NGCOBO J
constitutional compatibility and potential amendment, adaptation or reinterpretation
to adapt them to constitutional imperatives, if necessary.”14
[17] He invited a wide-ranging number of non-governmental organisations to make
written submissions on these issues.15 The judgment of the High Court records that
“submissions were received from virtually all”16 those who were invited to make
submissions. The Centre for Child Law, Childline South Africa, Resources Aimed at
the Prevention of Child Abuse and Neglect (RAPCAN), Children First, Operation
Bobbi Bear, People Opposing Women Abuse (POWA) and the Cape Mental Health
Society featured as amici in the High Court and in this Court (they are referred to
collectively as the amici.) In addition, the High Court invited the Minister for Justice
and Constitutional Development (the Minister), the Minister for National Education,
the Minister for Safety and Security, the Minister for Social Development, the
Minister for Correctional Services, the Minister for Health and the Commissioner of
the South African Police Services to make written submissions. The Minister is the
only one who featured as a party in both the High Court and in this Court.
[18] As is apparent from the above, the High Court raised these issues of its own
accord. They were neither raised in the trial courts nor in the proceedings before the
High Court. After hearing argument, the High Court took the view that not all the
14
S v Albert Phaswane and Aaron Mokoena Case No CC192/2007, North Gauteng High Court, Pretoria, 14
August 2007, unreported.
15
These organisations are The Centre for Child Law; The Centre for the Study of Violence and Reconciliation;
The Tshwaranang Legal Advocacy Centre; People Opposed to Women Abuse; The Association of Regional
Magistrates of South Africa; The Child Welfare Society; the National Council of Traditional Leaders; Child
Line South Africa; the National Council of Religious Leaders of South Africa; BEE Court Wise; The Child
Witness Research and Training Institute, Grahamstown; The South African Human Rights Commission; The
Health Professions Council of South Africa; Molo Shongololo; and the Open Society Foundation.
16
Above n 14.
10
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