The Constitutional Protection Afforded to Child Victims and Child Witnesses while Testifying in Criminal Proceedings in South Africa

Mildred Bekink

doi:10.17159/1727-3781/2019/v22i0a5774

Abstract

The protection of child victims and witnesses in the criminal justice system is of vital importance, as present-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime, and consequently represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes. This contribution consists of an in-depth discussion of the rights of the child victim and witness encompassed in the Constitution of the Republic of South Africa, 1996 in order to determine whether the current protection afforded to child victims and witnesses while testifying in criminal proceedings in South Africa is in line with South Africa's constitutional obligations. In this regard the general constitutional rights in the Bill of Rights relating to child victims and witnesses as well as the specific constitutional rights of child victims and witnesses in section 28 of the Constitution are discussed. 

Highlights

Children's rights in South Africa have undergone a significant change since 1994
The protection of child victims and witnesses in the criminal justice system is of vital importance, as present-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime, and represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes
This contribution consists of an in-depth discussion of the rights of the child victim and witness encompassed in the Constitution of the Republic of South Africa, 1996 in order to determine whether the current protection afforded to child victims and witnesses while testifying in criminal proceedings in South Africa is in line with South Africa's constitutional obligations

Summary

Introduction

Children's rights in South Africa have undergone a significant change since 1994. This can be attributed inter alia to the enactment of a democratic Constitutional legal order, as the principles encompassed in both the Interim Constitution of the Republic of South Africa[1] and later the final Constitution of the Republic of South Africa, 1996 (the Constitution) enhance the level of protection afforded to children in South Africa.[2]. The Supreme Court of Appeal held that the exclusion of child victims from the provisions of section 154(3) of the Criminal Procedure Act is irrational and in breach of section 9(1) of the Constitution, which guarantees everyone the right to equal protection and benefit of the law. Sections 12(1)(c) and 12(1)(e) may normally not be associated with court proceedings, it is submitted that it can be argued that exposing a child in open court to aggressive cross-examination by the alleged perpetrator or legal representative may amount to (secondary) violence or cruel, inhuman or degrading treatment In support of this argument the Constitutional Court in DPP v Minister of Justice and Constitutional Development[105] acknowledged that a child complainant who relates in open court in graphic detail in the presence of the accused the abusive acts perpetrated upon him or her will in most instances experience undue stress and suffering. That section 170A(1) of the Criminal Procedure Act seeks to prevent,[114] and the application of section 170A(1) could play an invaluable role in fulfilling this obligation

The right to individual autonomy

Section 28

Conclusion

Findings

Literature