of an intermediary. Where the prosecutor fails to raise this matter it follows that the judicial officer must, of his or her own accord, raise the need for an intermediary to assist the child in giving testimony.245

Furthermore, it should be noted that, according to the Constitutional Court,246 the nature of an enquiry into the need for an intermediary is not akin to that of a civil trial, which attracts a burden of proof, as was found in the case of S v F.247 Rather, it is an enquiry which is conducted in the interests of a person (the child) who is not a party to the proceedings but who possesses constitutional rights.248 What is required of the judicial officer is therefore to consider whether, on the evidence presented to him or her, viewed in the light of the objectives of the Constitution and section 170A(1), it is in the best interests of the child that an intermediary be appointed.249

Fourthly, in considering the question whether the discretion given to judicial officers to appoint intermediaries renders section 170A(1) unconstitutional, Ngcobo J stated that the conferral of a discretion on judicial officers "cannot be unconstitutional simply because some judicial officers may exercise the discretion incorrectly".250 Ngcobo J emphasised the importance of judicial discretion and stated that "what is required is individualised justice, that is, justice which is appropriately tailored to the needs of the individual case".251 Moreover, Ngcobo stated, discretion is a flexible tool which enables judicial officers to decide each case on its own merits. In the context of the appointment of an intermediary the conferral of judicial discretion recognises the existence of a wide range of factors, such as the age, gender, disability and level of maturity of a specific child and the nature of the offence that could influence the appointment of an intermediary in a

particular case.252 The exercise of this discretion is, however, circumscribed in that it must be exercised with due regard to the objective of protecting the child from the undue stress or suffering that may arise from testifying in court and the principle that the child's best interests are of paramount importance in criminal proceedings concerning a sexual offence against a child.253 The exercise of this discretion must therefore be so construed as to give effect to the aforementioned objective and the principle of the best interests of the child. The Constitutional Court therefore intertwines the test of undue mental stress or suffering with the best interests test.254 This approach was also followed in Kerkhoff v Minister of Justice and Constitutional Development255 where Southwood J stated with reference to DPP v Minister of Justice and Constitutional Development that "[i]t is clear that the enquiry has a narrow focus: to determine whether it is in the best interests of the child that an intermediary be appointed."

The Constitutional Court concluded that, if section 170A(1) fails to meet the objective of section 28(2), the fault lies not in the provision itself but in the manner in which it is interpreted and implemented. In the words of Ngcobo J an incorrect interpretation or implementation of the provision does not render it unconstitutional. The solution, according to the Constitutional Court, does not lie in making the appointment of an intermediary compulsory in every sexual offence case in which a child complainant is involved, but in making judicial officers and prosecutors aware of their constitutional obligations to ensure that the best interests of children are of paramount importance in criminal trials involving child complainants. In this context judicial education and the training of prosecutors and other officials who deal with victims of sexual offences are of vital importance.256

Although it may be argued, which argument is supported, that by issuing the above-mentioned dictum the Constitutional Court has effectively reduced the best interests of the child principle to essentially a matter of statutory interpretation,257 the importance of the role of the best interests principle

and the objective of section 170A(1), namely to prevent children from being exposed to undue mental stress or suffering while testifying, have been reaffirmed by the Constitutional Court beyond any doubt.

In Kerkhoff v Minister of Justice and Constitutional Development258 Southwood J stated with regard to the inquiry into what is in the best interests of the child when deciding on the appointment of an intermediary that the inquiry:

… is not concerned with whether the child is competent to give evidence or whether the child's evidence is admissible, credible and reliable. These are issues which will arise in the trial and will be decided by the court in the light of all the evidence. It is significant that section 170A makes provision for a simple procedure for the appointment of an intermediary and essential jurisdictional fact: i.e. when it appears to the court that the relevant witness would be exposed to undue mental stress and suffering.

This places an enormous responsibility on the courts and those dealing with child victims and child witnesses in the criminal justice system to ensure that section 170A is correctly interpreted and implemented, as an incorrect interpretation or implementation might result in a child who is in need of assistance being left out in the cold.

It is therefore not surprising that the Constitutional Court's view that section 170A(1) is not unconstitutional simply because it confers a discretion to appoint an intermediary on the courts has been the subject of some criticism. Freedman259 points out that the Constitutional Court's reasons for rejecting the High Court's view that section 170A(1) is unconstitutional because it confers a discretion to appoint an intermediary are not entirely convincing, at least in so far as sexual abuse cases are concerned. He points out, and rightly so, that while it is true that some child complainants may want to confront their abusers, it is very unlikely that the majority of child complainants will want to. Given this fact he finds it difficult to understand why a right that may be claimed by a small minority of child complainants should outweigh the danger that conferring a discretion on the court to appoint an intermediary poses for the majority of child complainants. He stresses that in this respect it is important to bear in mind that it was the High Court that misinterpreted section 170A(1) and diluted the protection it confers on child complainants.260 With reference to Schwikkard261 he furthermore argues that the flawed approach adopted by the High Court towards section 170A(1) appears to have arisen out of a bias in favour of

the accused's right to confront and to cross-examine the child witness, and it is not entirely clear whether this bias can be overcome through a process of judicial education, as the Constitutional Court suggested. In addition, the Constitutional Court gives no indication of who should take responsibility for developing and implementing such a programme. Freedman points out, and rightly so, that the Constitutional Court's suggestion has simply been left hanging in the air.262

Similarly, Matthias and Zaal263 are of the opinion that the High Court's approach is preferred for a society in which (as was generally agreed in both cases, according to them) the problems of insufficiently motivated and sensitised prosecutors and magistrates are extensive. The High Court's approach would have compelled prosecutors and magistrates to supply a cogent justification for the avoidance of intermediaries. Bertelsmann J states that the substantial reason qualification264 in fact creates the flexibility which the Constitutional Court holds to be so vital.265

After considering the aforementioned arguments, the approach of the High Court is preferred in that it sets a standard norm for the appointment of intermediaries which can be departed from in the event that a child witness so wishes or cogent reasons can be found by the presiding judicial officer for not appointing an intermediary. This not only simplifies the process while allowing for flexibility but in addition ensures a more consistent interpretation and implementation of section 170A(1). Both the High Court and the Constitutional Court clearly accept as a point of departure the fact that testifying as a complainant in a criminal trial is stressful.266 It is therefore difficult to imagine how the interests of justice will not be best served by allowing for the appointment of an intermediary as a standard norm.

4 Conclusion

It is common knowledge that the rights of children have not been adequately recognised in the past and that many legal systems have failed to fulfil this objective. Prior to the 1980s very few countries in the world recognised children's unique characteristics, such as their innocence, naivety, lack of maturity, language and cognitive development, in relation to those of adults. The need for an individualised approach when dealing with child victims and

witnesses in the criminal justice system was not acknowledged. The emphasis was placed on the child's responsibility as victim and/or witness to assist the criminal judicial system, with little attention being afforded to the child's needs.267

This is also true of the child victim and witness in the South African criminal justice system. In DPP v Minister of Justice and Constitutional Development,268 the Constitutional Court acknowledged that in the past South African law did not pay much attention to the anxiety and stress that child victims and child witnesses suffered when entering the criminal justice system, especially while testifying.269

Since becoming a democracy in 1994, the South African government has committed itself through the Constitution to address and improve the situation of children, including that of child victims and witnesses. Owing to their particular vulnerability and the difficulties experienced by child victims and witnesses when having to testify, it is of immense importance that they receive the necessary protection. It is hence heartening to note that the evaluation of the constitutional protection of child victims and child witnesses in the criminal justice system clearly illustrates that their rights, such as the right to dignity, equality, individual autonomy, and freedom from violence, and the standard of the paramountcy of the best interest of the child, lie at the heart of the Constitution. The evaluation also reflects the constitutional obligation of the State and its institutions, including the courts, to respect and safeguard these rights.

The jurisprudence referred to above, such as DPP v Minister of Justice and Constitutional Development270 and Centre for Child Law v Media 24 Limited,271 demonstrates an enlightened and general dedication by the courts to realising these rights for child victims and witnesses in real-life situations. In this regard the courts can be commended for recognising children's' vulnerability and for acknowledging the right of child victims and child witnesses not only to be treated with dignity and compassion but also to be protected from the hardship and trauma that may result from their participation in the criminal justice system.272 The recognition given by the courts to the importance of the application of special measures such as testifying "in camera"; the prohibition of the publication of information that may reveal the identity of the child victim or witness; and especially the provision of an intermediary in alleviating undue mental stress or suffering

for the child victim and witness while giving testimony is moreover greatly welcomed.273 It is submitted, however, that the appointment of an intermediary as a standard norm, as argued above,274 would further enhance the protection of child victims and witnesses.

The application of the best interest principle by the courts in the aforementioned judgments resoundingly demonstrates a commitment by the courts towards a child-centred and child-sensitive dispensation when dealing with child victims and witnesses. The courts can be complemented for recognising the inherent worth of children275 and for treating these victims and witnesses as individuals with a distinctive personality and not merely as miniature adults. By applying and developing the law in such a manner, namely one that favours protecting and advancing children's rights, recognition is given to "the right [of children] as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma."276

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Friedman A, Pantazis A and Skelton A "Children's Rights" in Woolman S et al (eds) Constitutional Law of South Africa 2nd ed (Juta Cape Town loose-leaf updates) ch 47

Heaton 2009 JJS

Heaton J "An Individualised, Contextualised and Child-centred Determination of the Child's Best Interest, and the Implications of such an Approach in the South African Context" 2009 JJS 1-18

Higgins 2004 Family Malted

Higgins D "Differentiating between Child Maltreatment Experiences" 2004 Family Malted 50-55

Iyer and Ndlovu 2012 Obiter

Iyer D and Ndlovu L "Protecting the Child Victim in Sexual Offences: Is there a Need for Separate Legal Presentation?" 2012 Obiter 72-92

Jamieson, Sambu and Mathews Out of Harm's Way?

