NGCOBO J
“Section 39(2) of the Constitution contains an injunction on the interpretation of
legislation. It requires courts when interpreting any legislation to ‘promote the spirit,
purport and objects of the Bill of Rights.’ Consistent with this interpretive injunction,
where possible, legislation must be read in a manner that gives effect to the values of
our constitutional democracy. These values include human dignity, equality and
freedom. Thus where legislation is capable of more than one plausible construction,
the one which brings the legislation within constitutional bounds must be
preferred.”82
[84] We cautioned, however, that an interpretation that seeks to bring a provision
within constitutional bounds should not be unduly strained.83 With this caution in
mind, we held that courts “must prefer the interpretation of [a provision] that will
bring it within constitutional bounds over those that do not”, and added “provided that
such an interpretation can be reasonably ascribed to the section.”84 The invalidated
provisions must therefore be construed consistently with section 28(2) and thus, where
possible, interpreted so as to exclude a construction that would be inconsistent with
the principle of the best interests of the child.
[85] With this approach in mind, I now turn to consider the invalidated provisions.
It will be convenient to deal with section 170A(1) first in view of its central role in the
protection of child witnesses and the number of inter-related issues that it raises.
Section 170A(1)
82
Above n 27 at para 43.
83
Hyundai above n 80 at para 24 and Daniels above n 27 at para 46.
84
Hyundai above n 80 at para 23 and Daniels above n 27 at para 46.
45
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents