NGCOBO J
integrity and skill will be vital in ensuring both that innocent people are not wrongly
convicted and that guilty people are properly held to account.
[169] The conclusion by the High Court that the proviso to section 164(1) violates
section 28(2) of the Constitution cannot, therefore, be sustained.
Conclusion on orders of invalidity
[170] I conclude, therefore, that properly construed, the invalidated provisions are not
inconsistent with the Constitution. It follows that the orders of invalidity cannot be
confirmed.
[171] What now remains to be considered is whether the declaratory, mandatory and
supervisory orders made by the High Court should be set aside as contended for by the
Minister.
Declaratory orders in paragraphs 8–10
[172] In addition to orders of invalidity, the High Court made further declaratory
orders in paragraphs 8–10 of its order. 125 These related to priority to be given in the
125
Paragraphs 8–10 of the order provide:
“8. It is declared that criminal trials in which children are involved as complainants or
witnesses must, in terms of section 28(2) of the Constitution, be given as much priority in
the investigative and prosecution phases as the available resources permit;
9.
It is declared that children who appear as complainants or witnesses in criminal trials
have the right, in terms of section 28(2) of the Constitution, to be assisted by an
intermediary and to make use of electronic devices such as closed circuit television while
giving evidence to the extent that available resources permit;
10. It is declared that children who are involved as complainants and witnesses in criminal
trials are entitled to have these trials conducted by presiding officers, prosecutors, court
86
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents