NGCOBO J
[38] In deciding these constitutional cases, the High Court held that before a court
can decide a constitutional issue, “it must be clear that the particular constitutional
question must arise from the facts of the case.”29 The High Court also referred to the
general principle that constitutional issues should not be decided prior to a decision on
factual issues or matters of law with which have no constitutional implication, “unless
the decision on the constitutional issue is necessary for a proper assessment of the
non-constitutional issues at stake.”30 It took the view that “the constitutional matters
[it had raised] needed to be decided before the questions of the correctness of the
convictions could be addressed.”31 And concluded that “[t]hese are several aspects of
the evidence given by the complainants and the manner in which such evidence was
given, that needed to be addressed before a final decision on the correctness of the
convictions could be pronounced.”32 In effect therefore the High Court found that the
correctness or otherwise of the conviction could not be decided without first deciding
the constitutional issues. In addition, it held that as the constitutional issues raised
were of relevance to matters in which child complainants and child witnesses are
29
Above n 10 at para 19.
30
Id at para 24; See also De Kock NO and Others v Van Rooyen 2005 (1) SA 1 (SCA).
31
Above n 10 at para 25.
32
Id at para 26. The High Court identified these as:
“(a)
Whether evidence that was given in a fashion that might be regarded as unconstitutional
should be received.
(b)
Whether the lengthy postponements had a telling effect upon the children's evidence.
(c)
Whether the conduct of the proceedings was constitutionally appropriate and, if not, what
remedy there might be—i.e. should the matter be remitted to the regional magistrate with an
instruction to re-hear the evidence of the complainant in the Phaswane matter through an
intermediary?
(d)
If not, could the evidence pass muster if it was held that it was tainted by unconstitutionality?”
20
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