Prinsloo and Another v Bramley Children's Home and Others

• Jurisdiction: South Africa
• Judge: Bertelsmann J
• Judgment Date: 06 December 2004
• Counsel: P Kemp SC for the applicants. T Coetzee (with J H Dreyer) for the respondents.
• Hearing Date: 06 December 2004
• Citation: 2005 (2) SACR 2 (T)
• Court: Transvaal Provincial Division
• Docket Number: 2887/04

Bertelsmann J:

The applicants are accused in a criminal trial which will proceed in the High Court early in 2005. They approach the Court by way of urgency for an order granting them D access to information they believe may be contained in files held by the first respondent, the Bramley Children's Home, relating to the second and third respondents, who are both minors.

The charges which the applicants face include charges of indecent assault upon the second and third respondents and charges of possession and production of child pornography. E

The relief which they seek has been set out in the notice of motion in the following terms:

'(d)

The first, second and third respondents are directed to, within two days of this order, grant the applicants supervised access to, and allow applicants to make copies of, F

(i)

all the personal files of second and third respondents in the direct and indirect possession and/or control of first, second and third respondents;

(ii)

all the attendance registers and booking out registers of the first respondent for the period 1 January 1998 up to date.'

Nothing was argued in regard to the prayer for access to records of G bookings out by children in the care of the first respondent and no order was eventually sought in this regard. This part of the notice of motion can consequently be dismissed and nothing further need to be said about it.

No suggestion was made in the founding affidavit that second and H third respondents were in possession of any files. The prayer aimed at obtaining them can therefore also be ignored.

Before dealing with the merits of the balance of the application there are certain initial issues which need to be disposed of.

In the first instance the applicants saw fit to cite the second and third respondents, both minors, individually and by name. They also I saw fit to join the second and third respondents without further ado.

The charges against the applicants as accused involve the minor children. Consequently the minor children may be prejudiced for very obvious reasons if they are identified. The papers do not advance any grounds for their identification. J

Bertelsmann J

Section 154(3) of the Criminal Procedure Act 51 of 1977 reads as A follows:

'No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of 18 years or of a witness at criminal proceedings who is under the age of 18 years: Provided that the presiding Judge or judicial officer may B authorise the publication of so much of such information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person.'

Minor witnesses are consequently protected even from indirect disclosure of their identity: S v Citizen Newspapers (Pty) Ltd and Another; S v Perskorporasie van Suid-Afrika Bpk and Another 1980 (3) SA 889 (T) and, on appeal, S v Citizen Newspapers C (Pty) Ltd en 'n Ander; S v Perskorporasie van SA Bpk en 'n Ander 1981 (4) SA 18 (A).

Although the accused's trial as such has not yet commenced, it is clear that criminal proceedings have already been put in train against them. The charges against them are common cause. A charge-sheet has been drawn up and served upon them. A trial date has been set in the High Court. D

However much this application may have donned the garb of a civil application in motion proceedings, it therefore forms part and parcel of the criminal proceedings.

For this reason, it was and is regrettable that the minors were E identified by name in the Court papers. What is surprising and disconcerting is that first respondent not only failed to raise the issue and continued to mention the minors by name on the papers, but also entered an appearance on behalf of the second and third respondents merely by dint of the fact that they had been entrusted to the first respondent's care. F

This is more surprising in the light of the fact that the third respondent was at the time of the launching of these proceedings no longer being taken care of by first respondent.

Neither s 59 of the Children's Act 33 of 1960, nor s 53 of the Child Care Act 74 of 1983 empower a children's home to represent a G child entrusted to its care at law. A children's home merely assumes the role and function of the custodian parent and if necessary, may be granted additional powers by the Minister. This has not taken place in this case: Ex parte Oppel and Another 2002 (5) SA 125 (C) at 130B in fine; Wolman and Others v Wolman 1963 (2) SA 452 (A). H

When the matter was called, neither the second nor the third respondent were properly before the Court. The third respondent had not been served with the papers because no service other than on the first respondent had been effected. The second respondent was represented by an entity which had no power to do so, but apparently entered an appearance without the knowledge and consent of the second and third respondents or their parents and guardians. I

The matter was rectified by the fact that the parents and guardians of the second and third respondents applied to intervene as interested parties and declared under oath that they intended to represent the minors' interest. J

Bertelsmann J

This joinder application was initially opposed by the applicants on A grounds that are not discernible on the papers. The opposition was abandoned during argument. The applicants must consequently jointly and severally pay the costs of the application to intervene.

There was a further application for joinder by the Director of Public Prosecutions as fourth respondent, which was also granted by reason B of the fact that the Director of Public Prosecutions has a very real and direct interest in the outcome of this application.

Again there was opposition by the applicants, again the opposition was unsuccessful and consequently the applicants must also pay the costs of this application to intervene by the fourth respondent, jointly and severally. C

All the respondents oppose the order sought in the principal application.

The grounds upon which the applicants rely for access to the information contained in the files held by the first respondent, are set out in the first applicant's founding affidavit as follows: D

'(i)

The fact that the respondents all (when viewed prima facie) made voluntary written statements regarding the alleged criminal behaviour by the applicants against themselves, hence voluntarily drawing themselves into the fray of criminal and possible civil litigation between the applicants and inter alia the respondents. First respondent also E made voluntary statements in the national media (specifically Rapport dated 22 December 2004) about the alleged criminal conduct of applicants vis-à-vis respondents. These statements later became the basis for their criminal charges levied against the applicants in casu. . . . (sic)

(ii)

The sexual, behavioural, inter-personal and personal history of the complainants/respondents became relevant to the criminal F trial and preparation of the defence's case due to the fact that the respondents inter alia alleged sexual impropriety and fraud had been committed against themselves by the applicants. (Vide charges 1 (fraud), charges 2, 3, 4 (seduction to commit indecent act), charge 5 and charge 6 (assault) in the charge-sheet; (sic).)

(iii)

The expected further litigation between the applicants, the State and respondents make it in the interest of justice to grant to the applicants access and insight into the personal files and G personal history of the respondents.

(iv)

During argument of an application brought by applicants before Van der Bijl AJ on 2 September 2004, the State inter alia alleged (from the Bar by Adv A J Fourie) that it did not have the said documents (claimed from the State in the said earlier Court proceedings), but that it was in the possession of the respondents. H

(v)

The RSA Constitution, read with the positive law, grant the applicants the right to, under circumstances as we have in casu, have access and insight into the character and personal circumstances of the entities and persons who made serious and prima facie defamatory and injurious allegations against the applicants.' (sic)

These averments make it clear that the interests of the second and I third respondents could seriously be harmed if they are identified regardless of the outcome of the application.

The applicants suggest that the minors might have been involved in sexual...