NGCOBO J
the judicial officer had admonished him or her to speak. This may put the child to an
unfortunate choice: either testify and risk the accused carrying out his or her threat, or
say nothing. In these circumstances, it would not be surprising for the child to refuse
to testify.
[104] If the child decides to speak, then the prosecutor will take him or her through
his or her evidence. The questioning of a child requires special skills, similar to those
required to run day care centres or to teach younger children. Questioning a child in
court is no exception: it requires a skill. Regrettably, not all of our prosecutors are
adequately trained in this area, although quite a few have developed the necessary
understanding and skill to question children in the court room environment. If the
questioning by the prosecutor is not skilled, the result is what happened in the
Phaswane matter. The following exchange between the prosecutor and the interpreter
illustrates the point:
“PROSECUTOR: What did you mean when you said that he had slept with you?
– He had raped me.
What do you mean with rape, we must know what you understand under
rape?
– Yes I personally do not know what rape is, I heard from people who say that there
is a thing called rape.
Okay but we need to know what happened, you were tripped and then you
fell on the ground and he took out a condom. We must know why do you say you
have been raped, what did he do to you?
– Rape is sexual intercourse.
What is sexual intercourse?
– Sexual intercourse is when one person has sex with another person.
But we do not know what that means, we need to know what you think what
happened, not what you think. You must tells us why do you say that you have been
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