Victory for media freedom on child law aspect

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

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