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NGCOBO J (a) The failure by the Minister for Justice and Constitutional Development to comply with the rules for the filing of the notice of appeal and the application for leave to appeal is condoned. (b) The appeal by the Minister for Justice and Constitutional Development is upheld. (c) The orders of invalidity made by the North Gauteng High Court, Pretoria in respect of sections 153(3) and (5), 158(5), 164(1) and 170A(1) and (7) of the Criminal Procedure Act 51 of 1977 are not confirmed. (d) The further orders that were made by the North Gauteng High Court, Pretoria in paragraphs 8–15 of its order are set aside. (e) The Director-General for the Department of Justice and Constitutional Development is required to submit a report to this Court by no later than 1 July 2009 setting out the following information: 1. A list of Regional Courts indicating how many intermediaries each Regional Court requires to meet its needs and how many intermediaries each Regional Court has. 2. If the Regional Courts do not have the number of intermediaries required to meet their needs, the steps which are being taken to ensure that each Regional Court has the number of intermediaries necessary to meet its needs. 105

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Director of Public Prosecutions v. Ministry for Justice and Constitutional Development & Ors, 2009

Cases

Country

Latitude: -31.005484474142992

Longitude: 23.460146846172638

Country (linked Cases): South Africa

Court location: South Africa: Transvaal

Court: South Africa: Constitutional Court, South Africa

Date of judgement: Apr 1, 2009

Complainant: Director of Public Prosecutions

Keywords

Defilement (Rape of children)
Rape
Right to dignity
Sexual assault
Sexual offences

Gender of victim

Female: Girl (under 18)

Gender of accused/perpetrator

Male: Man (18+)

Language: English

Summary: The Constitutional Court handed down judgment in a matter which the respondent sought confirmation of orders of constitutional invalidity made by the North Gauteng High Court, Pretoria in relation to provisions that deal with the testimony of child victims and child witnesses in sexual offence cases.

The High Court then declared some sections unconstitutional; the sections dealt with the discretion of a court to appoint intermediaries to assist children in testifying; children giving evidence in open court; the requirement that courts give reasons for the refusal to allow a child complainant below the age of 14 years to give evidence in a closed or non-public proceedings, the requirement that courts admonish children to speak the truth, so that their evidence is admissible, if they are found not to understand the nature and import of taking in an oath or affirmation.

The case also includes the applicants Phaswane and Mokoena, who were charged with the rape of a 13 year old and an 11 year old. Both men were convicted and sentenced to a minimum of life imprisonment prescribed by section 52(1) of the constitution.

The High Court judge raised the constitutional validity of certain provisions. He called upon the accused, the state and various non-governmental organizations that look after the interests of children, to submit written argument on the constitutionality of certain provisions.

In conclusion it held that sections declared unconstitutional were inconsistent with the constitution.

Primary Documents

South-Africa-Case-Constitutional-Court-Transvaal_vs_State-and-Another-No_3608-En.pdf
English
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Director of Public Prosecutions v. Ministry for Justice and Constitutional Development & Ors, 2009

Primary Documents

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