NGCOBO J
perpetrator and testifying with the assistance of a professional, such as an
intermediary.
[99] The meaning of the phrase “undue mental stress or suffering”, and the manner
in which discretion conferred by the subsection must be exercised, must be informed
by the objective of section 170A(1) identified above. The question is whether the
subsection is capable of being interpreted and applied so as to achieve this objective.
If the subsection is capable of a reasonable interpretation that will bring it within
constitutional bounds, that interpretation should be preferred over an interpretation
which will not.
The meaning of the phrase “undue mental stress or suffering”
[100] The CPA does not define the phrase “undue mental stress or suffering.” The
meaning of the phrase must therefore be understood in the context of the objective of
section 170A(1), as informed by section 28(2) of the Constitution, and the atmosphere
in which a child testifies in court. That objective is, as I have pointed out above, to
protect children from undue mental stress or suffering that may be caused by
testifying in court.
[101] A court operates in an atmosphere which is intended to be imposing. It is an
atmosphere which is foreign to a child. The child sits alone in the witness stand, away
from supportive relatives such as a parent. The child has to testify in the presence of
the alleged abuser and other strangers including the presiding judicial officer, the
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