The best Interests Principle in Practice: Intermediaries Media Anonymity and Diversions.

Abstract

The procedural protections and restorative justice options available to juvenile offenders in the South African criminal justice system are examined in this article. It particularly examines the role of intermediaries under Section 170A of the Criminal Procedure Act 51 of 1977, emphasising their ability to protect vulnerable children from the trauma of hostile cross-examination while promoting efficient communication throughout court proceedings. Additionally, the article examines the child accused’s constitutional right to anonymity, citing the seminal case of Centre for Child Law v. Media 24 Limited to explain how protecting a child’s identity is crucial to maintaining their privacy and dignity as well as guaranteeing their successful rehabilitation. Lastly, it assesses the legal framework for diversion in serious cases, like murder, where the Child Justice Act 75 of 2008 mandates that the Director of Public Prosecutions carefully weigh the child’s best interests against the seriousness of the offence. The “best interests of the child” principle, which requires that juvenile offenders receive care that prioritises their emotional well-being and long-term reintegration into society, is at the centre of this debate.

The purpose and function of an intermediary during the criminal process in South Africa

An intermediary is a person who is specifically qualified to facilitate communication between the court and a child witness or victim in a manner that is appropriate and understandable to the child, presented by section 170A of the Criminal Procedure Act 57 of 1977. The prime purpose of an intermediary is to shield the child from intimidation or hostility of cross-examination. 

An intermediary has two prime functions, firstly, an intermediary has to ensure that the child witness, who has to be in a separate room from the courtroom, is in the company of someone who can engage his or her attention and relate all the questions put by the parties and the court. Lastly, unless the court directs otherwise, an intermediary is obliged to convey to the child-witness the general purport of the party’s original question in a way that is appropriate to the child’s development. In essence, intermediary relays the questions to the child in a manner that is consistent with the mental and emotional development of that child in order to facilitate the child’s participation in judicial proceedings. An intermediary thus provides an environment that enables child witnesses and victims to freely present their testimonies and ensures that their rights are respected.  An intermediary does not only protect the child from unnecessary trauma by shielding him or her from the defendant or formal court environment, but also makes it possible for the court to receive evidence that is presented freely and is likely to be true and better understood by the court. 

An outline/summary of section 170A of the Criminal Procedure Act, which provides for the use of an intermediary.

The court may appoint an intermediary from the persons or category of persons determined by the Minister as competent intermediaries as an instrument through which a witness may present his or her evidence in situations where the court is satisfied that any witness under the biological and mental age of eighteen years; who has a physical, mental or psychological disability; or who is old, would be exposed to undue mental, psychological or emotional stress or suffering if she or he testifies in court proceedings. Cross examination, re-examination or examination of the witness is done through the intermediary at a place separate from the courtroom, arranged to set the witness at ease and, in which the intermediary communicates the general purport of questions to the witness, except examination by the court. The court may watch and hear the child testimony through, for instance, camera footage. An intermediary who is not a full-time state employee is compensated for his or her services and associated expenses. 

Evidence presented through an intermediary under oath is not invalid solely due to the intermediary’s lack of competency. If the intermediary is unqualified but was appointed in good faith, the court evaluates the reasons for lack of qualification and how it affects the reliability of the evidence presented; the mental stress that may arise to the witness having to represent evidence; and the likelihood that justice will be impaired if that evidence is admitted. However, the prosecution can represent anew evidence which was presented through an unqualified intermediary. The courts must provide reasons for refusing an application to appoint an intermediary, the decision may be reviewed in case of material changes to a fact or circumstance that may influence a change of decision. Intermediaries appear in court upon being summoned, and proceedings may be postponed in their absence, revoke the appointment and appoint another one, or the court may proceed without an intermediary in compelling circumstances and record the reasons for that. 

An intermediary must make an oath to perform duties and to convey the questions accurately and properly. However, prior to the appointment, the presiding officer must assess the competency of such a person, including his or her fitness, experience on the role and functions of an intermediary, qualifications, knowledge, and language. The intermediary must then be issued a certificate of competency. 

A critical discussion on whether a child in conflict with the law has the right to an intermediary during his or her trial.

A child in conflict with the law has the right to an intermediary during his or her trial. Section 35(3)(e) of the Constitution of the Republic of South Africa, 1996, affords everyone (“everyone” includes children) the right to a fair trial, which includes the right of an accused to be present when tried, constitutional developments have led to the adaptation of this rule to allow a child to participate effectively in court proceedings. Section 170A of the Criminal Procedure Act provides for children to testify through an intermediary to protect them from undue mental stress or suffering. This facilitates the child’s participation and encourages them to present their evidence freely, and it is in line with the requirements of a fair trial and section 28(2), which provides for the child’s best interests. 

