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Anonymity of child victims by Waseem Hussain

Waseem Hussain

In Centre for Child Law and Others v Media 24 Limited and Others [2019] ZACC 46 (4 December 2019 the Constitutional Court held that current legislation inadequately protects the identity of child victims of crime.  The case deals with the scope of protection provided by section 154(3) of the Criminal Procedure Act 51 of 1977 (“the Criminal Procedure Act”), which  prohibits the media from publishing any information which reveals or may reveal the identity of an accused or a witness at or in criminal proceedings if they are under the age of 18, unless a court orders that the publication would be just and equitable.

FACTS

This case arose from the widely publicised abduction of Zephany Nurse, who was abducted at birth from her biological parents in the maternity ward at a Cape Town hospital.  At the age of 17 she discovered that the woman who raised her was in fact her abductor, who was subsequently prosecuted.  The trial commenced after Zephany had turned 18 and attracted a lot of media attention.

The Centre for Child Law sought a declaration in the Western Cape High Court that section 154(3) of the Criminal Procedure Act, properly interpreted, also protects the anonymity of child victims of crime, and not only child witnesses and accused persons at criminal proceedings.  The alternative declaration sought was that section 154(3), if it fails to provide for that protection, was constitutionally invalid.  A further declaration sought was that the protection in section 154(3) should extend beyond adulthood and should also protect the identity of child accused, witnesses and victims after they turn 18 (referred to as “ongoing protection”).

THE HIGH COURT

The High Court held that the wording of section 154(3) could be purposively interpreted to extend to child victims, but that it should not be interpreted to provide ongoing protection.

THE SUPREME COURT OF APPEAL

On appeal to the Supreme Court of Appeal (“SCA”) the SCA held that section 154(3) was unconstitutional insofar as it did not protect child victims at criminal proceedings, but refused to extend the publication ban on identities of accused persons, witnesses or victims beyond the age of 18 as it was “overbroad” and would infringe on the open justice principle and severely restrict the right of media to impart information.

 

THE CONSTITUTIONAL COURT

On appeal to the Constitutional Court this court held that the overarching purpose of section 154(3) of the Criminal Procedure Act is child protection, more specifically protection from the potentially harmful effects of publication of their names and identities as a result of being implicated in criminal proceedings.  Because only child accused and child witnesses at criminal proceedings were protected against their identities being published, with no similar protection for child victims, there is a clear gap in the law.

This gap in section 154(3) limits the right to equality and amounts to arbitrary differentiation in that child victims of crime were not offered equal protection and benefit of the law, which is contrary to the best interest of children and their rights to privacy and dignity.

The Constitutional Court therefore confirmed the declaration of invalidity of section 154(3).

With respect to ongoing protection the Constitutional Court held that this is in the best interest of the child and the child’s rights to dignity and privacy require ongoing protection for child accused, witnesses and victims.  This ongoing protection will not constitute a severe encroachment on media freedom.

The Constitutional Court accordingly declared section 154(3) invalid and in the interim ordered that the child victim’s identity be protected and that a person who is subject to the protection of section 154(3) does not forfeit the protection upon reaching adulthood, but is entitled to consent to the publication of their identity, and if consent is refused, a competent court may be approached by the media to request the publication ban to be uplifted.

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