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NGCOBO J 3. A list of Regional Courts indicating which of them has the following facilities contemplated in section 170A(3) of the CPA: (i) separate rooms from which children may testify; (ii) closed circuit television facilities; and (iii) one-way mirrors. 4. To the extent that there are Regional Courts that do not have all the facilities in subparagraph 3 of this order, the steps which are being taken to provide these facilities to these Regional Courts. (f) The report contemplated in paragraph (e) of this order must be served on each of the amici and the National Director of Public Prosecutions, who, if so advised, may comment on the report by no later than 3 August 2009. (g) Further directions dealing with, among other matters, argument or supervision of the execution of paragraph (e) of this order, as circumstances may require, may be issued. Langa CJ, Moseneke DCJ, Mokgoro J, O’Regan J, Sachs J, Van der Westhuizen J and Yacoob J concur in the judgment of Ngcobo J. 106

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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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