The best interest principle provides that the child’s interests are of utmost importance in any matter concerning a child, thus this principle not only protects the child witness and victims, but also extends this protection to the child accused. Children need to be shielded from undue trauma and made to feel safe when giving evidence whether they are victims, witnesses or offenders. This principle is also recognized by the Child Justice Act. Section 63(4) of the Child Justice Act requires that the role of the   presiding officer should permit the use of an intermediary to ensure that the proceedings are fair and not unduly hostile to the age and understanding of the child. 

In DPP v Minister of Justice and Constitutional Development, the court held that the best interest principles mandate that the child offender must be protected from trauma arising from trial by being included in legislation that affords him or her the assistance of an intermediary in terms of section 170A. Child offenders are just as vulnerable as child victims or witnesses, they are unfamiliar with the judicial process and language and are unlikely to give evidence freely, thus, they also require an intermediary to provide an enabling environment and promote restorative justice for them. 

Reasons why the identity of a child accused may not be revealed in media reports.

The Sexual Offences Act amends the Criminal Procedure Act to provide special measures for child offenders to testify and to prohibit the publication of information that may disclose the identity of the child accused; this is done to protect the child from harm or abuse that may cause the child psychological or emotional damage. Section 154(3) of the Criminal Procedure Act provides for anonymity of the child accused or witnesses who are under the age of eighteen at criminal proceedings,  this also implicates the right to a fair trial and the right to equality. The leading case is Centre for Child Law v Media 24 Limited, where the Constitutional court considered section 28(2) of the Constitution which provides for the child’s best interests in any matter concerning a child; section 154(1) of the Criminal Procedure Act which unequivocally provides for non-disclosure of the child’s identity; and the right to privacy which is intertwined with the right to human dignity, to conclude that revealing the identity of the child offender would expose him or her to public shaming, stigma and humiliation which would violate the child’s right to dignity. Furthermore, the right to privacy would be violated when the child is stripped off their anonymity. Thus, revealing the child’s identity would cause him or her mental distress or injury, and psychological damage that would affect the ability of the child to recover, rehabilitate, blend into the community and lead a normal life. The publication would impede the healing/therapy process and hinder rehabilitation of the child offender and threatens the prospects of integrating into the community.  

The regulatory framework, applicable rules and process to divert a matter where a fifteen-year-old child is accused of murder in South Africa

Murder is a schedule 3 offence, and the fifteen-year-old child may be presumed to have criminal capacity, thus, the matter will be referred to a preliminary enquiry where the court will consider whether the child takes responsibility for the offence; he or she was not under undue influence to take responsibility; and whether the child or parent consent to diversion. For the offence of murder the diversion will be level two in terms of schedule 3 offences. In this case of murder, section 52(3) of the Child Justice Act applies, thus, the Director of Public Prosecutions who has jurisdiction may indicate in writing that the matter must be diverted in terms of section 97(4)(a)(iii) of the Child Justice Act, only if exceptional circumstances exist to justify the reason. 

The Director of Public Prosecutions must consider the youthfulness of the child; particularly low developmental level; presence of hardship, vulnerability or handicap; whether the victim prefers diversion over trial; mitigating factors such as undue influence on the child to commit the offence or diminished responsibility; and assess whether the proceedings would result in harm to the child accused. The diversion only takes place upon the written indication of the Director of Public Prosecutions after having consulted the investigating officer and considered the views of the victims and any person who has a direct interest on the matter. The written indication must then be handed to the presiding officer or the Child Justice court as part of the record of proceedings.  Centre for Child Law v Media 24 Limited 2020 3 BCLR 245 (CC)

Conclusion

As expressed, the legal system in South Africa offers children who are in legal trouble a complete defence, guaranteeing that their constitutional right to a fair trial is fulfilled while considering their developmental needs. An essential part of this protection is the use of an intermediary, which turns a potentially frightening courtroom into a setting where a child can freely and truthfully testify. The stringent ban on media identification, which guards against public humiliation and safeguards the child’s chances for future rehabilitation and social integration, further demonstrates this dedication to the child’s welfare. Additionally, the Child Justice Act’s diversion procedures for serious Schedule 3 offences show that, even in cases of serious misconduct, the law aims to prevent the harm of formal criminal proceedings when the child’s developmental stage and exceptional circumstances warrant a restorative approach. In the end, the South African justice system strikes a balance between the need for accountability and the fundamental obligation to protect and rehabilitate vulnerable young offenders by upholding the “best interests of the child” as a paramount consideration.

Bibliography

Books

Joubert et al.

2024. Criminal Procedure Handbook. 13th edition. Cape Town: Juta.

Legislation

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act 51 of 1977

Child Justice Act 75 of 2008

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Academic articles

Songca R

2019. Children Seeking Justice: Safeguarding the Rights of Child Offenders in South African Criminal Courts. De Jure (52):316-334.

Bekink M 

2021. The Right of Child Offenders to Intermediary Assistance in the Criminal Justice System: South African Perspective. Potchefstroom Electronic Law Journal (24):1-34.

Case Law

Centre for Child Law v Media 24 Limited 2020 3 BCLR 245 (CC)

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 2 SACR 130 (CC)