The Constitutional Court is expected tomorrow to deliberate a judge's ruling which declared as unconstitutional sections of the law dealing with the testimony of child witnesses and child victims.
In May Judge Eberhard Bertelsmann declared Section 170A (1) of the Criminal Procedure Act and several sub-sections 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 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 a complainant or a witness in a criminal trial," he said at the time.
Bertelsmann 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.
Other sections that were struck down as unconstitutional 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.
These children had a right to be assisted by an intermediary.
Electronic devices such as closed circuit television should also be used where resources permitted. Court officials 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.
The Minister of Justice and Constitutional Development is seeking leave to appeal against the orders of constitutional invalidity as well as those parts of the order relating to steps that should be taken by government to address the shortcomings in criminal proceedings involving children. - Sapa