THE SOUTH AFRICAN LEGAL SYSTEM

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INTRODUCTION

Appearing as a witness in a court of law is inherently a traumatic experience for any person, the more so when the witness is a young child who is a victim of physical, sexual, or mental abuse. The trauma is increased as it is a strange and formal environment in which the child has to tell strangers in detail about the abusive acts which were perpetrated on him in the accused’s presence. This creates an environment for the intimidation of the child and his family by the perpetrator and his supporters. It is also very disempowering for the child and the parents/caregivers, especially if they do not have an understanding of the function of the court and the trial process.

MOTIVATION FOR THE CHOICE OF THE RESEARCH SUBJECT

The South African legal procedure is based on the accusatorial system. This entails the physical presence of the accused in the court whilst the witness testifies. It is during the trial that the child’s allegations of sexual abuse and the accused’s defence to these allegations are tested. The quality of evidence gathered during the investigation and the cooperation of the role players (investigating officer, prosecutor and intermediary), often determines the outcome of the case. Furthermore, the child’s preparedness will also determine the child’s performance when called upon to testify.

PROBLEM FORMULATION 

Every year, hundreds of cases of sexual and other abuse involving young child witnesses are referred to the courts. The number of these referrals has increased dramatically over the past ten years, and it is likely to increase in the years to come (South African Law Commission, 2001:409). According to Travers (2004/05/18), Captain Shiluvane Malunyane, a member of the Family Violence, Child Protection and Sexual Offences Unit of Pretoria, reported that more than 80 child abuse cases are reported in Pretoria each month.

Purpose of the study

Exploratory research aims to make a preliminary study, gaining information about a topic and the implications thereof, where little is known (Collins, 1993:30). Durrheim (1999:39) described exploratory research as a preliminary investigation into relatively unknown areas of research.”

CHAPTER ONE GENERAL ORIENTATION OF RESEARCH METHODOLOGY
1.1 INTRODUCTION
1.2 MOTIVATION FOR THE CHOICE OF RESEARCH SUBJECT
1.3 PROBLEM FORMULATION
1.4 PURPOSE, GOAL, AND OBJECTIVES OF THE STUDY
1.4.1 Purpose of the study
1.4.2 Goal of the study
1.4.3 Objectives of the study
1.5 RESEARCH QUESTION AND HYPOTHESIS FOR THE STUDY
1.6 RESEARCH APPROACH
1.7 TYPE OF RESEARCH
1.8 RESEARCH DESIGN AND METHODOLOGY
1.8.1 Research design
1.8.2 Research methodology
1.8.2.1 Phase One: Problem analysis and project planning
Identifying and involving clients
Gaining entry and co-operation from settings
Identifying concerns of the population
Analysing concerns or problems identified
Setting goals and objectives
1.8.2.2 Phase Two: Information gathering and synthesis
Using existing information source
Studying natural examples
Identifying functional elements of successful models
1.8.2.3 Phase three: Design
Designing an observational system
Specifying procedural elements of the intervention
1.8.2.4 Phase four: Early development and pilot testing
Developing a prototype or preliminary intervention
Conducting a pilot study
Applying design criteria
1.8.2.5 Phase five: Evaluation and advanced development
Selecting an experimental design
Collecting and analyzing data
Replicating the intervention under field conditions Refining the intervention
1.8.2.6 Phase six: Dissemination
1.9 PILOT STUDY
1.9.1 Literature study
1.9.2 Feasibility of the study
1.9.3 Pilot testing of data-gathering instrument
1.10 THE RESEARCH POPULATION, DELINEATION OF THE SAMPLE AND SAMPLING METHOD
1.10.1 Universum
1.10.2 Research population
1.10.3 Delimitation of the sample
1.10.4 Sampling method
1.11 ETHICAL CONSIDERATIONS
1.12 PROBLEMS EXPERIENCED DURING THE RESEARCH STUDY
1.13 DEFINITIONS OF KEY CONCEPTS
1.14 CONTENTS OF THE RESEARCH REPORT
CHAPTER TWO THE SOUTH AFRICAN LEGAL SYSTEM
2.1 INTRODUCTION
2.2 HISTORICAL BACKGROUND OF THE SOUTH AFRICAN LEGAL SYSTEM
2.3 THE ACCUSATORIAL SYSTEM IN SOUTH AFRICA
2.3.1 Oral evidence in court
2.3.2 Two opposing parties (state prosecutor and defense attorney)
2.3.3 Passive presiding officer
2.3.4 Confrontation
2.3.5 Cross-examination
2.3.6 Rules of evidence
2.4 LEGAL INSTRUMENTS CONCERNING THE CHILD IN SOUTH AFRICA
2.4.1 The Constitution of the Republic of South Africa
2.4.2 The constitutional rights of the child
2.4.3 The Service Charter for victims of crime in South Africa
2.4.3.1 Rights of the victim
2.4.4 United Nations Convention on the Rights of the Child
2.4.4.1 Contents of the Convention
2.4.4.2 New vision of the child
2.4.4.3 Strengths of the Convention on the Rights of the Child
2.5 OTHER STATUTORY INNOVATIONS
2.5.1 Section 158 of the Criminal Procedure Act, 1997 (Act 51 of 1977)
2.5.2 Section 170A of the Criminal Procedure Act, 1977 (Act 51 of 1977)
2.5.2.1 Section 170A and the child witness
2.5.2.2 Section 153(3) and the child witness
2.5.2.3 Criminal Law (Sexual Offences) Amendment Bill, 2005
2.5.3 Statutory innovations and the child witness
2.5.4 Guidelines for drawing up the Desirability Report/170A application
2.6 CLASSIFICATIONS OF CRIME
2.6.1 Assault
2.6.2 Indecent assault
2.6.3 Rape
2.6.4 Incest
2.7 RULES OF EVIDENCE
2.7.1 The competency requirement
2.7.2 The oath
2.7.3 Oral evidence
2.7.3.1 Cautionary rule
2.7.4 Credibility
2.8 RULES OF THE TRIAL
2.8.1 The order of evidence
2.8.2 Examination-in-chief
2.8.2.1 Preparation of the child for trial by prosecutor
2.8.2.2 Avoiding leading questions during examination-in-chief
2.8.2.3 Leading the child witness’ evidence in chief
2.8.3 Cross-examination
2.8.3.1 The purpose of cross-examination
2.8.3.2 Questioning techniques during cross-examination
2.8.3.3 Constitutionality of section 170A of the Criminal Procedure Act, 1977 (Act 51 of 1977)
2.9 RE-EXAMINATION
2.10 SUMMARY
CHAPTER THREE THE DEVELOPING CHILD
3.1 INTRODUCTION
3.2 DEVELOPMENTAL PHASES OF THE CHILD
3.3 THE BRAIN OF THE DEVELOPING CHILD
3.3.1 Functions of the brain
3.3.2 Brain development
3.4 DEVELOPMENT OF PERCEPTUAL SKILLS
3.4.1 Ordering and interpreting of perceptions
3.5 COGNITIVE DEVELOPMENT
3.5.1 The pre-operational phase
