South Africa has over the last 20 years developed a legal and regulatory framework to advance and protect the rights of the South African children to fulfill its obligations towards the Convention on the Rights of the Child and the African Charter. By endorsing the said instruments, South Africa agreed to comply with such and to implement ways to provide children with protection. Since section 28(2) of the South African Constitution and section 170A of the Criminal Procedure Act are the backbone of the intermediary system, there is a reasonable assumption that the government will continue to commit the necessary resources in order to fulfill the objectives of the law.
9.2.1.1 Intermediary management, supervision and monitoring
The most significant barrier towards the efficacy of the intermediary system in the South Africa is the absence of management of intermediaries and the sustainability of the position. To date, intermediaries are recruited only on a contract basis. Their management and regulation has not been clearly defined. Even thought there is a tentative Intermediary Protocol in place, it is necessary, first of all, that the intermediary position be upgraded to a permanent position with all corresponding benefits. This is only befitting for a position whose function is necessary for as long as child witnesses continue to come to court. Secondly there is need for regulatory provisions addressing the management, training, supervision and monitoring of intermediaries. Whilst creating an office similar to that of the Zimbabwean National Coordinator who coordinates and streamlines intermediaries may be considered late, it may be in itself a worthwhile consideration. The National Coordinator would work with the current court managers in managing, monitoring and supervising the intermediaries. The systematic
179 monitoring would introduce the much needed opportunity to regularly measure performance and effectiveness of the system.
9.2.1.2 Uniform interpretation of intermediary legislation
South Africa needs uniformity in the basic interpretation of section 170A. All courts need to accept that the accusatorial system is hostile to children and that courts have a constitutional obligation to protect every child witness as he or she comes into court to testify in an adversarial environment in line with Section 28(2) of the Constitution.
The guidelines provided by Justice Ngcobo are clear and well expounded as they uphold the best interests of the child in a way that is consistent with the constitutional requirements. If these guidelines are uniformly adapted to and are applied consistently by all courts dealing with child victims of sexual abuse, these would significantly reduce the uncertainty factor which has been tailgating the application of Section 170A (1).
Courts must embrace the novel interpretation of the problematic phrase “undue mental stress or suffering” as provided by the Constitutional Court. It is simply logical to expect that protecting a child would entail that a child witness need not be exposed to severe stress before he or she is permitted to use an intermediary. Judicial discretion must not be viewed negatively but must be embraced as a mechanism by which each court is enabled to treat each case according to its own merits while looking out for the child‟s best interests and balancing them with the accused‟s rights
9.2.1.3 Extended intermediary functions
The core function of intermediaries should be re-assessed. It is recommended that in the child‟s best interests, subject to the intermediaries‟ level of expertise and training on aspects of child development and trauma, the functions of the intermediary must be extended. An intermediary could act as a frontline person in all cases involving child witnesses. This will help expedite the building of rapport between the child and the intermediary. The South African intermediary should if he or she lacks the skills be trained to assess the child‟s communication skills and developmental and emotional level before trial and alert the prosecutor. This should not be
180 problematic because according to research as most South African magistrates recommend it. In Zimbabwe, it is the intermediary‟s duty to perform this function.
Intermediaries must be permitted to prepare child witnesses for court. Most importantly this should not pose any significant problem as research has confirmed that South African magistrates want intermediaries to provide court preparation to child witness. It has been established that since prosecutors do not have the time to perform this function. Although child witness court preparation is done by court preparation officers, this function could be easily assumed by intermediaries. In Zimbabwe, the intermediaries prepare child witnesses for court.
During trial the intermediary must be permitted to comment on a child‟s capacity on whether a child has understood a question or not. The intermediary must point out inappropriate questions which are beyond a child‟s cognitive and developmental levels. Most intermediaries who have received intermediary training are able to undertake this responsibility. Intermediaries need to provide after-care services advising parents or caregivers of after-care services, referrals and agencies. In Zimbabwe, the intermediaries perform these tasks with relative success. The South African intermediaries should be able to inform the child‟s parents or caregiver of the next court dates and developments. This is already being practiced with impressive results in Zimbabwe. Finally as part of the monitoring exercise to measure effectiveness and viability of the system, South African intermediaries must systematically collect information and data. In the United Kingdom the intermediary is expected is expected to collect information and data.
9.2.1.4 Training and sensitisation of role players
There should be mandatory training and sensitisation of the police, the prosecutor and the presiding officer on the role of the intermediary, child development, child language skills, the psychological effects of sexual abuse and testifying in court and child trauma. This will ensure a smoother working relationship between the intermediary and the court role players. Acceptance of the role of the intermediary and what it represents means that role players will not consider him or her as an outsider seeking to usurp part of their authority. The engagement of support from law societies and other relevant legal bodies must be considered. This will enable defence
181 counsels to understand more the context in which the intermediary operates. The intermediary‟s presence should not be perceived as detracting from the accused‟s constitutional rights.