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, the Supreme Court of Appeal (SCA) has ruled.
However, while the court turned down the Centre for Child Law's (CCL) bid to extend identity protection beyond the age of 18 – it has granted protection to child victims of crime and child witnesses.
The court 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.
The case has its roots in the matter involving "kidnapped baby" Zephany Nurse, who a few months before she turned 18 became aware that certain media houses were going to reveal her "true identity" on her birthday.
The centre secured an interdict on her behalf prohibiting this – an order which still remains in effect.
But the centre pointed out in its court papers before the SCA that there were dozens of other similar cases and it should not be necessary for them to have to approach high courts urgently in order to protect their rights.
While not naming these child victims and accused, the centre used the examples of the sister of axe-killer Henri van Breda, the sole survivor of the attack, the teenage murderer of right-wing politician Eugene Terre'Blanche – who was named once he turned 18 – and a 17-year-old who caused a fatal car accident, who was named when he turned 18 in spite of a court order.
The centre also highlighted another case where a young girl was convicted of murdering her grandparents. She has never been named in the matter and has "managed to get on with her life".
The centre argued that the identification of child victims and offenders "can have a catastrophic impact on their lives", including trauma and regression, stigma, shame, and a constant fear of being identified.
"We do not discourage the media from reporting cases. But we discourage reporting that identifies child victims, witnesses and offenders before and after they turn 18 years old as such reporting has long-lasting negative consequences," it argued.
The case was opposed by most of the major media houses which contended that any adult protection extension would infringe on their rights to freedom of expression, freedom of the media and the principle of open justice.
It was already illegal – and carried a criminal sanction – to name any offender under the age of 18, they argued.
The five judges, while at one on the issue of extending protection to child witnesses, were divided on the extended protection argument.
The majority, Judges Kevin Swain, Mandisa Maya and Christiaan van der Merwe, held that this extension would severely restrict the rights of the media.
Unacceptable for victims to 'bear the onus'
They said that if the law required amendment, the task should be left up to the legislature and, in light of the fact that the Minister of Justice and Constitutional Development supported the extension, he could take the appropriate steps to facilitate public debate on the matter.
Judges Nigel Willis and Baratang Mocumie, disagreed.
They said there was 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, they argued.
"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."
In a media statement, the CCL said, while it was pleased with the first aspect of the judgment "which protects child victims", it intended to take the adult extension issue on appeal to the Constitutional Court to "prevent significant and long-term" harm of adult identification.
The court has ordered the following amendment, effective immediately:
"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."
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