Piaget’s key concepts of the pre-operational phase Characteristics of the pre-operational phase Learning during the pre-operational phase
3.5.2 The concrete-operational phase – six to twelve years Piaget’s key concepts of the concrete-operational phase Characteristics of the concrete-operational phase Learning during ther concrete operational phase
3.5.3 Cognitive development and the child in the courtroom
3.5.4 Cognitive limitations of the young child in the court
3.5.5 Development of attention
3.6 MEMORY AND COMMUNICATION
3.6.1 Memory and the child
3.6.2 Models of memory
3.6.3 Retention and retrieval of memory
3.6.4 Strategies for remembering
3.6.5 Maximizing the child’s memory
3.7 LANGUAGE DEVELOPMENT
3.7.1 Oral language components
3.7.2 Language developmental milestones
3.7.3 Developmental difficulties children experience when testifying in court
3.8 MORAL DEVELOPMENT
3.8.1 Moral development in the child
3.8.2 Moral development during early and middle childhood
3.8.3 Moral reasoning versus moral action
3.8.4 Piaget’s view on moral reasoning of the child
3.8.5 Kohlberg’s three level development
Level One: Pre-conventional morality
Level Two: Conventional morality
Level Three: Post-conventional morality
3.9 SOCIAL-EMOTIONAL DEVELOPMENT
3.9.1 Early childhood
3.9.2 Middle childhood
3.9.3 Development of basic emotions
3.9.4 Development of self-conscious emotions and emotional
self-regulation
3.9.5 Understanding emotions of others
3.9.6 Recognizing emotions
3.9.7 Rules when displaying emotions
3.9.8 Temperament
3.9.9 Attachment
3.9.10 Self concept
3.9.11 Erikson’s first five phases of social and emotional development
3.10 SUMMARY
CHAPTER FOUR COMMUNICATING WITH THE CHILD WITNESS
4.1 INTRODUCTION
4.2 TRAUMA
4.2.1 Definition of trauma
4.2.2 Characteristics of child trauma
4.2.3 Impact of childhood trauma on the brain
4.2.4 Symptoms in children who are traumatized by abuse
4.2.5 Traumagenic model of child sexual abuse symptoms
4.2.6 Impact of sexual abuse on the child
4.2.6.1 Loss the sexually abused, traumatized child can experience
4.2.7 Impact of the trauma on the child’s memory
4.2.8 The child witness and the court experience
4.2.9 The child’s perception of stress
4.2.10 Fears and stressors experienced by the child witness
4.2.10.1 Cause of child witness’s anxiety
4.2.11 Diminishing the impact of stressors before the child testifies
4.3 THE CHILD WITNESS TESTIFYING IN COURT
4.3.1 Advantages of testifying in court
4.3.2 Disadvantages of testifying in court
4.4 LANGUAGE SKILLS OF THE CHILD WITNESS
4.4.1 Role of language and the lawyers and public prosecutors
4.5 CROSS-EXAMINATION AND THE CHILD WITNESS
4.5.1 Objectives of cross-examination
4.5.2 The effect of cross-examination on the child
4.5.3 Difficulties the child witness experiences when being cross-examined
4.6 THE CHILD WITNESS IN COURT
4.6.1 Purpose of asking the witness questions
4.6.2 Miscommunication and the child witness
4.6.2.1 Common mistakes of the child witness
4.6.3 Communicative competence of the child witness
4.6.4 The role of emotions on the child’s communicative competence
4.6.5 The role of child’s temperament on his communicative competence
4.6.6 Forms of questions
4.6.7 Questioning strategies
4.6.8 Common errors made in child communication in court
4.7 MEMORY OF THE CHILD WITNESS
4.7.1 Metacognitive development
4.8 PSYCHO-SOCIAL NEEDS
4.8.1 Effects of unsuccessful resolution of psychosocial needs of the child witness
4.9 SUMMARY
CHAPTER FIVE ASSISTING THE CHILD WITNESS DURING HIS COURT EXPERIENCE
5.1 INTRODUCTION
5.2 EMPOWERING THE CHILD WITNESS BY PREPARING HIM FOR THE COURT EXPERIENCE
5.2.1 Relieving the child’s anxieties and fears by preparing the child for court
5.2.2 Aims of Court Preparation
5.2.3 Components for a Court Preparation Program
5.2.3.1 Educational Component
5.2.3.2 Stress reduction component
5.2.3.3 Practical Component
5.2.4 Functions of Court Preparation
5.2.5 Problems experienced by the Court preparation official
5.2.6 Benefits of court preparation
5.2.7 Tools and materials for court preparation
5.3 MODIFICATION OF THE COURT ENVIRONMENT
5.3.1 A Special Courtroom for the Child Witness
