NGCOBO J
appointment of an intermediary where the state does not raise the issue.100
If
necessary, the presiding judicial officer must initiate an enquiry into the desirability of
appointing an intermediary.
[113] What must be stressed here are two points already made: first, that the
provisions of sections 170A(1) and 170A(3) were enacted to protect the child from the
stress and trauma that may arise from testifying in court. The second is that section
28(2) is an injunction to courts to apply the principle that the best interests of the child
are of paramount importance in all matters concerning the child. It is incumbent upon
all those who are responsible for the administration of justice to apply the principles of
our criminal law and criminal procedure so as to protect child complainants in sexual
offence cases from secondary trauma that may arise from testifying in court. Judicial
officers are therefore obliged to apply the best interests principle by considering how
the child’s rights and interests are, or will be, affected by allowing the child
complainant in a sexual offence case to testify without the aid of the intermediary. It
follows from this, therefore, that where the prosecutor does not raise the matter, the
judicial officer must, of his or her own accord, raise the need for an intermediary to
assist the child complainant in a sexual offence case in giving his or her testimony.101
[114] Properly construed, therefore, section 170A(1) read with section 170A(3)
contemplates that in every trial in which a child is to testify, the court will enquire into
100
Above n 63.
101
According to para 19(e) of the Guidelines, a court is obliged to draw the attention of the parent or guardian of
the child victim to the availability of protective measures.
60
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