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Child law referred to ConCourt
12/05/2008 21:32 - (SA)
Pretoria - The criminal justice system needs to operate in a way that takes account of children's interests, a Pretoria High Court judge said on Monday.
Judge Eberhard Bertelsmann declared Section 170A(1) of the Criminal Procedure Act and several subsections of the act, which deal with children and the manner in which they testify in courts, unconstitutional and referred the matter to the Constitutional Court.
The judge, who presided in two child rape cases referred to the High Court for sentencing, ordered a wide-ranging investigation, and invited a wide range of government departments and children's rights organisations to make submissions to him on how child-crime victims and witnesses could be better protected.
"Children are vulnerable - the younger, the more so. This is especially true when a child is the complainant or a witness in a criminal trial," he said.
'Horrific proportions'
"The criminal procedure and the courts should administer the criminal justice system in such a fashion that children who are caught up in its workings are protected from further trauma and are treated with proper respect for their dignity and their unique status as vulnerable young human beings."
The judge emphasised that the incidence of child rape and sexual assault upon minors had reached "horrific proportions" and that there was an exceptionally low conviction rate in such cases.
He said the entire legal system was designed by adults for adults, including courts and court procedures.
In terms of the judge's ruling, the Criminal Procedure Act is to be amended to allow all children under 18 - whether they are complainants or witnesses in a criminal trial - as well as children under the mental age of 18 - to testify through intermediaries.
If not, the court would have to give good reasons why this was not done.
Other sections that were struck down, deal with in-camera proceedings, where the child was not always protected.
The stipulation that witnesses had to testify under oath was also struck down as many children did not understand this concept, or even the difference between a lie and the truth.
Criminal trials in which children were involved as complainants or witnesses must be given priority in the investigative and prosecution phases.
Electronic devices approved
These children also had a right to be assisted by an intermediary.
They should also make use of electronic devices such as closed-circuit television where resources permitted.
Court officials also should have adequate expertise to deal with children as witnesses or complainants.
In practice, this ruling may result in the creation of specialist courts for the prosecution of offences of a sexual nature.
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