NGCOBO J
needs, wishes and feelings.” 112 Sensitivity requires the child’s individual needs and
views to be taken into account.113
The exercise of judicial discretion in the
appointment of an intermediary allows a judicial officer to assess “the individual
needs, wishes and feelings” of each child. This, in my view, conforms to the principle
that the best interests of the child must be of paramount importance in matters
concerning the child.
[124] In a matter involving a child, the conferral of judicial discretion enables courts,
on a case-by-case basis, to determine whether the services of an intermediary are
required. What must be emphasized is that section 170A(1) deals with witnesses
generally who are under the age of 18 years. This includes complainants in sexual
offence cases, child witnesses to sexual offence cases and witnesses to other offences
generally.
The nature of the evidence that the witnesses contemplated in the
subsection will give, will therefore vary according to the offence in respect of which
they testify.
So too will the stress of giving the evidence.
This variation will
invariably influence the necessity or otherwise of appointing an intermediary. Other
factors that are relevant include the level of maturity of the child, the age of the child,
the nature of the offence, the independence of the child and the feelings and wishes of
the child.
[125] A child who is 17 years old who is outspoken and assertive may consider it an
affront to his or her dignity to suggest that he or she should testify through an
112
Para 11 of the Guidelines.
113
Para 9(d) of the Guidelines.
65
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