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NGCOBO J [79] It is apparent from the CRC and the Guidelines that courts are required to apply the principle of best interests by considering how the child’s rights and interests are, or will be, affected by their decisions. The best interests of the child demand that children should be shielded from the trauma that may arise from giving evidence in criminal proceedings. Child complainants and witnesses should testify out of sight of the alleged perpetrator and in a child-friendly atmosphere. 77 This means that, where necessary, child witnesses should be assisted by professionals in giving their testimony in court. However, each child must be treated as a unique and valuable human being with his or her individual needs, wishes and feelings respected.78 Children must be treated with dignity and compassion.79 In my view, these considerations should also inform the principle that the best interests of the child are of paramount importance in all matters concerning the child as envisaged in section 28(2) of the Constitution. [80] It is within this constitutional context that the invalidated provisions must be understood and construed. [81] Before turning to consider the constitutionality of the invalidated provisions, there is one more matter to consider. Over the years, this Court has developed the proper approach to statutory interpretation that is inspired by section 39(2) of the 77 Para 30(d) and 31(b) of the Guidelines. 78 Para 11 of the Guidelines. 79 Para 10 of the Guidelines. 43

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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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