NGCOBO J
[149] Both sections 153(3) and 153(5) give the court discretion whether to hold the
proceedings in camera.
Section 153(3) applies to all complainants in offences
involving any sexual offences or extortion, or any of the offences mentioned in the
subsection. This includes a child complainant in a sexual offence case. This is of
course subject to the provisions of section 153(3A) which requires the public to be
excluded while a complainant in a sexual offence case is giving evidence. Section
153(5) applies to other child witnesses. The subsections are aimed at protecting the
identity of the complainants in those offences.
[150] The exercise of discretion is necessary in deciding whether to hold criminal
proceedings in camera. As pointed out earlier, open justice requires that all criminal
proceedings be held, and all witnesses testify, in open court. The decision whether
proceedings should be held in camera involves the weighing up of competing
interests, namely, on the one hand, the right to open justice and, on the other hand,
protecting children and the identity of witnesses. Discretion is a tool which enables
courts to mediate between these competing interests.
[151] For all these reasons, the finding that the differentiation between a child
accused, on the one hand, and child complainants or child witnesses, on the other
hand, is irrational, cannot be sustained. Nor can the finding that sections 153(3) and
153(5) discriminate unfairly against child complainants and child witnesses be
sustained.
It follows therefore that sections 153(3) and 153(5) are not
unconstitutional.
77
Sélectionner le paragraphe cible3
Se connecter à un paragraphe
Connect to an entity
Disable highlights
Ajouter à la table des matières