Child victims cannot be named‚ but protection does not extend beyond 18‚ SCA rules

28 September 2018 - 17:06 By Ernest Mabuza
Judge Wendy Hughes dismissed the application by the centre and KL‚ saying the adult extension sought was neither permissible nor required by the Constitution on July 11 2017
Judge Wendy Hughes dismissed the application by the centre and KL‚ saying the adult extension sought was neither permissible nor required by the Constitution on July 11 2017
Image: 123RF/Sfpater

The Supreme Court of Appeal (SCA) on Friday dismissed an appeal that Zephany Nurse’s true identity should not be revealed once she turned 18.

The court also declared that section 154(3) of the Criminal Procedure Act was constitutionally invalid to the extent that it did not protect the anonymity of children as victims of crimes.

However‚ the court said Zephany Nurse's true identity should remain protected pending any appeal by the parties to the litigation.

The current section 154(3) of the Criminal Procedure Act only states that no person shall publish information which may reveal the identity of an accused or of a witness at criminal proceedings who is under the age of 18 years.

It does not contain a provision prohibiting the naming of children who are victims of crime‚ as is the case of Zephany Nurse - whose original initials are KL - who was abducted from hospital two days after her birth in 1997.

When her biological family discovered the girl's whereabouts in February 2015‚ the woman she had known as her mother was arrested on charges of kidnapping.

The matter was news not only in South Africa but also abroad. Journalists camped outside the child’s home and school. She felt forced to go into hiding.

Following her "discovery"‚ the Centre for Child Law requested the media to protect KL’s anonymity. KL turned 18 on April 18 2015 and the media wanted to name her true identity.

On April 21 2015‚ the centre obtained an interim order in the high court in Pretoria protecting the identity of children who were victims of crime.

The interim interdict formed Part A of the centre's application and in Part B. The centre and KL sought an order declaring that‚ on a proper construction of the provision‚ child victims and witnesses do not forfeit the protection of section 154 (3) when they reach the age of 18.

On July 11 2017 Judge Wendy Hughes dismissed the application by the centre and KL‚ saying the adult extension sought was neither permissible nor required by the Constitution.

The high court granted the centre‚ KL‚ and the media leave to appeal to the Supreme Court of Appeal against the orders it had made and said the order made in April 2015 to protect KL's identity would remain in force pending any appeals arising from this judgment.

In its judgment on Friday‚ the SCA said the extension into adulthood of anonymity of child victims - as sought by the centre and KL - severely restricted the right of the media to impart information and infringed the open justice principle.

“In the absence of any limitation on the nature and extent of the adult extension‚ the relief sought by the appellants is over[ly] broad and does not strike an appropriate balance between the rights and interests involved‚” Judge of Appeal Kevin Swain said in the majority judgment.

Swain said he sympathised with the objective of the centre and KL in seeking to protect the anonymity of children as victims‚ witnesses and offenders of crime once they reached adulthood. “However‚ whether the law requires amendment and if so‚ the nature and extent of any such amendment‚ is a task more appropriately left to the legislature.”

Swain said the SCA order preserved the order made by the high court on April 21 2015 to protect the identity of KL‚ pending the outcome of any appeal to the Constitutional Court.

In the minority judgment penned by Judge of Appeal Nigel Willis‚ he said when it came to the disclosure of the identity of childhood victims of crime‚ the relevant time was the time that the person was a child and not the time since the child had become an adult.

Willis said the knowledge‚ as a child‚ that one’s identity as a victim of crime might be revealed upon the attaining of one’s maturity might haunt that child‚ causing considerable emotional stress. “In my opinion‚ it verges on cruelty to sanction torment such as this.

“A rule of law that‚ save in exceptional circumstances‚ the identity of a child who was a victim of crime should be protected from disclosure for life would be easy for the people of this country to understand‚ remember‚ respect and apply‚” Willis said.

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