Ensuring justice: An urgent need for amendments to safeguard vulnerable witnesses testifying in open court

April 1st, 2024
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Picture source: Getty/iStock

Victims of sexual offences bring with them to the courtroom the disturbing experience of abuse, violence, and family conflict. These experiences are traumatic with the result that these victims may suffer from symptoms associated with traumatisation. These trauma symptoms include symptoms of complex post-traumatic stress disorder, such as fear, low self-esteem, the inability to trust, anger, hostility, depression, guilt, shame or stigmatisation, disassociation, and feelings of powerlessness. In addition, victims must try to cope with the stress of the impending trial and all the complexities of being a witness in court. The court process is also a form of secondary traumatisation.

Any person who has been sexually abused suffers from trauma. The trauma may manifest itself in various manners and the victim may relive the trauma when they must testify about the abuse. Many times, the victims have trust issues. They internalise and even blame themselves for what has happened and may even experience flashback episodes every time they speak about the event.

In most cases, the perpetrator is known to the victim. The victim has placed their trust in the perpetrator and the victim is then betrayed. When it comes to the trial, the victim has difficulty in relating what happened to them. Victims may find themselves in situations where they experience a ‘complex narration of engagement, reliance, trust, intrusion, invasion, violation and betrayal’ (Marx v S [2005] 4 All SA 267 (SCA) at para 197).

Criminal trials take a long time before the matter is set down for trial. This protracted time span may cause a victim to forget certain details of the offence (K Hollely and K Muller Introducing the Child Witness (Printrite 2004)).

Pursuant to research by the South African Law Reform Commission (SALRC), s 170A of the Criminal Procedure Act 51 of 1977 was introduced. They investigated and recommended that child witnesses must be protected and that they should testify in a child-friendly environment as opposed to the traditional courtroom. They have found that the accused’s right to a fair trial, which included the right to see and hear witnesses, traumatised the child. They also found that children were often unwilling to testify, or they were poor witnesses when they did.

The South African Constitution, as well as international instruments including the United Nations Convention on the Rights of the Child have guaranteed the rights of a child to participate effectively in court proceedings.

In the case of Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Other 2009 (2) SACR 130 (CC) at para 94, the Constitutional Court held that s 170A of the Criminal Procedure Act aims to prevent a child from undergoing undue mental stress or suffering while giving evidence. It does this by permitting the child to testify through an intermediary. The intermediary is required to convey the general purpose of questions put to the child. In fact, s 170A(3) allows the child who testifies through an intermediary, to give evidence in a separate room away from the accused and in an atmosphere designed to set the child at ease. Many courts have intermediary rooms away from the courtroom, cordoned off from the normal public area. It is very close to the courtroom itself and linked to the court via an audio, as well as a visual link. The court and everyone in the court can then see the witness sitting in the intermediary room. To a large extent, it is also possible to see the witness is alone in the room. It is a colour monitor and everyone in the court can clearly hear what the witness says.

In the case of S v Staggie and Another 2003 (1) SACR 232 (C) at 251D-E and 252B-E, it was stated that the interests of the accused must also be borne in mind when it comes to the question of whether closed-circuit television ought to be used. When a witness testifies via closed circuit television, the size and resolution of the television set, as well as the way the camera is positioned is crucial. There should be no reason why all the parties could not view the witness fully on the monitor and accurately observe the reaction and physical demeanour of the witness. In fact, when using such equipment, the parties to a case could have a better view of the witness than if the witness were in the courtroom, as in the court room the witness could at times be a distance away from the parties, where with closed circuit television the parties could be close to the monitor. Thus, from the perspective of watching the demeanour of the witness, it was not automatic that the use of the close circuit television was worse than having the witness in the courtroom. The difference between observing the reactions of the witness via a television monitor and in the witness box could often be significant and could, in fact, be beneficial at times. Questions could be posed directly to the witness in the normal fashion. The only difference is that the witness did not have sight of the court personnel and receive all questions via a set of headphones.

The section of the Act was amended and before 5 August 2022, the relevant parts of the section provided as follows:

‘(1) Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.

(2)(a) No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary under subsection (1), except examination by the court, shall take place in any manner other than through that intermediary.’

Subsections 1 and 2(a) were amended and new subss 11, 12, and 13 were added to the section. The relevant parts of the section are as follows:

‘(1) Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness –

(a) under the biological or mental age of eighteen years;

(b) who suffers from a physical, psychological, mental or emotional condition; or

(c) who is an older person as defined in section 1 of the Older Persons Act, 2006 (Act 13 of 2006), to undue psychological, mental or emotional stress, trauma or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.’

