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

The cases arose from the convictions of Albert Phaswane and Aaron Mokoena, each convicted in regional courts of raping minor girls aged 13 and 11 respectively. Both matters were referred to the High Court for sentencing under the Criminal Law Amendment Act. While dealing with sentencing, the High Court, mero motu, raised the constitutional validity of several provisions of the Criminal Procedure Act (CPA) governing the protection of child complainants in sexual offence cases, including provisions on in camera proceedings, testifying via CCTV, testifying without oath, and the use of intermediaries. The High Court declared sections 153(3) and (5), 158(5), 164(1), and 170A(1) and (7) of the CPA unconstitutional for failing to adequately protect the best interests of children as required by section 28(2) of the Constitution, and issued wide-ranging declaratory and supervisory orders. These declarations were referred to the Constitutional Court for confirmation.

The Constitutional Court refused to confirm the orders declaring sections 153(3) and (5), 158(5), 164(1), and 170A(1) and (7) of the Criminal Procedure Act unconstitutional, and set aside the declaratory and supervisory orders made by the High Court.

The case clarifies the limits of a court’s power to raise constitutional issues mero motu, especially in criminal proceedings, and affirms that legislative provisions protecting child complainants should primarily be enforced through proper interpretation and implementation rather than invalidation. It underscores the importance of section 28(2) of the Constitution while maintaining respect for separation of powers and procedural fairness.