NGCOBO J
[131] If the objective of section 28(2) is not achieved, then the fault lies not in the
provision itself but in the manner in which it is interpreted and implemented. An
incorrect interpretation or implementation of a statute does not render the provisions
unconstitutional.
If the provisions are interpreted and implemented in an
unconstitutional manner, the solution lies 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, and are
protected as required by section 28(2) of the Constitution and section 170A(1) of the
CPA. In this context, judicial education in this area may be of vital importance given
our new constitutional dispensation and its ethos. So too is the training of prosecutors
and other officials who deal with victims of sexual offences, for prosecutors have a
special responsibility in relation to section 170A(1). This is so because the first
assessment on whether an intermediary is to be used is made by the prosecutor.
[132] For all these reasons, I conclude that section 170A(1) is not unconstitutional.
[133] It will be convenient to deal with section 170A(7) later when I deal with section
158(5) as these provisions raise similar issues.
Section 153(3) and (5)
[134] The relevant provisions of section 153 are subsections (3), (3A), (4) and (5).
These subsections provide:
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