NGCOBO J
whether it was appropriate for this Court to investigate whether the procedures set out
for the enactment of a constitutional amendment were complied with. We held that
“where, on the papers before it, there is doubt as to whether a particular law or
conduct is consistent with the Constitution, this Court may be obliged to investigate
the matter.”147 And we added that “[t]his would be particularly so where . . . an
important constitutional issue is involved.”148 O’Regan J, concurring, emphasised that
“[i]t is this Court’s constitutional task to ensure that the Constitution is upheld.”149
We concluded that it was in the interests of justice to investigate the issue.150
[200] The constitutional issues at stake here concern children who are complainants
of sexual offences. They are some of the most vulnerable members of society. They
are not parties to the proceedings, but they have constitutional rights: the right to have
their best interests to be considered is of paramount importance in matters concerning
them. Their status as non-parties severely limits, if not eliminates, their ability to
vindicate their rights in those proceedings where they are called upon to testify. This
makes them doubly vulnerable. They have to depend, for the vindication of their
rights, on others including courts before whom they testify. The constitutional issues
at stake here are therefore important, and affect the administration of justice. Their
resolution may not have an impact on the child who testified without the aid of an
intermediary in the Phaswane matter, but it will have an impact on many others whose
147
Matatiele 1 above n 25 at para 68.
148
Id.
149
Id at para 90.
150
Id at para 68.
100
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