CCT36/08

[2009] ZACC 8

2009 (4) SA 222 (CC)

2009 (2) SACR 130 (CC)

2009 (7) BCLR 637 (CC)

Ngcobo J

6 November 2008

1 April 2009

http://hdl.handle.net/20.500.12144/3549

Application to the CC for confirmation of orders of constitutional invalidity made by the High Court. Earlier judgments are: S v Mokoena 2008 (5) SA 578 (T); S v Albert Phaswane and Aaron Mokoena Case No CC192/2007, North Gauteng High Court, Pretoria, 14 August 2007, unreported and S v A Mokoena and A Phaswane Case No CC7/07, North Gauteng High Court, Pretoria, 24 October 2008, unreported.

Application for confirmation of the invalidity of sections 153(3) and (5), 158(5), 164(1) 170A(1) and (7) of the Criminal Procedure Act 51 of 1977 regarding the testimony of child witnesses in open court. The constitutional validity of these provisions was raised by the High Court on its own initiative. This Court held that a High Court is entitled to raise a constitutional issue of its own accord if the issue stemmed from the facts of the case, and a decision on the constitutional issue was necessary to decide the case. Court took notice that a child complainant of abusive sexual acts will in many cases experience undue stress or suffering by testifying in open court. Yet, the Court held that there is nothing to prevent all of the impugned provisions from being applied in a manner that properly protects the interests of the child. Therefore the High Court?s order of invalidity was not confirmed and High Court order set aside. Court ordered the Department of Justice and Constitutional Development to provide the Court with a report with various finding regarding a list of regional courts, how many intermediaries they have, the services available to the intermediaries and the like. Skweyiya J wrote a separate concurring judgment. Majority: Ngcobo J (Langa CJ, Moseneke DCJ, Mokgoro J, O?Regan J, Sachs J, Van der Westhuizen J and Yacoob J concurring) Minority: Skweyiya J