NGCOBO J
vi) Section 170A(7)?
(e) Was it appropriate for the High Court to make the declaratory and
supervisory orders?
(f) Given the concerns raised by the factual material presented by the DPP
and the amici about the proper implementation of the provisions of the
CPA that provide protection to child complainants, should this Court
investigate these concerns, and if found to be valid, should a supervisory
order be issued?
[32] I deal with these issues in turn.
May a court raise, of its own accord, a constitutional issue?
[33] The High Court took the view that it is entitled to raise a constitutional issue of
its own accord and referred to our decision in Potgieter.19 In that case, the High
Court, of its own accord, raised the constitutionality of a statutory provision and
thereafter declared it invalid. This Court, without commenting on the power of the
High Court to raise a constitutional issue of its own accord, confirmed the order of
invalidity. All the parties relied on this case too and approached the matter on the
footing that the High Court was entitled to raise on its own a constitutional issue. In
the light of the facts and circumstances of these cases, it is desirable to consider the
question in some detail.
19
Potgieter v Die Lid van die Uitvoerende Raad: Gesondheid Provinsiale Regering Gauteng en Andere [2001]
ZACC 4; 2001 (11) BCLR 1175 (CC); S v Williams [1995] ZACC 6; 1995 (3) SA 632 (CC); 1995 (7) BCLR
861 (CC).
17
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents