n Child Abuse Research in South Africa - The constitutional right to protection of child victims and witnesses in the South African criminal justice system : director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and others

Volume 11, Issue 1
  • ISSN : 1562-1383



The complexity surrounding the prosecution of criminal cases in which young victims or witnesses are involved, especially in cases of sexual abuse, remains controversial and often results in the criminal justice system being blamed for neglecting the needs and welfare of child victims and witnesses. It is therefore argued that a progressive justice system requires a flexible interpretation of the legal rules regarding the giving of testimony, to ensure that children's unique vulnerability is taken into consideration and their needs served. It is argued that, even though some of the fundamental international rights may not be repeated explicitly in section 28(2) of the Constitution, they are critical prerequisites setting children's right to special care apart from other fundamental rights and thereby creating the only instance of the precedence of one fundamental right over others. The Constitutional Court (see 2009 (2) SACR 159-160 (CC)) acknowledged that the constitutional principles pertaining to the special nature of children's rights apply to all children who are witnesses in criminal trials. However, while recognising that there is a need to protect child witnesses and especially complainants in sexual cases, the Court arrived at the conclusion that it is essentially a matter of statutory interpretation rather than of the constitutional status of a number of issues previously identified by the High Court. These issues are discussed and debated in this article.

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