NGCOBO J
[86] Section 170A(1) must be understood and construed in the context of section
170A as a whole, in particular, sections 170A(2) and 170A(3), which provide:
“(1)
Whenever criminal proceedings are pending before any court and it appears
to such court that it would expose any witness under the biological or mental
age of eighteen years to undue mental stress or suffering if he or she testifies
at such proceedings, the court may, subject to subsection (4), appoint a
competent person as an intermediary in order to enable such witness to give
his or her evidence through that intermediary.
(2)
(a)
No examination, cross-examination or re-examination of any witness
in respect of whom a court has appointed an intermediary under
subsection (1), except examination by the court, shall take place in
any manner other than through that intermediary.
(b)
The said intermediary may, unless the court directs otherwise,
convey the general purport of any question to the relevant witness.
(3)
If a court appoints an intermediary under subsection (1), the court may direct
that the relevant witness shall give his or her evidence at any place—
(a)
which is informally arranged to set that witness at ease;
(b)
which is so situated that any person whose presence may upset that
witness, is outside the sight and hearing of that witness; and
(c)
which enables the court and any person whose presence is necessary
at the relevant proceedings to see and hear, either directly or through
the medium of any electronic or other devices, that intermediary as
well as that witness during his or her testimony.”
[87] The provisions of section 170A(1) apply to all children who are witnesses in
criminal trials. These cases before us are concerned with the protection of child
complainants in sexual offence cases.
This judgment will therefore pay more
attention to these children.
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