Jamieson L, Sambu W and Mathews S Out of Harm's Way? Tracking Child Abuse Cases through the Child Protection System in Five Selected Sites in South Africa (Children's Institute, University of Cape Town Cape Town 2017)

Kruger 2007 THRHR

Kruger JM "The Protection of Children's Rights in the South African Constitution: Reflections on the First Decade" 2007 THRHR 239-262

Kruger "Protection of a Child's Right to Privacy"

Kruger JM "Protection of a Child's Right to Privacy in South African Law" in Potgieter J, Knobel J and Jansen R (eds) Essays in Honour of Johann Neethling (LexisNexis Durban 2015) 269-283

Matthias and Zaal 2011 Intl J Child Rts

Matthias CR and Zaal FN "Intermediaries for Child Witnesses: Old Problems, New Solutions and Judicial Differences in South Africa" 2011 Intl J Child Rts 251-269

Milo, Penfold and Stein "Freedom of Expression"

Milo D, Penfold G and Stein A "Freedom of Expression" in Woolman S et al (eds) Constitutional Law of South Africa 2nd ed (Juta Cape Town loose-leaf updates) ch 42

Mtshaulana et al Documents on International Law

Mtshaulana PZ et al (eds) Documents on International Law (Juta Cape Town 1996)

Müller and Tait 1999 THRHR

Müller K and Tait M "Little Witnesses: A Suggestion for Improving the Lot of Children in Court" 1999 THRHR 241-258

Neethling et al Law of Personality

Neethling J et al Law of Personality 2nd ed (LexisNexis Durban 2005)

Ngcukaitobi "Equality"

Ngcukaitobi T "Equality" in Currie I and De Waal J (eds) The Bill of Rights Handbook 6th ed (Juta Cape Town 2013) 209-250

Prinsloo 2012 CARSA

Prinsloo J "The Rights of Child Victims and Witnesses of Crime: An International Analysis" 2012 CARSA 74-86

SALC Project 71

South African Law Commission Project 71: Protection of the Child Witness - Working Paper 28 (The Commission Pretoria 1989)

SALC Project 73

South African Law Commission Project 73: Fifth Interim Report on Simplification of Criminal Procedure (The Commission Pretoria 2001)

Schwikkard 1996 Acta Juridica

Schwikkard PJ "The Abused Child: A Few Rules of Evidence Considered" 1996 Acta Juridica 148-162

Schwikkard "Getting Somewhere Slowly"

Schwikkard PJ "Getting Somewhere Slowly: The Revision of a Few Evidence Rules" in Artz L and Smythe D (eds) Should we Consent?: Rape Law Reform in South Africa (Juta Cape Town 2008) ch 4

Schwikkard 2009 Namibia LJ

Schwikkard PJ "The Evidence of Sexual Complainants and the Demise of the 2004 Criminal Procedure Act" 2009 Namibia LJ 5-27

Skelton "Children"

Skelton A "Children" in Currie I and De Waal J (eds) The Bill of Rights Handbook 6th ed (Juta Cape Town 2013) 589-623

Skelton "Constitutional Protection of Children's Rights"

Skelton A "Constitutional Protection of Children's Rights" in Boezaart T (ed) Child Law in South Africa 2nd ed (Juta Cape Town 2017) 327-358

Van der Merwe "Children as Victims and Witnesses"

Van der Merwe A "Children as Victims and Witnesses" in Boezaart T (ed) Child Law in South Africa (Juta Cape Town 2009) 563-586

Whitear-Nel 2011 SACJ

Whitear-Nel N "Sentencing an Accused whose Legal Representative Fails to Participate Meaningfully in the Process: A Discussion of S v Samuels 2011 (1) SACR 9 (SCA): Notes" 2011 SACJ 347-355

Woolman "Dignity"

Woolman S "Dignity" in Woolman S et al (eds) Constitutional Law of South Africa 2nd ed (Juta Cape Town loose-leaf updates) ch 36

Zeffertt and Paizes Essential Evidence

Zeffertt DT and Paizes AP Essential Evidence (LexisNexis Butterworths 2010)

Case law

Christian Education SA v Minister of Education 2000 4 SA 757 (CC)

