NGCOBO J
[91] The combined effect of the lack of consistency amongst judicial officers on the
meaning of the phrase “undue mental stress or suffering” and the inconsistency with
which courts exercise this discretion has led to an inconsistent application of the
subsection by various courts across the country, with the consequent inconsistent
protection being afforded to child witnesses, so the argument went. In this regard, our
attention was drawn to the observation by the South African Law Reform
Commission that one of the practical difficulties experienced by the intermediary
system is the inconsistency with which the court’s discretion to appoint an
intermediary is exercised.92
[92] These contentions and the reasoning of the High Court require us to determine
the following four inter-related questions:
(a) What is the object of section 170A(1)?
(b) What is the proper meaning of the phrase “undue mental stress or
suffering”?
(c) Is the subsection capable of being implemented in a manner that is
consistent with the Constitution?
Despite all of this, the court refused the appointment of an intermediary holding that the crucial question is not
whether the child was mentally or emotionally fragile after the alleged rape, but what impact, if any, testifying
in court in the presence of the accused is likely to have upon her. What the court found significant was that the
psychiatrist did not say that the mere presence of the accused would bring about stress, although the court was
mindful of the psychiatrist’s evidence to the effect that testifying in the presence of the accused might very well
aggravate her distressed state. (at p 584). The court concluded that mere testifying about the alleged rape even
through an intermediary would prove extremely distressful to the child. It therefore concluded that there is very
little difference between her testifying through an intermediary and testifying in an open court. It accordingly
declined to appoint an intermediary.
92
South African Law Reform Commission Project 107 “Sexual Offences” Report: December 2002 at p 147.
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