NGCOBO J
equality, and the principles of accountability and responsiveness in our constitutional
democracy, cannot be gainsaid. These values should therefore be enforced unless it is
clear that the legislature has expressly or by necessary implication enacted that they
should not apply. For stronger reasons, this approach should apply when construing a
statutory provision in order to determine its constitutionality.
[159] Sections 158(5) and 170A(7) are capable of being read in a manner that is
consistent with the Constitution. It is that construction that must be preferred to any
other construction that would render the subsection unconstitutional.
These
subsections must be construed to require that a court must give reasons for refusing to
allow the use of CCTV or to appoint an intermediary in respect of children below 18
years of age, as the case may be.
[160] The fact that these subsections require the court to give reasons for refusing the
application for the use of a CCTV or the appointment of an intermediary in the case of
a child under the age of 14 years, as the case may be, does not in itself exclude the
need for reasons in the case of a refusal in respect of a child over the age of 14 years.
The issue is one of emphasis rather than one of exclusion. What the subsections
emphasise is that the younger the child, the more the need exists for protection.
Selecting the age of 14 years may perhaps be perceived to be arbitrary. So are all
choices relating to age.
This, however, does not detract from the fact that the
subsections recognise that younger children may need the protection more than older
children. As pointed out earlier, the protection that is given to children must be
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