5.3.2 Anatomically detailed dolls
5.3.2.1 Use of anatomically detailed dolls by the intermediary during the trial
5.3.2.2 Characteristics of the anatomically detailed doll
5.3.2.3 Dangers on the use of anatomically detailed dolls
5.3.2.4 Difficulties when using the anatomically detailed dolls
5.3.3 Anatomical Drawings
5.4 PROFESSIONALS INVOLVED WITH THE CHILD WITNESS
5.4.1 The intermediary
5.4.2 Background to the introduction of the intermediary system in South Africa
5.4.3 Categories of people who can be an intermediary
5.4.4 Prerequisites of an Intermediary
5.4.5 Role of the intermediary
5.4.6 Problems the intermediary might experience when performing her duties
5.4.7 Compiling the assessment/ desirability report
5.4.7.1 Factors to be considered during assessment of child and questions to be asked and considered when compiling the assessment report
5.4.8 Recommending the use of intermediary
5.4.9 Recommending the use of closed circuit TV system:
5.4.10 Recommendation for the use of the screen
5.4.11 Appropriate evidence
5.5 THE ROLE OF THE PARENTS/CAREGIVER OF THE CHILD WITNESS
5.5.1 Parent – child interaction
5.5.2 Child – parent attachment and memory
5.5.3 Parent’s reaction after disclosure
5.5.4 Impact of sexual abuse on the parent
5.6 EXCEPTIONAL CHILDREN
5.6.1 Attention deficit hyperactive disorder
5.6.1.1 Problems the ADHD child witness can experience in court
5.6.2 Learning Disability
5.6.2.1 Problems for the learning disabled child witness in court
5.7 SUMMARY
CHAPTER SIX A TRAINING PROGRAM FOR INTERMEDIARIES
6.1 INTRODUCTION
6.2 QUALIFICATIONS AND TRAINING OF THE INTERMEDIARY
6.3 TEACHING-LEARNING ENVIRONMENT CONDUCIVE TO LEARNING
6.3.1 Actively involved learning
6.3.2 Trainees must apply what they have learnt
6.3.3 Experiential learning
6.3.4 Teaching objectives
6.3.5 Reflecting on learning
6.4 DEVELOPMENT OF A TRAINING PROGRAM IN THE SOUTH AFRICAN CONTEXT
6.4.1 The old paradigm
6.4.2 The new paradigm
6.5 IMPLEMENTING OUTCOMES-BASED TRAINING AND EDUCATION
6.5.1 What is outcomes-based education and training (OBET)
6.5.2 Characteristics of OBET
6.5.3 Advantages of OBET
6.6 COMPILATION OF THE TRAINING PROGRAM FOR INTERMEDIARIES UNDERTAKEN BY THE RESEARCHER
6.6.1 Planning and design
6.6.2 Learning objectives
6.7 INTERMEDIARY TRAINING COURSE
6.7.1 Competence outcomes of the training program
6.8 CONTENTS OF THE INTERMEDIARY TRAINING PROGRAM
6.9 SUMMARY
CHAPTER SEVEN EMPIRICAL STUDY
7.1 INTRODUCTION
7.2 RESEARCH PROCESS
7.2.1 Goal
7.2.2 Objectives
7.2.3 Research approach and type of research
7.2.4 Research design
7.2.5 Selection of respondents
7.2.6 Ethical aspects
7.2.7 Validity and reliability of measuring instrument
7.2.8 Questionnaire
7.2.8.1 Type of questionnaire
7.2.8.2 Construction of questionnaire
7.3 DATA COLLECTION AND ANALYSIS: SECTION A OF THE EMPIRICAL RESEARCH
7.3.1 Data collection
7.3.2 Data analysis
7.3.3 Questionnaire 1
7.3.4 Questionnaire 2
7.3.5 Evaluation
7.4 SECTION B OF EMPIRICAL RESEARCH
7.4.1 Data Collection
7.4.1 Questionnaire 3
7.4.1.1 Questionnaire for the evaluation of the evaluation of the intermediary training program
7.4.2 Questionnaire 4
7.4.2.1 Questionnaire for the evaluation of the intermediary training Program- Post-test
7.5 COMPARISON BETWEEN PRE-TEST AND POST-TEST BEFORE AND AFTER THE PROGRAM
7.6 SUMMARY
CHAPTER EIGHT CONCLUSIONS AND RECOMMENDATIONS
8.1 INTRODUCTION
8.2 EVALUATION OF THE PURPOSE, GOAL AND OBJECTIVES OF THE STUDY
8.2.1 Purpose of the study
8.2.2 Goal of the study
8.2.3 Objectives
8.2.3.1 Objective 1
8.2.3.2 Objective 2
8.2.3.3 Objective 3
8.2.3.4 Objective 4
8.2.3.5 Objective 5
8.2.3.6 Objective 6
8.2.3.7 Objective 7
8.3 TESTING THE RESEARCH QUESTION AND HYPOTHESIS
8.3.1 Research question
8.3.2 Research hypothesis
8.4 CONCLUSIONS
8.5 RECOMMENDATIONS
8.5.1 Macro level
8.5.2 Meso level
8.5.3 Micro level
8.5.4 Recommendations for further research
8.6 CONCLUDING REMARK
BIBLIOGRAPHY

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A TRAINING PROGRAM FOR INTERMEDIARIES FOR THE CHILD WITNESS IN SOUTH AFRICAN COURTS

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