This week, the North Gauteng High Court will consider the protection of the identities of child victims, witnesses and offenders. Prof Ann Skelton, Director of the Centre for Child Law at the University of Pretoria, writes about the implications of decisions that might be taken in this regard.
What's in a name? Quite a lot, actually. One's name is a strong signifier of identity. This week, the North Gauteng High Court will consider the protection of the identities of child victims, witnesses and offenders. The case is brought by the lawyers for Zephany Nurse, who previously turned to the High Court to get an order protecting her identity just before she turned 18. Now they are joined by Childline, NICRO and Media Monitoring Africa in a bid to have the current law brought in line with the Constitution. Zephany and the NGOs are going up against 12 media houses, three of which (Media 24, Independent Newspapers and Times Media) are actively opposing the application.
Zephany is not the 'real' name of the girl who discovered, at the age of 17 years and 9 months, that she had been kidnapped as a baby. It was the name she was given as a baby before she was kidnapped but she grew up using another name. She does not want the public to know her real name, see images of her or get any information that will identify her. Zephany does not want to be defined forever as a victim of kidnapping; she wants a shot at living a normal life. And she is not the only person with an interest in the outcome of the case, as other child victims, witnesses and offenders have found their anonymity protection evaporating when they turn 18 – even though the criminal case may be ongoing and their road to recovery and rehabilitation barely begun.
This week's case is about how far the current protection should extend. The Criminal Procedure Act currently provides automatic identity protection for child witnesses and offenders who are involved in criminal proceedings, although a judge may rule that certain identifying information may be made public. Two issues are up for debate. The first is whether the term 'child witness' can be interpreted to include 'child victim'? If not, the applicants say that this is not in line with the Constitution, and must be declared invalid to allow the legislature time to fix the defect. The media groups are arguing that to interpret 'witness' as including 'victim' casts the net too wide. They say this means, for example, that they could never publish the identity of a child who is injured in an accident, in case someone is later charged. But the applicants point out that if victims are not included, a mere witness who saw a bicycle being stolen gets protection, while victims of kidnapping or assault do not have their identities protected – until or unless they are called to testify. This would be unfair, they argue, because being called as a witness is arbitrary. What if the perpetrator is never caught, what if he or she pleads guilty? What if the child is too young or too frightened to testify?
The other issue up for debate is whether the current protections end at 18 years, or whether they continue unless a court rules otherwise. Lately, the media has taken to 'outing' offenders when they turn 18. This happened to the teenage co-accused of Eugene Terreblanche's killer. Although he had just been acquitted of murder, the media chose to name him on his 18th birthday. That same week, an effigy of the adult accused was hung from a tree in Ventersdorp. The boy left town in a hurry, and his current whereabouts are unknown.
Experts who have submitted evidence for the applicants say that child victims who are traumatised during childhood are likely to need more therapy than their adult counterparts. The process starts in childhood and continues into adulthood – so the prospect of possible future exposure of identity is a chilling factor in the recovery of the victim. Later identification can cause regression and a sense of reliving the trauma. In much the same way, child offenders must start on the road to rehabilitation while they are still children, but this process continues long after they turn 18. If they are suddenly identified by the media, or live with the fear of that happening, their rehabilitation efforts will be seriously hampered. Publication of their identities will prevent them from getting jobs, which is already difficult because of their criminal records. If we as society want child victims and offenders to grow up to become functional adults, we have an interest in their recovery or rehabilitation. The Minister for Justice is also a respondent in the case and agrees with the applicants that identification will cause harm. Papers filed on his behalf say the protection pleaded for by the applicants was envisaged by the legislature, and that the he will abide by the court's decision if it finds the relevant section of the Act to be unconstitutional.
The media groups opposing the application say that the public has a right to know about criminal cases, and that they have a duty to inform them. Here we see that media groups also think names are important. These proceeding propose no restriction on them telling the story, it is only identifying information that they cannot publish (unless a court orders otherwise). The media groups admit that their reason for wanting to use the names is to sell their stories, because, after all, they are commercial enterprises.
These are arguments that will be heard in the North Gauteng High Court on Thursday and Friday, 9 and 10 February 2017. Rights to privacy, dignity and best interests will be pitted against freedom of expression, freedom of media and the principle of open justice.
Professor Ann Skelton is the Director of the Centre for Child Law at the University of Pretoria.