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S V Mnisi (Rh138/2005, A453/09) [2009] ZAGPPHC 339 (27 May 2009)
The High Court refused a premature special review of incomplete criminal proceedings and remitted the rape case to the trial court for finalization.
The invalidated provisions of the Criminal Procedure Act, properly construed in light of section 28(2) of the Constitution, are not inconsistent with the Constitution. The High Court’s declaration of invalidity and its further declaratory, mandatory and supervisory orders were therefore set aside. Because the core child-protection concern lay in implementation rather than invalidity, the Court issued a limited information-producing supervisory order to assess availability of intermediaries and child-friendly facilities.
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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)…
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