Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development and Others

Two accused (Phaswane and Mokoena) were convicted of raping child complainants in regional courts. Both matters were referred to the High Court for sentencing. The High Court judge, of his own accord, raised constitutional issues concerning various provisions of the CPA relating to the protection of child complainants and witnesses in sexual offence cases. The High Court declared sections 153(3) and (5), 158(5), 164(1), 170A(1) and (7) of the CPA invalid as inconsistent with section 28(2) of the Constitution, and made further declaratory and supervisory orders. The matter came before the Constitutional Court for confirmation of the orders of invalidity. The child complainant in Phaswane's case testified in open court without an intermediary. In Mokoena's case, an application was made for an intermediary, which was granted, and the child testified through an intermediary.

• Whether a court may raise a constitutional issue of its own accord, and in what circumstances
• Whether it was appropriate for the High Court to raise constitutional issues that did not arise on the facts of the cases
• Whether this Court should confirm orders of invalidity in respect of provisions that were not properly raised
• Whether sections 153(3) and (5), 158(5), 164(1), 170A(1) and (7) of the CPA are inconsistent with section 28(2) of the Constitution
• The proper interpretation of section 170A(1) and the phrase 'undue mental stress or suffering'
• Whether the High Court's declaratory and supervisory orders were appropriate
• Whether this Court should investigate concerns about the implementation of protective measures for child complainants

The orders of invalidity made by the High Court were not confirmed. The declaratory and supervisory orders made by the High Court were set aside. The Director-General for the Department of Justice and Constitutional Development was ordered to submit a report to the Constitutional Court detailing: the number of intermediaries required and available at each Regional Court; steps being taken to ensure adequate numbers of intermediaries; the facilities available at Regional Courts (separate rooms, CCTV, one-way mirrors); and steps being taken to provide necessary facilities. The report was to be submitted by 1 July 2009, with the National Director of Public Prosecutions and amici given until 3 August 2009 to comment. The Minister's appeal was upheld and condonation was granted for the late filing of the appeal and application for leave to appeal.

Section 170A(1) of the CPA, properly construed in light of section 28(2) of the Constitution, requires that in every trial involving a child complainant in a sexual offence case, the court must enquire into the desirability of appointing an intermediary, even where the state does not raise the issue. The phrase 'undue mental stress or suffering' does not require a child to first be exposed to such stress; rather, the provision is designed to prevent such exposure. The discretion given to judicial officers whether to appoint an intermediary is not unconstitutional, as it allows for consideration of each child's individual circumstances and needs. Similarly, sections 153(3) and (5), 158(5), 164(1), and 170A(7) of the CPA, when properly interpreted in conformity with section 28(2), are not unconstitutional. Courts may raise constitutional issues of their own accord where the issue arises on the facts and is necessary for determination of the case, or where it is in the interests of justice to do so. However, the interests of justice will generally not require this Court to confirm orders of invalidity where the High Court improperly raised constitutional issues that had no bearing on the resolution of the cases before it.

The judgment contains extensive obiter observations on: (1) The vulnerability of child complainants in the criminal justice system and the trauma of testifying in court, emphasizing that our constitutional democracy demands a transformation in how child complainants are treated. (2) The importance of proper training for judicial officers, prosecutors, and intermediaries in dealing with child witnesses. (3) The need for intermediaries to be skilled communicators who can bridge the gap between children and the court. (4) The court environment and its potentially terrifying effect on children. (5) The importance of pre-trial assessment of child complainants to determine their needs. (6) The proper approach to questioning children to determine whether they understand what it means to speak the truth. (7) The role of this Court as upper guardian of all minors. (8) Observations on the disturbing lack of facilities, trained intermediaries, and proper implementation of protective measures for children, based on survey evidence. (9) Comments on the inappropriateness of the High Court's declaratory and supervisory orders as an impermissible intrusion into executive functions. (10) The minority judgment's observations on the institutional implications of this Court's willingness to consider improperly raised constitutional issues, and the dangers of encouraging judges to address irrelevant constitutional matters.

This case is highly significant in South African law for several reasons: (1) It clarifies the circumstances in which a court may raise constitutional issues of its own accord, particularly in cases involving vulnerable non-parties such as child complainants. (2) It provides authoritative guidance on the interpretation of section 170A(1) of the CPA and the protection to be afforded to child complainants in sexual offence cases, emphasizing that the best interests of the child must be of paramount importance. (3) It affirms that the phrase 'undue mental stress or suffering' must be interpreted to prevent, rather than require, exposure to trauma before protective measures are applied. (4) It emphasizes the constitutional duty of judicial officers to enquire into the need for protective measures (intermediaries, in camera proceedings, CCTV) even where the state does not raise the issue. (5) It demonstrates the Court's willingness to exercise a supervisory role in ensuring the proper implementation of constitutional and statutory protections for children, while respecting separation of powers. (6) It clarifies this Court's discretion in confirmation proceedings, particularly where constitutional issues were improperly raised in the lower court. (7) The minority judgment provides important guidance on the limits of judicial authority and the need to respect the boundaries between abstract constitutional review and the adjudication of live disputes.