Christian Lawyers Association v Minister of Health 2005 1 SA 509 (T)

Centre for Child Law v Media 24 Limited 2017 2 SACR 416 (GP)

Centre for Child Law v Media 24 Limited 2018 2 SACR 696 (SCA)

Dawood v Minister of Home Affairs 2000 3 SA 936 (CC)

De Reuck v Director of Public Prosecution 2004 1 SA 406 (CC)

Director of Public Prosecutions v S 2000 2 SA 711 (T)

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 2 SACR 130 (CC)

Du Toit v Minister of Welfare and Population Development 2003 3 SA 198 (CC)

Fletcher v Fletcher 1948 1 SA 130 (A)

Harksen v Lane 1998 1 SA 300 (CC)

Johncom Media Investments Ltd v M 2009 4 SA 7 (CC)

Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP)

L v Frankel 2017 2 SACR 257 (GJ)

Le Roux v Dey 2011 3 SA 274 (CC)

Levenstein v Estate of the Late Sidney Lewis Frankel 2018 2 SACR 283 (CC)

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC)

McCall v McCall 1994 3 SA 201 (C)

Minister of Welfare and Population Development v Fitzpatrick 2000 3 SA 422 (CC)

Prinsloo v Bramley Children's Home 2005 5 SA 119 (T)

R v Manda 1951 3 SA 158 (A)

S v Dodo 2001 3 SA 382 (CC)

S v F 1999 1 SACR 571 (C)

S v Hanekom 2011 1 SACR 430 (WCC)

S v Haupt 2018 1 SACR 12 (GP)

S v Jackson 1998 1 SACR 470 (A)

S v M 1999 2 SACR 548 (SCA)

S v M 2008 3 SA 232 (CC)

S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC)

S v Makwanyane 1995 3 SA 391 (CC)

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

S v Viveiros 2000 2 All SA 86 (SCA)

S v Williams 1995 3 SA 632 (CC)

Sonderup v Tondelli 2001 1 SA 1171 (CC)

Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 2 SA 168 (CC)

YG v S 2018 1 SACR 64 (GP)

Legislation

Child Justice Act 75 of 2008

Children's Act 38 of 2005

Choice on Termination of Pregnancy Act 92 of 1996

Constitution of the Republic of South Africa 200 of 1993

Constitution of the Republic of South Africa, 1996

Criminal Law Amendment Act 135 of 1991

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act 5 of 2015

Criminal Procedure Act 51 of 1977

Criminal Procedure Amendment Act 86 of 1996

South African Schools Act 84 of 1996

International and regional instruments

African Charter on the Rights and Welfare of the Child (1990)

Committee on the Rights of the Child General Comment No 13: The Right of the Child to Freedom from All Forms of Violence UN Doc CRC/C/GC/13 (2011)

Hague Convention on the Civil Aspects of International Child Abduction (1980)

United Nations Convention on the Rights of the Child (1989)

United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)

United Nations Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2005)

Internet sources

Artz et al 2016 http://www.cjcp.org.za/uploads/2/7/8/4/27845461/08_cjcp_report_2016_d.pdf

Artz L et al 2016 Optimus Study South Africa: Technical Report - Sexual victimisation of children in South Africa

http://www.cjcp.org.za/uploads/2/7/8/4/27845461/08_cjcp_report_2016_d.pdf accessed 18 September 2018

Crime Stats SA 2018 http://www.crimestatssa.com/national.php

Crime Stats SA 2018 Crime Stats Simplified http://www.crimestatssa.com/national.php accessed 16 September 2018

Fang et al 2016 https://www.savethechildren.org.za/sci-za/files/47/47ab7077-1d0d-4c37-8ae2-161b18ae427a.pdf

Fang X et al 2016 Violence Unwrapped: The Social and Economic Burden of Violence against Children in South Africa https://www.savethechildren.org.za/sci-za/files/47/47ab7077-1d0d-4c37-8ae2-161b18ae427a.pdf accessed 15 August 2018

SAPeople 2018 https://www.sapeople.com/2018/05/16/children-are-victims-of-almost-half-of-all-rapes-cases-in-south-africa-46-raped-2-murdered-daily/

SAPeople 2018 Children are Victims of Almost Half of All Rapes in South Africa – 46 Raped, 2 Murdered Daily https://www.sapeople.com/2018/05/16/children-are-victims-of-almost-half-of-all-rapes-cases-in-south-africa-46-raped-2-murdered-daily/ accessed 17 September 2018

Seeth 2017 https://city-press.news24.com/News/violence-against-children-a-national-disaster-20170529

Seeth A 2017 Violence against Children a 'National' Disaster https://city-press.news24.com/News/violence-against-children-a-national-disaster-20170529 accessed 17 September 2018

List of Abbreviations