NGCOBO J [149] Both sections 153(3) and 153(5) give the court discretion whether to hold the proceedings in camera. Section 153(3) applies to all complainants in offences involving any sexual offences or extortion, or any of the offences mentioned in the subsection. This includes a child complainant in a sexual offence case. This is of course subject to the provisions of section 153(3A) which requires the public to be excluded while a complainant in a sexual offence case is giving evidence. Section 153(5) applies to other child witnesses. The subsections are aimed at protecting the identity of the complainants in those offences. [150] The exercise of discretion is necessary in deciding whether to hold criminal proceedings in camera. As pointed out earlier, open justice requires that all criminal proceedings be held, and all witnesses testify, in open court. The decision whether proceedings should be held in camera involves the weighing up of competing interests, namely, on the one hand, the right to open justice and, on the other hand, protecting children and the identity of witnesses. Discretion is a tool which enables courts to mediate between these competing interests. [151] For all these reasons, the finding that the differentiation between a child accused, on the one hand, and child complainants or child witnesses, on the other hand, is irrational, cannot be sustained. Nor can the finding that sections 153(3) and 153(5) discriminate unfairly against child complainants and child witnesses be sustained. It follows therefore that sections 153(3) and 153(5) are not unconstitutional. 77

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