NGCOBO J [88] The High Court held that section 28(2) “demands that a child should be exposed to as little stress and mental anguish as possible”.85 It found that the requirement of “undue” stress or suffering in section 170A(1) demands “an extraordinary measure of stress or anguish before the assistance of an intermediary can be called upon.”86 The court reasoned that the subsection therefore requires that the child witness should first be exposed to “undue” stress or suffering before an intermediary may be appointed.87 This requirement places a limitation upon the best interests of the child that is neither rational nor justifiable, the High Court found. It held that this constitutes discrimination against the child and also infringes the child witnesses’ right to equal treatment, dignity and to a fair trial. It therefore concluded that the subsection is inconsistent with section 28(2).88 [89] While supporting this reasoning of the High Court, the DPP and the amici directed their attack at the absence of the definition of the phrase “undue mental stress or suffering” in the legislation, and the discretion given to the judicial officers whether or not to appoint an intermediary. Three inter-related arguments were advanced in this regard. First, the absence of a definition of the phrase has resulted in inconsistency in the meaning given to the phrase, with some courts placing a narrow meaning on the phrase and thereby denying the child complainant the protection contemplated in the subsection. In this regard, they drew our attention to the decision 85 Above n 10 at para 78. 86 Id at para 79. 87 Id. 88 Id at paras 79-80. 47