Vic­tory for me­dia free­dom on child law as­pect

Child of­fend­ers, wit­nesses can be iden­ti­fied at 18, judge rules

The Star Early Edition - - NEWS - ZELDA VEN­TER zelda.ven­

THE ME­DIA yes­ter­day se­cured a le­gal vic­tory when the Pre­to­ria High Court turned down an ap­pli­ca­tion by sev­eral child pro­tec­tion groups that child of­fend­ers and wit­nesses not be iden­ti­fied once they turn 18.

In a rul­ing de­liv­ered by Judge Wendy Hughes, she said the law suf­fi­ciently safe­guarded those chil­dren while they were un­der 18 years of age. She said there could never be open-ended pro­tec­tion for chil­dren once they turned 18.

But the Cen­tre for Child Law, Child­line South Africa and other chil­dren’s rights groups, who launched le­gal pro­ceed­ings against the me­dia, se­cured par­tial vic­tory when the judge ruled that the Crim­i­nal Pro­ce­dure Act, which safe­guarded the rights of chil­dren un­der 18, had to be ex­tended to in­clude child vic­tims.

The ef­fect of this is that chil­dren un­der the age of 18 who fall vic­tim to crime may not be iden­ti­fied. But if left un­chal­lenged, it also means that the me­dia can con­tinue to iden­tify child of­fend­ers, vic­tims and wit­nesses once they have turned 18.

The ap­pli­ca­tion was sparked by the case of the young wo­man who be­came known to the coun­try as Zephany Nurse, as she feared her iden­tity would be re­vealed once she turned 18 in 2015.

Judge Hughes, how­ever, made it clear that Zephany – or KL as she is re­ferred to in court pa­pers – may not be iden­ti­fied at this stage, pend­ing the out­come of any ap­peals fol­low­ing this judg­ment.

The head of the Cen­tre for Child Law, Pro­fes­sor Ann Skel­ton. said they would ap­peal the judg­ment, ex­cept for the or­der af­ford­ing pro­tec­tion to child vic­tims un­der the age of 18. She main­tained the iden­ti­ties of child of­fend­ers, vic­tims and wit­nesses had to stay un­der wraps, even af­ter they turned 18.

Skel­ton said they would launch pro­ceed­ings for leave to ap­peal as soon as pos­si­ble, as these is­sues dealt with chil­dren and had to be re­solved with­out de­lay.

Once the ap­pli­cants had in­sti­tuted ap­peal pro­ceed­ings, the or­der of Judge Hughes would be sus­pended, pend­ing the out­come of the ap­peal pro­ceed­ings.

Zephany, mean­while, said she lived in fear that the pa­parazzi would one day re­lease pic­tures they had taken of her to show what she looked like to­day.

She has been hounded by pho­tog­ra­phers, she said, af­ter it came to light that she had been ab­ducted from hospi­tal shortly af­ter her birth.

She was 17 years and nine months old when her bi­o­log­i­cal par­ents found her.

Be­cause she was un­der 18, she was pro­tected un­der the law from hav­ing her iden­tity re­vealed, but she feared that the mo­ment she turned 18, her face would be splashed all over the me­dia.

Judge Hughes said in her judg­ment it was a con­sti­tu­tional duty of so­ci­ety and the courts to pro­tect the rights of chil­dren.

“Though the best in­ter­ests of the child is of para­mount im­por­tance, this does not trump other rights as pro­tected in the Bill of Rights and the con­sti­tu­tion,” she pointed out.

The ap­pli­cants wanted the Crim­i­nal Pro­ce­dure Act ex­tended, to have a blan­ket pro­tec­tion for these chil­dren once they turned 18.

But Judge Hughes said: “I am of the view that there can­not be open-ended pro­tec­tion in favour of chil­dren, even into adult­hood. This, in my view, would vi­o­late the rights of other par­ties and the other rights of the chil­dren them­selves when they are adults.”

She said, for ex­am­ple, if a child ac­cused, vic­tim, com­plainant or wit­ness as an adult wanted to share their ex­pe­ri­ences, they would not be able to do so. If the pro­tec­tion was open-ended even into adult­hood, there would be a gag on such pub­li­ca­tions.

“This would amount to sti­fling the adult’s right to free­dom of ex­pres­sion. And it takes away an in­di­vid­ual’s right as an adult. This sit­u­a­tion re­sults in one right trump­ing an­other.”

She said the ob­ject of the law pro­tect­ing chil­dren was to pro­tect the child, and only the child.

Me­dia law ex­pert Dario Milo said: “The court is in my view cor­rect that these pro­tec­tions do not ap­ply when the child be­comes an adult.”

It would oth­er­wise sti­fle an in­di­vid­ual’s right as an adult

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