NGCOBO J [91] The combined effect of the lack of consistency amongst judicial officers on the meaning of the phrase “undue mental stress or suffering” and the inconsistency with which courts exercise this discretion has led to an inconsistent application of the subsection by various courts across the country, with the consequent inconsistent protection being afforded to child witnesses, so the argument went. In this regard, our attention was drawn to the observation by the South African Law Reform Commission that one of the practical difficulties experienced by the intermediary system is the inconsistency with which the court’s discretion to appoint an intermediary is exercised.92 [92] These contentions and the reasoning of the High Court require us to determine the following four inter-related questions: (a) What is the object of section 170A(1)? (b) What is the proper meaning of the phrase “undue mental stress or suffering”? (c) Is the subsection capable of being implemented in a manner that is consistent with the Constitution? Despite all of this, the court refused the appointment of an intermediary holding that the crucial question is not whether the child was mentally or emotionally fragile after the alleged rape, but what impact, if any, testifying in court in the presence of the accused is likely to have upon her. What the court found significant was that the psychiatrist did not say that the mere presence of the accused would bring about stress, although the court was mindful of the psychiatrist’s evidence to the effect that testifying in the presence of the accused might very well aggravate her distressed state. (at p 584). The court concluded that mere testifying about the alleged rape even through an intermediary would prove extremely distressful to the child. It therefore concluded that there is very little difference between her testifying through an intermediary and testifying in an open court. It accordingly declined to appoint an intermediary. 92 South African Law Reform Commission Project 107 “Sexual Offences” Report: December 2002 at p 147. 49