NGCOBO J
psychological well-being of the child complainant as the original abusive act was.
Indeed, High Courts have come to accept that the giving of evidence in cases
involving sexual offences exposes complainants “to further trauma possibly as severe
as the trauma caused by the crime.”99 It is precisely this secondary trauma that section
170A(1) seeks to prevent.
[109] Having regard to this, it must be accepted that a child complainant in a sexual
offence who testifies without the assistance of an intermediary faces a high risk of
exposure to undue mental stress or suffering. The object of section 170A(1) read with
section 170A(3) is precisely to prevent this risk of exposure. It does this by making
provision for the child to testify through the intermediary away from the accused and
in a child-friendly room.
Thus construed, the problem becomes one of
implementation as the cases to which our attention is drawn demonstrate.
Implementation of section 170A(1)
[110] Contrary to the reasoning of the High Court and the submissions of the amici,
the subsection does not require that the child first be exposed to undue mental stress or
suffering before the provision may be invoked. As I have held above, the object of the
subsection is to prevent the child from being exposed to undue mental stress or
suffering as a result of testifying in court. A construction of the subsection that
requires the child to be exposed to undue mental stress or suffering first, before an
intermediary may be appointed, is therefore inimical to the objectives of the both
99
Above n 89 at 187F-G; K v The Regional Court Magistrate NO and Others 1996 (1) SACR 434 (E) at 442C443F; See also S v Manqaba 2005 (2) SACR 489 (W) at paras 30-1.
58
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents