Can children be trusted in court? Examining the testimonial competence of children in criminal proceedings

Child witnesses play a crucial role in the justice system, especially in cases of physical and sexual assault, where their testimony often constitutes key evidence. In light of this, South Africa’s legal framework strives to balance the need for justice with the protection of these vulnerable witnesses.

The Constitution acknowledges children as a vulnerable group, deserving of special protections. Section 28(1)(d)guarantees every child the right to protection from maltreatment, neglect, abuse, or degradation, while section 28(2) prioritizes a child’s best interests in all matters. These rights are complemented by universal guarantees of dignity, equality, and freedom.

The Criminal Procedure Act(hereinafter referred to as the CPA) reinforces these constitutional rights through section 170A(1), which allows for the use of intermediaries to shield children from undue stress when testifying. This provision aims to prevent secondary victimization and ensure that children present evidence in an age-appropriate manner.

Despite such safeguards, doubts often arise about the reliability of child witnesses, rooted in the historical application of the cautionary rule. This judicial principle treated certain categories of witnesses, including children, with suspicion, requiring corroboration of their testimony due to presumed unreliability.

Judicial reforms have curtailed the blanket application of the cautionary rule. In S v Jackson, the Supreme Court of Appeal held that applying the rule universally in sexual offense cases was unjustified, urging courts to evaluate each case on its merits. Similarly, in Director of Public Prosecutions v S, the court concluded that the cautionary rule for child witnesses should only apply when circumstances warrant. 

Despite these advances, tension remains between protecting child witnesses and upholding the accused’s right to a fair trial under Section 35(3) of the Constitution. Protective measures such as intermediaries, video testimony, and in-camera proceedings shield child witnesses from direct confrontation but may restrict the accused’s ability to challenge evidence through cross-examination - an essential ingredient to a fair trial. The Constitutional Court addressed this tension in Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, where the Court held that the aforementioned protective procedures do not inherently compromise trial fairness.

The importance of section 170A of the CPA is reinforced in this regard, as it facilitates this balance by allowing intermediaries to frame questions in a non-intimidating manner, enabling children to testify without undue stress while preserving the accused’s right to challenge the testimony. While progress has been made, inconsistencies in the practices of intermediaries across courts leave some child witnesses vulnerable. Achieving a perfect balance between safeguarding children and ensuring fair trials thus remains a work in progress.

In summary, South Africa’s legal system must continue refining its approach to child witnesses, ensuring their best interests are protected without compromising the principles of justice. By engaging in a balancing exercise between protecting vulnerable witnesses on one hand and the accused’s rights on the other, the judiciary can uphold its constitutional obligations effectively.

Written by Alexis van Eeghem

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