A child witness must be protected from undue mental stress or suffering while giving evidence. Evidence through intermediaries is widely recognised as an effective procedure in criminal proceedings to protect a child witness or complainant. The intermediary service was not available to any other witness or complainant who may be exposed to undue mental stress, trauma, or suffering. The service was also only available in criminal proceedings.

The Criminal and Related Matters Amendment Act 12 of 2021 increased the power of the courts to appoint intermediaries. It now includes any person who suffers from a physical, psychological, mental, or emotional condition. There is no age bound or limit and an intermediary can now also be appointed for witnesses over 18 years of age. It also includes a person who is defined in s 1 of the Older Persons Act 13 of 2006 in the case of a male who is 65 years of age or older and a female who is 60 years of age and older. Courts may use the service of an intermediary where such witnesses would be exposed to undue stress and suffering if they testify in an open court. It also includes where such witness would suffer undue psychological or emotional stress, trauma, or suffering if he or she testifies at such proceedings. In fact, in terms of ss 51A and 51B of the Magistrates’ Courts Act 32 of 1944 and ss 37A and 37B of the Superior Courts Act 10 of 2013 the services of intermediaries are also available in proceedings other than criminal matters. Witnesses who meet the threshold may testify through the assistance of an intermediary. A court must make the determination.

In the case of the S v Lenting and Others (WCC) (unreported case no CC08/2018, 14-9-2023) (Lekhuleni J) at para 36, Lekhuleni J stated that in considering an application in terms of s 170A, the court must engage in a two-pronged approach. The court must first determine whether the witness is –

one – defined either in subss 1(a) to (c) of s 170A as amended. For instance, the court must determine whether the witness has a physical condition or mental age below 18. Once the court has made a finding in this regard, the court must – two – decide whether the proceedings would expose such witness to undue psychological, mental, or emotional stress, trauma, or suffering if they testify at such proceedings without the assistance of an intermediary. If the court is satisfied that the witness meets the two requirements, the court may appoint an intermediary to enable such witness to give their evidence through that intermediary.

The courts should call for the birth certificate of the child witness and a psychologist’s report to determine whether a witness is below the mental age of 18. An identity document of the witness should be provided to prove the older person’s age as defined in the Older Persons Act. A psychologist’s report must be filed to satisfy the court that a person is suffering from a psychological or emotional condition. The Act also refers to physical condition and this may include witnesses who are visually impaired or those suffering from speech disorders. A medical report explaining the extent of such impairment and the extent to which the witness would suffer undue psychological, mental, or emotional stress or trauma if the witness would testify at such proceedings without the assistance of a court-appointed intermediary.

In terms of s 170A(7) of the Criminal Procedure Act, a court is required to provide reasons for refusing an application for the appointment of an intermediary.

In the case Lenting the court found that the children who reached the age of majority were still suffering from post-traumatic stress disorder and psychological problems, having witnessed the killing of their parents while they were minors. The court ordered that they testify through the assistance of an intermediary, through closed-circuit television in terms of s 158(2) of the Criminal Procedure Act and their evidence be heard behind closed doors in terms of s 153. It was also ordered that the names and identities shall not be disclosed to the public.

In the case of Staggie, it was also stated that ‘as far as sexual offences are concerned there is often no need for public testimony by the complainant. The public has no need to know the full details of the circumstances that the woman went through in such a case’ (para 244I). ‘From the standpoint of the criminal justice system, many more women would be willing to lay charges and pursue in the court those who perpetrate these types of crimes, if they were spared the public embarrassment of testifying in open court about these matters’ (para 245B).

Conclusion

Women were reluctant to report crimes of a sexual nature, fearing humiliation and embarrassment. Often, they viewed the criminal justice system as unsympathetic. They often viewed it as a process that does not allow them to emerge from the ordeal with their dignity intact. There is a dire need for greater assistance to be given to those women who wish to report rape and sexual offenses. If women know and see that they would be spared public humiliation and embarrassment they may be more willing to lay charges and be witnesses in such cases.

Professor Rushiella Songca writes: ‘The use of intermediaries is in the best interests of all children and must, therefore, be available to all children in courtroom proceedings including child offenders’ (Prof R Songca ‘Children seeking justice: Safeguarding the rights of child offenders in South African criminal courts’ (2019) 52 De Jure 316).

Mohammed Moolla BProc (UKZN) LLM (UWC) is an Acting Regional Court Magistrate in Cape Town.

This article was first published in De Rebus in 2024 (April) DR 18.

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