Additional protection for children
Accused, victims, witnesses in cases may not be identified even after the age of 18
THE names of a child accused, witnesses and victims in criminal proceedings may not be revealed even after they have turned 18.
However, in its ruling the Constitutional Court emphasised that once a child embroiled in criminal proceedings turned 18, they may consent to the publication of their identity. If they refuse consent, their identity may only be published at the discretion of a competent court.
Parliament was given 24 months to correct what the court regarded as constitutional defects in the Criminal Procedure Act in as far as it did not afford the additional protection to children.
The order comes as a victory to the Centre for Child Law (CCL), which called for the additional protection of children embroiled in the criminal legal system.
The Supreme Court of Appeal (SCA) earlier ruled that sections of the Criminal Procedure Act which did not protect the identity of child witnesses in criminal cases had to be declared unconstitutional. This was because the act did protect both child accused and witnesses, but not child victims.
The Concourt has now confirmed that child victims should be afforded the same protection.
The SCA, however, at the time turned down an application by the Centre for Child Law that child accused, witnesses and victims should continue to remain unidentified even after they had turned 18.
The CCL was not happy with that ruling and asked the apex court to review the issue. Six justices of the Concourt yesterday extended the protection to child witnesses, accused and victims into adulthood, while two minority judgments differed on the issue relating to ongoing protection.
In the majority judgment, written by Justice Nonkosi Mhlantla, it was said that these issues require a delicate balancing act between various constitutional rights and interests – on one hand, the best interest of children and their rights to dignity and privacy, and on the other the rights to freedom of expression and the principle of open justice.
The issue was sparked by the then 18-year-old kidnap victim identified as Zephany Nurse. The North Gauteng High Court, Pretoria, ruled that her identity may not be revealed after she turned 18, pending the outcome of the constitutional challenge.
But Nurse – Miché Solomon – asked for the ban to be lifted following the publication of a book on her life story.
This issue first arose when some media outlets threatened to reveal her identify once she turned 18. They argued that the protection a child enjoyed as a matter of law would come to an abrupt end and disappear as soon as a child turned 18, which left Nurse and others in the same boat exposed to having their real identity made known. Justice Mhlantla said the purpose of freedom of expression and open justice was compelling, but the serious harm caused to children involved in the criminal justice system outweighed the minimal harm to open justice.
Justice Edwin Cameron and Justice Johan Froneman, in a minority judgment, agreed that child victims should be protected, but disagreed with the finding that ongoing protection should be afforded to all these children after they had turned 18.
They said there was a right to know what was happening in the world. “We should be able to know, because knowledge affords options, invites challenges and empowers our human capacities. Governmental power should not be exercised to leave us in ignorance, for that infringes the dignity afforded to our condition as humans.”
Harm to kids outweighs minimal harm to open justice system Justice Nonkosi Mhlantla CONCOURT JUDGE