NGCOBO J
desire to perform its duty to uphold the Constitution and to implement the provisions
of section 28(2) by providing appropriate remedies. The manner in which the court
set about providing these remedies, however, was not appropriate. The remedy lay,
not in attempting to recast the statute book, but in the proper interpretation and
implementation of the invalidated provisions. There was no legal basis for the orders
made by the High Court in paragraphs 12 and 13 of its order.
Supervisory order in paragraph 14
[187] The supervisory order in paragraph 14 of the order of the High Court was made
in order to give effect to the declaratory and mandatory orders. This is a matter to
which I shall return in a moment.
[188] For all these reasons, the High Court should not have made these orders in
paragraphs 8, 9, 10, 11, 12 and 13 of its order. These orders must accordingly be set
aside.
[189] That, however, is not the end of the matter. As pointed out above, the record
contains some disturbing information concerning the availability of intermediaries, the
adequacy of their training and the lack of court facilities for child complainants in
sexual offence cases. Indeed, grave concerns were expressed in the course of the
hearing in this Court over this situation.
This has serious consequences for the
protection that both section 28(2) of the Constitution and the child protection
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