| (1) |
Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary. |
[Section 170A(1) substituted by section 68 of Act No. 32 of 2007]
(2)
| (a) |
No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary under subsection (1), except examination by the court, shall take place in any manner other than through that intermediary. |
| (b) |
The said intermediary may, unless the court directs otherwise, convey the general purport of any question to the relevant witness. |
| (3) |
If a court appoints an intermediary under subsection (1), the court may direct that the relevant witness shall give his or her evidence at any place— |
| (a) |
which is informally arranged to set that witness at ease; |
| (b) |
which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and |
| (c) |
which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, that intermediary as well as that witness during his or her testimony. |
(4)
| (a) |
The Minister may by notice in the Gazette determine the persons or the category or class of persons who are competent to be appointed as intermediaries. |
| (b) |
An intermediary who is not in the full-time employment of the State shall be paid such travelling and subsistence and other allowances in respect of the services rendered by him or her as the Minister, with the concurrence of the Minister of Finance, may determine. |
(5)
| (a) |
No oath, affirmation or admonition which has been administered through an intermediary in terms of section 165 shall be invalid and no evidence which has been presented through an intermediary shall be inadmissible solely on account of the fact that such intermediary was not competent to be appointed as an intermediary in terms of a regulation referred to in subsection (4)(a), at the time when such oath, affirmation or admonition was administered or such evidence was presented. |
| (b) |
If in any proceedings it appears to a court that an oath, affirmation or admonition was administered or that evidence has been presented through an intermediary who was appointed in good faith but, at the time of such appointment, was not qualified to be appointed as an intermediary in terms of a regulation referred to in subsection (4)(a), the court must make a finding as to the validity of that oath, affirmation or admonition or the admissibility of that evidence, as the case may be, with due regard to— |
| (i) |
the reason why the intermediary concerned was not qualified to be appointed as an intermediary, and the likelihood that the reason concerned will affect the reliability of the evidence so presented adversely; |
| (ii) |
the mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be exposed to if that evidence is to be presented anew, whether by the witness in person or through another intermediary; and |
| (iii) |
the likelihood that real and substantial justice will be impaired if that evidence is admitted. |
(6)
| (a) |
Subsection (5) does not prevent the prosecution from presenting anew any evidence which was presented through an intermediary referred to in that subsection. |
| (b) |
The provisions of subsection (5) shall also be applicable in respect of all cases where an intermediary referred to in that subsection has been appointed, and in respect of which, at the time of the commencement of that subsection— |
| (ii) |
the court considering an appeal or review, |
has not delivered judgment.
| (7) |
The court shall provide reasons for refusing any application or request by the public prosecutor for the appointment of an intermediary in respect of child complainants below the age of 14 years, immediately upon refusal and such reasons shall be entered into the record of the proceedings. |
[Section 170A(7) inserted by section 68 of Act No. 32 of 2007]
| (8) |
An intermediary referred to in subsection (1) shall be summoned to appear in court on a specified date and at a specified place and time to act as an intermediary. |
[Section 170A (8) inserted by section 68 of Act No. 32 of 2007]
| (9) |
If, at the commencement of or at any stage before the completion of the proceedings concerned, an intermediary appointed by the court— |
| (a) |
is for any reason absent; |
| (b) |
becomes unable to act as an intermediary in the opinion of the court; or |
the court may, in the interests of justice and after due consideration of the arguments put forward by the accused person and the prosecutor—
| (i) |
postpone the proceedings in order to obtain the intermediary's presence; |
| (ii) |
summons the intermediary to appear before the court to advance reasons for being absent; |
| (iii) |
direct that the appointment of the intermediary be revoked and appoint another intermediary; or |
| (iv) |
direct that the appointment of the intermediary be revoked and that the proceedings continue in the absence of an intermediary. |
[Section 170A (9) inserted by section 68 of Act No. 32 of 2007]
| (10) |
The court shall immediately give reasons for any direction or order referred to in subsection (9)(iv), which reasons shall be entered into the record of the proceedings. |
[Section 170A (10) inserted by section 68 of Act No. 32 of 2007]
[Section 170A substituted by section 1 of Act No. 17 of 2001]
Statistics Act, 1999
