NGCOBO J
the age of the complainant and the nature of the offence. Section 153(3) was not
engaged. Nor was section 153(5) engaged as the child was not a child witness, but a
child complainant in a sexual offence case. The same goes for the CCTV provision
(section 158(5)). When the complainant testified, she was 13 years old. No request
was made by the state for her to give evidence through the aid of a CCTV or similar
device, and there was therefore no refusal of any application in terms of section
158(5). In any event, had section 158(5) been in operation at the time, it would have
required reasons to be given immediately in respect of this complainant.
[53] In addition, there is much to be said for the further argument advanced on
behalf of the Minister that some of the sections that were considered by the High
Court were not yet in operation at the time of the trial and, therefore, they could not
have been relevant to the proceedings. The Sexual Offences Amendment Act effected
certain amendments to some of the sections in issue in these cases.
It added
subsection (5) to section 158; substituted subsection (3) in section 153; substituted
subsection (1) in section 164; substituted subsection (1) in section 170A; and added
subsection (7) to section 170A. The effect of the amendment to subsection 170A(1)
was to insert the words “biological or mental” before the words “age of eighteen
years.”
[54] The Sexual Offences Amendment Act was signed into law on 13 December
2007 but came into operation on 16 December 2007.44 Therefore, sections 153(3),
44
Above n 3.
28
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