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NGCOBO J Amendment Act3 (the Sexual Offences Amendment Act) introduced certain amendments to the Criminal Procedure Act4 (the CPA). The amendments that are relevant to these proceedings are those that concern the protection to be given to child complainants when giving evidence in criminal proceedings involving sexual offences. [3] The central question presented in these consolidated cases is whether the provisions of the CPA that concern the protection to be given to child complainants in criminal proceedings involving sexual offences provide protection consistently with section 28(2) of the Constitution. In particular, the question presented is whether the provisions of sections 153(3) and (5) (proceedings in camera),5 158(5), (the duty to give reasons for refusing to allow a child to give evidence by means of closed circuit television),6 164(1) (testifying without taking an oath or the affirmation), 7 170A(1) (testifying through an intermediary)8 and (7) (the duty to give reasons for refusing to appoint an intermediary)9 of the CPA are consistent with section 28(2) of the Constitution. These provisions will be referred to collectively as the invalidated provisions. This is an important constitutional question for it concerns persons who “A child’s best interests are of paramount importance in every matter concerning the child.” 3 Act 32 of 2007. 4 Act 51 of 1977. 5 See [134] below. 6 See [152] below. 7 See [163] below. 8 See [86] below. 9 See [153] below. 3

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Director of Public Prosecutions v. Ministry for Justice and Constitutional Development & Ors, 2009

Cases

Country

Latitude: -31.005484474142992

Longitude: 23.460146846172638

Country (linked Cases): South Africa

Court location: South Africa: Transvaal

Court: South Africa: Constitutional Court, South Africa

Date of judgement: Apr 1, 2009

Complainant: Director of Public Prosecutions

Keywords

Defilement (Rape of children)
Rape
Right to dignity
Sexual assault
Sexual offences

Gender of victim

Female: Girl (under 18)

Gender of accused/perpetrator

Male: Man (18+)

Language: English

Summary: The Constitutional Court handed down judgment in a matter which the respondent sought confirmation of orders of constitutional invalidity made by the North Gauteng High Court, Pretoria in relation to provisions that deal with the testimony of child victims and child witnesses in sexual offence cases.

The High Court then declared some sections unconstitutional; the sections dealt with the discretion of a court to appoint intermediaries to assist children in testifying; children giving evidence in open court; the requirement that courts give reasons for the refusal to allow a child complainant below the age of 14 years to give evidence in a closed or non-public proceedings, the requirement that courts admonish children to speak the truth, so that their evidence is admissible, if they are found not to understand the nature and import of taking in an oath or affirmation.

The case also includes the applicants Phaswane and Mokoena, who were charged with the rape of a 13 year old and an 11 year old. Both men were convicted and sentenced to a minimum of life imprisonment prescribed by section 52(1) of the constitution.

The High Court judge raised the constitutional validity of certain provisions. He called upon the accused, the state and various non-governmental organizations that look after the interests of children, to submit written argument on the constitutionality of certain provisions.

In conclusion it held that sections declared unconstitutional were inconsistent with the constitution.

Primary Documents

South-Africa-Case-Constitutional-Court-Transvaal_vs_State-and-Another-No_3608-En.pdf
English
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Director of Public Prosecutions v. Ministry for Justice and Constitutional Development & Ors, 2009

Primary Documents

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