The right to protection of children testifying in criminal proceedings

Abstract

The Bill of Rights of the Constitution of the Republic of South Africa, 1996 guarantees the protection of children in all circumstances and in all matters concerning them. The Constitution provides for the best interests of the child as a paramount consideration in all matters affecting the child (section 28 (2)) and for the right to protection from maltreatment, neglect, abuse or degradation (section 28 (1) (d)). On the other hand the Children's Act 38 of 2005 offers comprehensive protection of children predicated upon internationally recognised guiding principles like the best interests and participation. The Criminal Procedure Act 75 of 2008 provides for the appointment of intermediaries for children testifying in criminal proceedings (section 170A). However, the term "child witness" is not explicitly mentioned in any of these legal instruments. In South Africa, the Service Charter for Victims of Crime in South Africa (the Victims' Charter) and the Minimum Services Standards for Victims of Crime provide for the protection of child witnesses. Reference is made to international law for the protection of child witnesses, instructed by section 39 (1) (b) and (c) of the Constitution articulating that in interpreting the Bill of Rights, a court, tribunal or forum must refer to international law, and may refer to foreign law. The United Nations Convention on the Rights of the Child (1989), the African Charter on the Rights and Welfare of the Child (1990) and the United Nations Guidelines on Justice for Child Victims and Witnesses to Crime (2005) provide an international framework for the protection of child witnesses in criminal judicial processes. Further, foreign jurisdictions like Israel and Scotland have statutory instruments for the protection of child witnesses in criminal proceedings. Considerably, South Africa has made strides in an attempt to protect children testifying in criminal proceedings through statutory provisions and case law