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NGCOBO J [8] The Director of Public Prosecutions, Pretoria (the DPP), who is supported by various amici, is seeking the confirmation of the orders of invalidity. The Minister is opposing the confirmation of those orders. The Minister is also appealing against both the orders of invalidity and the declaratory and supervisory orders. Both the amici and the DPP support the declaratory and supervisory orders. Mr Phaswane and Mr Mokoena are only opposing the confirmation of the order of invalidity as it relates to sections 170A(1) and (7) and 158(5) to the extent that it may negatively impact on their appeal. They are also appealing against the orders of invalidity 8in relation to sections 170A(1) and (7) and 158(5). They support the confirmation of the other orders. [9] With this prelude, I now turn to the facts. Factual background [10] Mr Phaswane was charged in the regional court, sitting at Pretoria North, with the rape of a 13 year old girl. She was the younger sister of the woman that Mr Phaswane was living with as his wife. The alleged rape occurred on 29 January 2005. After a number of postponements, the trial eventually got underway on 3 March 2006. Mr Phaswane pleaded not guilty. The child gave her evidence in camera. She testified without the assistance of an intermediary, nor through the aid of closed circuit television (CCTV) or a similar device. 6

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Director of Public Prosecutions v. Ministry for Justice and Constitutional Development & Ors, 2009

Cases

Country

Latitude: -31.005484474142992

Longitude: 23.460146846172638

Country (linked Cases): South Africa

Court location: South Africa: Transvaal

Court: South Africa: Constitutional Court, South Africa

Date of judgement: Apr 1, 2009

Complainant: Director of Public Prosecutions

Keywords

Defilement (Rape of children)
Rape
Right to dignity
Sexual assault
Sexual offences

Gender of victim

Female: Girl (under 18)

Gender of accused/perpetrator

Male: Man (18+)

Language: English

Summary: The Constitutional Court handed down judgment in a matter which the respondent sought confirmation of orders of constitutional invalidity made by the North Gauteng High Court, Pretoria in relation to provisions that deal with the testimony of child victims and child witnesses in sexual offence cases.

The High Court then declared some sections unconstitutional; the sections dealt with the discretion of a court to appoint intermediaries to assist children in testifying; children giving evidence in open court; the requirement that courts give reasons for the refusal to allow a child complainant below the age of 14 years to give evidence in a closed or non-public proceedings, the requirement that courts admonish children to speak the truth, so that their evidence is admissible, if they are found not to understand the nature and import of taking in an oath or affirmation.

The case also includes the applicants Phaswane and Mokoena, who were charged with the rape of a 13 year old and an 11 year old. Both men were convicted and sentenced to a minimum of life imprisonment prescribed by section 52(1) of the constitution.

The High Court judge raised the constitutional validity of certain provisions. He called upon the accused, the state and various non-governmental organizations that look after the interests of children, to submit written argument on the constitutionality of certain provisions.

In conclusion it held that sections declared unconstitutional were inconsistent with the constitution.

Primary Documents

South-Africa-Case-Constitutional-Court-Transvaal_vs_State-and-Another-No_3608-En.pdf
English
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Director of Public Prosecutions v. Ministry for Justice and Constitutional Development & Ors, 2009

Primary Documents

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