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While the Centre for Child Law argues that when child offenders, witnesses or victims are named by the media before and after the age of 18 it harms them - media houses say there should not be an open ban on the identification of any children involved in criminal cases.
The matter was heard in the Constitutional Court heard on Tuesday.
Advocate Steven Budlender, representing the Centre for Child Law, argued before justices of the Constitutional Court, that children's anonymity should be protected and if the media wants to "out" those accused or convicted of a crime – the media should approach the court.
No explanation
Budlender argued that there was no proper explanation as to why child victims should not be protected.
There were two applications before the Constitutional Court - an application for confirmation of part of an order which was handed down by the Supreme Court of Appeal.
The order declared section 154(3) to be constitutionally invalid to the extent that the provisions do not protect the identity of child victims in criminal proceedings.
A second application for leave to appeal against the second part of the SCA order which held that section154(3) is constitutionally valid even though it does not ensure ongoing anonymity of child accused persons, victims and witnesses once they turn 18.
The court case stems from the Zephany Nurse kidnap matter which was heard in 2016. The case was brought by the Centre for Child Law, Childline, Nirco, Media Monitoring Africa and Zephany, who is referred to as KL in the court papers.
The respondents are 12 media houses including Media24.
READ: Court dismisses application to prevent naming children in cases after they turn 18
During arguments on Tuesday morning, Budlender said: "We accept for present purposes that the position is that the SCA order is limited to criminal proceedings.
"That does mean that there will be some children who remain at risk but if this court confirms the order and sends it to Parliament, you can be rest assured that my clients will be there to lobby Parliament to say, 'fact you should go further than the SCA…," he said.
The application to prevent the naming of child victims, witnesses and offenders after they turn 18 was first dismissed in the Gauteng High Court in Pretoria.
The applicants then appealed to the SCA.
In its ruling, the SCA then ruled that media houses may continue to name children involved in criminal cases after they turn 18 and "become adults", whether they be victims, witnesses or offenders.
News24 previously reported that while the court turned down the CCL's bid to extend identity protection beyond the age of 18 – it has granted protection to child victims of crime and child witnesses.
The SCA ordered that the legislature make the necessary amendments to the Criminal Procedure Act but, in the meantime, has "written" in the prohibition into the relevant clause.
Advocate Budlender said: "The debate today is the default position; the applicant contends for a default position as 154(3) already exists which says you may not identify the children concerned unless the court gives you permission to do so."
"So, the children are protected unless and until the court gives you permission to do so. The media contends for the reverse.
"The media contends that they are able to freely name child victims whenever they like as long as they haven’t testified yet.
"As long as and until the courts prevents them from publishing that identity. We submit with respect that the media stance is patently at odds with what our constitution requires," Budlender argued.
Second chance
Budlender made an example of two girls who were convicted of serious offences. He said the girls had a second chance and had rehabilitated their lives.
Budlender said the girls were living "happy and productive" lives despite having committed serious offences.
"On the media's version, if the Daily Sun or You magazine, discovers that this young woman living in a town in Durban was in fact this person, they would be able to publish it without notice to her and without approaching the court," he argued.
But advocate Wim Trengove representing the respondents argued that the ad hoc protection that the law affords children is the appropriate one.
"What I am here to oppose is the idea that there should be an open ban on the identification of any children involved in criminal cases," Trengove argued.
Unprotected
Speaking about the Zephany Nurse case, Trengove said if the story broke before the criminal proceedings then she would be unprotected.
"The protection of a victim only kicks in when criminal proceedings start off," he said.
Trengove also added that the respondents don’t take issue with the proposition that the child victims of crime often "suffer great trauma by the crime itself and that that trauma is exacerbated by public disclosure of it".
Judgment was reserved.
