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. When their matters were referred to the North Gauteng High Court for sentencing under the Criminal Law Amendment Act, the High Court, mero motu, raised the constitutionality of several provisions of the Criminal Procedure Act (CPA) governing the manner in which child complainants give evidence in sexual offence cases. Without these issues having been raised at trial or by the parties, the High Court declared sections 153(3) and (5), 158(5), 164(1), and 170A(1) and (7) of the CPA inconsistent with section 28(2) of the Constitution, and issued wide-ranging declaratory and supervisory orders directed at the Minister and other state officials. The Director of Public Prosecutions sought confirmation of the invalidity orders, while the Minister opposed confirmation and appealed against both the invalidity and supervisory orders.

The Constitutional Court refused to confirm the High Court’s declarations of constitutional invalidity, set aside the orders of invalidity, and upheld the Minister’s appeal against the declaratory and supervisory orders. The impugned provisions of the Criminal Procedure Act remained valid.

This case is significant for clarifying the limits of judicial power to raise constitutional issues mero motu, especially in criminal proceedings. It affirms that child-protective provisions in the CPA are constitutionally sound and emphasises that failures in protecting child complainants stem from implementation rather than legislative defects. The judgment reinforces judicial restraint and separation of powers while affirming the constitutional centrality of children’s best interests.