NGCOBO J of the High Court in S v Stefaans89 where the court held that “undue connotes a degree of stress greater than the ordinary stress to which witnesses, including witnesses in complaints of offences, of a sexual nature are subject to.”90 [90] Second, it was submitted that giving a discretion to the judicial officers makes the appointment of the intermediary dependent upon how judicial officers exercise that discretion, and this adds to the inconsistency in the application of section 170A(1). The subsection is triggered by an application by the state, and, if the state does not apply its mind to the need for an intermediary, the subsection does not come into play, so the argument went. Even in those instances where the state applies and leads evidence, for example, by the mother that the child was emotionally and mentally fragile after the rape and expert evidence that testifying in the presence of the accused might very well aggravate the distressful state, the appointment of the intermediary is not guaranteed – it depends upon the discretion of the court which might refuse the appointment of an intermediary.91 89 1999 (1) SACR 182 (C). 90 Id at 188. Our attention was also drawn to a research study that was conducted in which two magistrates, who deal with sexual offences in Port Elizabeth were interviewed and gave different meanings of the phrase. (Muller & Tait “Little Witnesses: A Suggestion for Improving the Lot of Children in Court” (1999) 62 THRHR 241 at 245-6). One magistrate suggested that the phrase means “excessive emotional stress and intimidation.” It was submitted that this raised the bar too high and makes it almost impossible to meet the requirement of the section. Yet, another magistrate suggested that it means “stressful circumstances in which a minor has to testify amongst strangers in an intimidatory environment like a court of law and reveal intimate or violent conduct against her”(at 246). It was submitted that by contrast, this view lowers the bar and makes it possible for a child victim to testify through an intermediary as almost all child victims would fall within this definition of “undue mental stress or suffering”. 91 In this regard, our attention was drawn to the case of S v F 1999 (1) SACR 571 (C) in which the state applied for the appointment of an intermediary and in support of its application led the evidence of the mother of the child as well as a psychiatrist. The evidence of the mother of the child was to the effect that after the alleged rape, the child had become mentally and emotionally fragile. This evidence was corroborated to a significant extent by a psychiatrist who examined the child and expressed the opinion that the child was suffering from a partially unresolved post-traumatic stress disorder as a result of the rape. In addition, the psychiatrist expressed the opinion that testifying in an open court would have an adverse effect upon her psychiatric condition and that the procedures adopted for her to testify in court should be softened or mediated so as to assist her. 48