Child crime victims cannot be named, even after turning 18 — ConCourt
The anonymity of child victims or perpetrators of crime should remain beyond the age of 18, unless they consent to revealing their identity after they have reached adulthood.
The Constitutional Court made this provisional order on Wednesday as it extended the protection of anonymity to child victims, witnesses and perpetrators of crime.
The court ruled on Section 153(4) of the Criminal Procedure Act, which before expressly provided anonymity protections for accused children or witnesses in criminal proceedings, but did not extend these protections to child victims.
Last year, the Supreme Court of Appeal held that section 154(3) was constitutionally invalid to the extent that it did not protect the anonymity of children who were victims of crime.
That part was confirmed by the Constitutional Court on Wednesday.
The court also declared that the same section was constitutionally invalid in that the protection received by child victims, witnesses and accused did not extend beyond them reaching the age of 18 years.
But the court suspended a declaration that the section was invalid for two years, allowing parliament time to correct the defect.
The court said pending parliament’s actions, section 154(3) should provide that an accused person, witness or victim under the age of 18 did not forfeit protections afforded upon reaching the age of 18, but may consent to the publication of their identity after reaching 18.
The court stated that if consent was refused, their identity may be published at the discretion of a competent court.
The ruling has its genesis in the case of Zephany Nurse, whose original initials are KL. She was abducted from a hospital two days after her birth in 1997.
In 2017, the high court in Pretoria dismissed an order sought by the Centre for Child Law declaring that child victims and witnesses do not forfeit the protection of section 154 (3) when they reach the age of 18.
But the SCA ruled last year that the extension into adulthood of anonymity of child victims severely restricted the right of the media to impart information and infringed on the open justice principle.
In a majority judgment penned by Justice Nonkosi Mhlantla, she said the issues raised by the matter required a delicate balancing act between various constitutional rights and interests.
“On the one hand, the best interests of children and their rights to dignity, equality, privacy, and on the other hand, the right to freedom of expression and the principle of open justice,” Mhlantla said.
She said it was not in the best interests of the child, who had already been exposed to the harsh realities of life, to live in fear that their identity and involvement could be exposed once they turn 18.
Two other partial dissenting judgments agreed with Mhlantla on the issue of protecting the identity of a child victim, but did not agree with Mhlantla’s finding that protection should extend beyond 18.