NGCOBO J
NGCOBO J:
Introduction
[1]
Until recently, the law did not pay much attention to the stress that child
complainants in sexual offence cases suffer when they testify in courts.1
Child
complainants in sexual offence cases were required to relive the horror of the crime in
open court. The circumstances under which they gave evidence and the mental stress
or suffering they went through while giving evidence did not appear to be the concern
of the law. And, at times, they were subjected to the most brutal and humiliating
treatment by being asked to relate the sordid details of the traumatic experiences that
they had gone through. Regrettably, although there were welcome exceptions, the
plight of child complainants was seldom the concern of those who required them to
testify or those before whom they testified.
[2]
The advent of our constitutional democracy must change all of that. Our
constitutional democracy seeks to transform our legal system. Its foundational values
of human dignity, the achievement of equality and the advancement of human rights
and freedoms, introduce a new ethos that should permeate our legal system.
Consistently with these values, section 28(2) of the Constitution requires that in all
matters concerning a child, the child’s best interests must be of paramount
importance.2 Recently, the Criminal Law (Sexual Offences and Related Matters)
1
In 1991, the Criminal Law Amendment Act 135 of 1991 amended the Criminal Procedure Act 51 of 1977 by
introducing section 170A which allows children to testify through intermediaries. Section 170A commenced on
30 July 1993.
2
Section 28(2) provides:
2