The High Court has finally confronted the impact of courtroom testimony on South Africa’s children.

This week the Pretoria High Court declared Section 170A(1) of the Criminal Procedure Act and several other subsections of the Act, which deal with children and the manner in which they are required to testify in court, unconstitutional.

Judge Eberhard Bertelsmann said that the criminal justice system needs to operate in a way that takes account of children’s interests. ‘The criminal procedure and the courts should administer the criminal justice system in such a fashion that children who are caught up in it’s workings are protected from further trauma and are treated with proper respect for dignity and their unique status as vulnerable young human beings.’

The court order has been welcomed by the Legal Resources Centre, which represented non-profit organisations Children First and Operation Bobbi Bear as amici curiae in the matter.

They argued that the system places unsympathetic pressures on children, which directly impact on their emotional and psychological well-being during and after the trial, and therefore have a profound effect on their lives. They further argued that this is inconsistent with the Constitution and the Children’s Act, both of which are reflective of the rights of children as enshrined in international law, in that the best interests of children are not of paramount consideration.

The court order has been referred to the Constitutional Court for certification.

Mahendra Chetty of the Legal Resources Centre said that the decision of the court was definitely a step in the right direction. ‘Children are the most vulnerable members of our society. This judgement is long overdue and is important for the protection of children. Although the law cannot shield children from all the harsh realities of the world, it can put mechanisms in place to protect children and ensure that they emerge from painful ordeals with less to repair ’

The matter arose from two rape cases referred to the High Court for sentencing. Both victims, one of which testified without the services of an intermediary, suffered greatly in order to ensure the conviction of their offenders.

There are over 20 000 cases of child rape and attempted rape reported to the police in South Africa each year. One in five of all rape cases are of children under the age of 18 and the figures continue to rise.