S v Mokoena, S v Phaswane (CC7/07, CC192/07) [2008] ZAGPHC 148; 2008 (2) SACR 216 (T); 2008 (5) SA 578 (T) (12 May 2008)

S v Mokoena, S v Phaswane (CC7/07, CC192/07) [2008] ZAGPHC 148; 2008 (2) SACR 216 (T); 2008 (5) SA 578 (T) (12 May 2008)

The court held that the current statutory framework and procedures governing child victims and witnesses in criminal trials are unconstitutional to the extent that they fail to give effect to the paramountcy of children's interests as required by section 28(2) of the Constitution. Discretionary provisions regarding the appointment of intermediaries, exclusion of the public, and use of electronic devices for testimony do not adequately protect children from secondary trauma, alienation, and systemic delays. The court declared sections 170A(1), 153(3) and (5), 158(5), and the proviso to 164(1) of the Criminal Procedure Act unconstitutional and ordered that they be read to mandate protection...

Citation
[2008] ZAGPHC 148
Parties
Applicant: The State; Respondent: Aaron Mokoena; Respondent: Albert Phaswane
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
12 May 2008
Case Number
CC7/07, CC192/07
Procedural Posture
Criminal Law / Judgment on Constitutional Issues Following Conviction and Referral for Sentence Confirmation
Outcome
Sections 170A(1), 153(3) and (5), 158(5), and the proviso to 164(1) of the Criminal Procedure Act are declared unconstitutional and must be read to mandate protection for child witnesses and complainants. Orders suspended pending Constitutional Court confirmation.
Judges
E. Bertelsmann
Legal Topics
Child Witnesses, Criminal Procedure Act, Section 28 Constitution, Intermediaries, Closed Court Proceedings, Speedy Trial
Criminal Law Constitutional Law Child Witnesses Criminal Procedure Act Section 28 Constitution Intermediaries Closed Court Proceedings Speedy Trial

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Parties

The State

Applicant

Aaron Mokoena

Respondent

Albert Phaswane

Respondent

Procedural Posture

Criminal Law / Judgment on Constitutional Issues Following Conviction and Referral for Sentence Confirmation

Legal Issues

  1. 1 Whether the provisions of the Criminal Procedure Act requiring child victims and witnesses to testify under oath or affirmation, without compulsory assistance by a counsellor or advisor, are compatible with section 28(2) of the Constitution.
  2. 2 Whether sections 52(2) and 52(3)(d) and (e) of the Criminal Law Amendment Act 105 of 1997 are compatible with section 28(2) of the Constitution, given the potential for repeated testimony and trauma for child victims.
  3. 3 Whether sections 153, 158, 164, and 170A of the Criminal Procedure Act, as applied, adequately protect the constitutional rights and interests of child victims and witnesses.

Ratio Decidendi

The court held that the current statutory framework and procedures governing child victims and witnesses in criminal trials are unconstitutional to the extent that they fail to give effect to the paramountcy of children's interests as required by section 28(2) of the Constitution. Discretionary provisions regarding the appointment of intermediaries, exclusion of the public, and use of electronic devices for testimony do not adequately protect children from secondary trauma, alienation, and systemic delays. The court declared sections 170A(1), 153(3) and (5), 158(5), and the proviso to 164(1) of the Criminal Procedure Act unconstitutional and ordered that they be read to mandate protection...

Court Disposition

Sections 170A(1), 153(3) and (5), 158(5), and the proviso to 164(1) of the Criminal Procedure Act are declared unconstitutional and must be read to mandate protection for child witnesses and complainants. Orders suspended pending Constitutional Court confirmation.

Orders

  • Section 170A(1) of the Criminal Procedure Act is declared unconstitutional; the court must appoint an intermediary for child witnesses unless cogent reasons are recorded.
  • Subsection 170A(7) is declared unconstitutional.