NGCOBO J
[121] However, discretion must be confined, structured and checked. This is the
function of the Constitution and the law.
[122] In Dawood, albeit in a different context, we held that discretion “permits
abstract and general rules to be applied to specific and particular circumstances in a
fair manner.”108 Judicial officers are provided with discretion to ensure that the
principles and values with which they work can be applied to the particular cases
before them in order to achieve substantive justice. Discretion is a flexible tool which
enables judicial officers to decide each case on its own merits. In the context of the
appointment of an intermediary, the conferral of judicial discretion is the recognition
of the existence of a wide range of factors that may or may not justify the appointment
of an intermediary in a particular case.
[123] What must be stressed here is that every child is unique and has his or her own
individual dignity, special needs and interests. And a child has a right to be treated
with dignity and compassion.109 This means that the child must “be treated in a caring
and sensitive manner.”110 This requires “taking into account [the child’s] personal
situation, and immediate needs, age, gender, disability and level of maturity”.111 In
short, “[e]very child should be treated as an individual with his or her own individual
108
Dawood and Another; Shalabi and Another; Thomas and Another v Minister of Home Affairs and Others
[2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at para 53.
109
Paras 10-4 of the Guidelines.
110
Para 10 of the Guidelines.
111
Id.
64
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