NGCOBO J
cases are pending in courts and those who will fall complainants of sexual abuse in the
future.
[201] The record suggests a disturbing inconsistency between the promises that the
laws make and the implementation of the laws. Compliance with the Constitution
requires not only that laws be enacted to give effect to the rights in the Constitution,
but also requires that these laws be implemented. Failure to implement laws that
protect constitutional rights is a violation of the Constitution.
[202] Here Parliament has made laws to protect child complainants from undue
mental stress or suffering that may result from testifying in court. To this end,
sections 170A(1) and 170A(3) promise child complainants protective measures such
as the appointment of an intermediary and the creation of child-friendly courts. But
the subsections also contemplate that the state will commit the necessary resources in
order to achieve the objects of the subsections consistently with section 28(2) of the
Constitution and give effect to sections 170A(1) and 170A(3). The non-availability of
these measures contemplated in the CPA is not only a breach of the relevant
provisions of the CPA, but it is indeed a breach of the Constitution.
[203] As pointed out earlier, under sections 38 and 172(1)(b) of the Constitution, this
Court has wide powers to make an order that is just and equitable and afford
appropriate relief. As the facts set out above amply demonstrate, the rights of child
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