On 28 September 2018, the Supreme Court of Appeal handed down a judgment in a case dealing with the protection of the identities of child victims, witnesses and offenders. The case was initiated by the University of Pretoria’s Centre for Child Law (CCL), with the aim to ensure that child victims of crime, previously not protected by the law, should not have their personal details published in any form of media. Furthermore, all children involved in criminal cases, whether as victims, witnesses or offenders, should have on-going protection even after they turn 18.
This case started when Zephany Nurse discovered, at the age of 17 years and 9 months old, that she had been kidnapped as a baby. She noticed that the media said they would reveal her “true” identity when she turned 18 years. As she did not want to have her identity revealed, she turned to the Centre for assistance. An urgent High Court application resulted in an order, granted in April 2015, which protected her identity – which remains protected until all appeals in this case are exhausted. That order was then followed by a case brought by the Centre, on behalf of Zephany Nurse, Childline, NICRO and Media Monitoring Africa, in order to protect child victims, child witnesses and child offenders from the harm of having their identities exposed in the media, such protection to continue beyond the age of 18 years.
The CCL had argued that this protection extends to child victims as well as child witnesses in criminal proceedings and child offenders. On this issue, the Supreme Court of Appeal (majority judgment as well as minority judgment), ruled in the CCL’s favour and declared that section 154(3) is constitutionally invalid to the extent that it does not protect the anonymity of children as victims of crimes at criminal proceedings. The SCA ruled that Parliament must remedy the constitutional invalidity within 24 months. In the meantime, while parliament remedies the defect, section 154(3) should read as follows:
“No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of 18 years or of a victim or of a witness at criminal proceedings who is under the age of 18 years: Provided that the presiding judge or judicial officer may authorise the publication of so much of such information as he may deem fit the publication thereof would in his opinion be just and equitable and in the interest of any person.”
The CCL is pleased with the first aspect of the judgment which protects child victims and therefore affirms their right to dignity, privacy as well their best interests.
The CCL is however disappointed with the decision by the majority (made up of three of the five justices), to not extend the protection to after the children turn 18 years. The CCL is of the view that for children to fully benefit from having their identity protected when they are under 18 years, this protection should extend to after they turn 18 years of age in order to prevent significant and life-long harms.
The SCA majority held that the adult extension severely restricts the right of the media to impart information and infringes the open justice principle. Furthermore, if the law requires amendment [to extend the protection of children’s identity even after they reach adulthood], that task should be left to the Legislature. Taking into account the fact that the Minister of Justice and Correctional Services supports the victim and adult extension, the Minister can take the appropriate steps to facilitate a public debate on the matter.
The SCA minority judgment (made up of two of the five justices), however held, the view that there was a necessary logic in extending the protection of child victims into their adulthood. The facts that warrant the protection of a child, do not change after that child becomes an adult, they remain constant. The victim of a crime cannot change the fact of their victimhood and it would be unacceptable for victims to have to bear the onus to obtain an injunction against allowing disclosure. If disclosure should be allowed, the onus must rest on the person wishing to make the disclosure (i.e. the media). A constitutional right, even one as important as freedom of expression, may be limited – especially taking into account the best interest of the child as well as the right to privacy and dignity.
The evidence placed before court showed that identification of children’s identities can have a catastrophic impact on their lives. The following harms can result: trauma and regression; stigma; shame; and the fear of being identified. The CCL does not discourage the media from reporting cases. It discourages reporting that identifies child victims, witnesses and offenders before and after they turn 18 years old as such reporting has long lasting negative consequences.
The CCL is of the view that for children to fully benefit from having their identity protected when they are under 18 years, this protection should extend to after they turn 18 years of age in order to prevent significant and life-long harms. The CCL will be appealing to the Constitutional Court.