SKWEYIYA J lower court to resolve live disputes was neglected – not only to the detriment of the administration of justice but also arguably to the detriment of the two accused and the complainants in those cases, something which I address in greater detail below.17 [228] The separation of powers concerns extend further. Five of the six sections declared unconstitutional by the High Court, namely sections 153(3), 158(5), 164(1), 170A(1) and (7), were in bill form at the time the two criminal trials commenced. This much was acknowledged by the High Court.18 However, the appointment of intermediaries forms the core of section 170A(1) and was (i) implicated on the facts of the Phaswane matter; (ii) on the statute books at the time of the offence; and (iii) not altered by the proposed amendment.19 It would therefore be formalistic to hold that the provision was improperly raised. [229] For these reasons, the concerns outlined in this judgment do not apply to section 170A(1) to the same extent as they do in respect of the improperly raised provisions. Consequently, I am in agreement with Ngcobo J that the interests of justice require that we evaluate the constitutionality of this provision. Furthermore, because Ngcobo J’s analysis is limited to the unamended core of section 170A(1), and because I am persuaded by his evaluation of that section, I concur in his conclusion that section 170A(1) is not unconstitutional. 17 At [237]-[241]. 18 S v Mokoena 2008 (5) SA 578 (T) at paras 71-4. 19 The bill, which was eventually enacted as the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, added only three words to section 170A(1). Specifically, it allowed judicial officers to appoint intermediaries not only to assist child victims but also to assist victims under the “biological or mental” age of 18 years. Because the child victim in the Phaswane matter was only 13 years old when she testified, the new text could not have applied on the facts of the case. 115