The protection of victims and witnesses in the criminal justice system is crucial, as recent studies on the victimization of children in South Africa show that South African children in particular experience and experience exceptionally high crime rates and therefore represent a significant proportion of victims and witnesses who must appear in court to testify about these crimes. This contribution consists of an in-depth examination of the rights of the child of victims and witnesses, contained in the Constitution of the Republic of South Africa of 1996, in order to determine whether the current protection afforded to victims and witnesses in childhood when testifying in criminal proceedings in South Africa is consistent with South Africa`s constitutional obligations. In this context, the general constitutional rights set forth in the Bill of Rights with respect to victims and witnesses in childhood and the specific constitutional rights of victims and witnesses in childhood are addressed in article 28 of the Constitution. Many of the challenges faced by Coughlan and Jarman26 were related to the environment and the court process itself. These include the effects of long delays and stress in an upcoming process; the unpredictability of the presence of an intermediary; protect the rights of the accused rather than avoid further abuse of the child; question the child`s ability to adhere to concepts of truth defined by adults; lack of consideration of cultural approaches to talking about sexual affairs; the risk of translation errors; ask the child to repeat the details of the abuse; Determine if a successful prosecution is worth the child`s trauma; conflict between the roles of social worker and mediator; and delays of up to 2 years for cases tried due to court backlogs. The two constitutional cases mentioned above, johncom Media Investments Limited v.M and Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development, are welcome as they contribute to the development of case law that recognizes children as independent holders of fundamental rights such as the right to privacy. [148] [5] The Democratic Alliance (DA) Zakhele Mbhele, the DA`s shadow police minister, said in a May 16, 2018 press release that children had been victims of a shocking 41 percent of the 124,526 reported rape cases in South Africa over the past three fiscal years, and a parliamentary response also revealed that more than 2,600 children were murdered during the same period. that`s 5% of all reported murders. Mbhele went on to say that this also means that in South Africa, at least 46 children are raped and at least 2 children murdered every day. Alarmingly, only 21 percent of child rape cases and only 1 in 3 murder cases resulted in successful convictions, he said. (See SAPeople 2018 www.sapeople.com/2018/05/16/children-are-victims-of-almost-half-of-all-rapes-cases-in-south-africa-46-raped-2-murdered-daily/.) [180] Bekink and Brand “Constitutional Protection of Children” 188. The authors point out that the fact that the right is formulated as a right to protection against ill-treatment, ill-treatment, neglect or humiliation, whereas a comparable right in the Transitional Constitution (§ 30 (1) (d)) only stipulates that a child shall not be subjected to such treatment, underlines the fact that Article 28 (1) (d) imposes a positive obligation to: To protect children from such treatment.
This view is also shared by Friedman, Pantazis and Skelton “Rights of the Child” 47-24. See also article 7, paragraph 2, of the Constitution, which states that “the State shall respect, protect and fulfil the rights set forth in the Bill of Rights”. In S v. Williams,[199] the court declared invalid the section of the Criminal Procedure Act that authorized corporal punishment of juvenile offenders, as it violated the right to protection from cruel and degrading punishment. Unfortunately, the court did not find it necessary to examine the law in detail. (i) are not suitable for a person of the age of that child; According to Coughlan24, the intermediate system is only used in major south African city centres such as East London, Cape Town, Port Elizabeth, Johannesburg, Pretoria, Durban and Pietermaritzburg. Such facilities do not exist in ordinary courts. In addition, the service was not provided in all respects in cities like East London, as social workers refused to continue offering the service at the time.
The experiences of a small number of these mediators reveal that they were not sufficiently trained and had to deal with fears and emotions about the trial and the child`s trauma. For these experiments, they did not receive any debriefings. [169] Milo, Penfold and Stein “Freedom of Expression” 42-33. Children can therefore express themselves in a way that takes into account their childhood, for example through anatomical dolls or with the help of drawings. In Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development,[101] the Constitutional Court not only reaffirmed the importance of dignity in recognizing the inherent value of children, but also stressed that children`s right to dignity does not depend on the rights of their parents; nor is the exercise of these rights suspended until the children have reached a certain age. (k) The need for a child to be brought up in a stable family environment and, where this is not possible, in an environment as similar as possible to a caring family environment; The following table shows how often a case is moved. In addition to the increase in the costs of representing the child victim, the child witness must attend each hearing. In practice, this means that the child must be prepared (once) for court, then must be prepared to testify, attend the hearing and be ready to testify at any occasion.
The child victim is thus exposed to excessive psychological stress even before the declaration. • Immoral attack on a child under the age of 16 with the infliction of bodily harm (i.e. any type of bodily harm, no matter how trivial it may seem) The Bill of Rights enshrines the fundamental rights of all peoples in South Africa. [15] These rights are not mere guidelines; on the contrary, the State is obliged to “respect, promote and fulfil” these rights. The Bill of Rights imposes a clear obligation on the State to promote, protect and implement the rights of the child. [16] These include the right to equality; [17] Dignity; [18] Life; [19] Liberty and security of the person; [20] individual autonomy resulting from the right to privacy; [21] Freedom of religion; [22] Freedom of expression; [23] Freedom of association; [24] Ownership; [25] Housing; [26] Health Services; food, water and social security; [27] Education; [28] fair administrative action; [29] and the right of detained, detained and prosecuted persons to a range of protective measures. [30] The most important or most impactful rights on the child victim and the child giving birth are the right to equality, human dignity, liberty and security of the person (in particular the right to be free from all forms of violence) and the right to individual autonomy (in particular the right to privacy and freedom of expression). These rights are explained separately below. In Centre for Child Law v Media 24 Limited,[77] the Supreme Court of Appeal issued, inter alia, a judgment in an application by the High Court for confirmation of an order of constitutional incapacity.
The High Court declared Article 154(3) of the Code of Criminal Procedure unconstitutional and invalid in that it does not offer protection to victims of crime under the age of 18. [78] Although subsection 154(3) of the Code of Criminal Procedure grants anonymity to an accused and a witness in criminal proceedings under the age of 18, no similar protection is afforded to children under the age of 18 who are victims of a crime. (g) may be detained only as a last resort; in this case, in addition to the rights enjoyed by a child under Articles 12 and 35, the child can only be detained for the shortest reasonable period of time and has the right – it is of course not only important that the child`s victim and the child`s witness are treated with the necessary dignity and mercy, but it is also important that the child victim and the child`s witness are not subjected to treatment such as degrading cross-examination during testimony. Again, the use of an intermediary can be invaluable in this regard. • Preferably, all cases of serious sexual offences should be prosecuted before special sexual criminal courts. It should be noted that this rule also distinguishes between children in sexual cases and children in other criminal cases. Section 60 of An Act to amend the Criminal Code (Sexual offences and related matters)[60] provides that a court may not treat with caution the evidence of a complainant in connection with a sexual offence because of the nature of the offence. In S v. M[61], the Tribunal found that the approach taken in S v. Jackson[62] also applied to all cases in which an act of a sexual nature was an element, and thus also to the detection of children. • In cases of abandonment and neglect of children, no mediation services have been granted Under article 9 of the Constitution, which grants everyone the right to equality, and article 9, paragraph 1, guarantees the right to equality before the law and to equal protection and benefit of the law. .
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