Centre for Child Law and Others v Media 24 Ltd and Others

• Jurisdiction: South Africa
• Citation: 2017 (2) SACR 416 (GP)

Centre for Child Law and Others v Media 24 Ltd and Others
2017 (2) SACR 416 (GP)

2017 (2) SACR p416

Citation	2017 (2) SACR 416 (GP)
Case No	23871/15
Court	Gauteng Division, Pretoria
Judge	Hughes J
Heard	July 11, 2017
Judgment	July 11, 2017
Counsel	S Budlender SC (with N Dyirakumunda and C McConnachie) for the applicants.; W Trengove SC (with J Bleazard) for the first to third respondents.; MD Mohlamonyane for the thirteenth and fourteenth respondents.

Flynote : Sleutelwoorde

Evidence — Witnesses — Children — Identification of — Prohibition of identification of child witness — Extending to victim under age of 18 years — Prohibition not extending into child's majority — Criminal Procedure Act C 51 of 1977, s 154(3).

Headnote : Kopnota

The abduction 18 years ago of a baby girl from her biological mother led to the woman, whom the girl thought was her mother, being charged with abduction and criminally prosecuted. This unusual story provoked an exceptional public and media interest in the court proceedings and in the D fate of the young girl, the second applicant (KL) in the present application which was brought to prevent her true identity from being disclosed. As a witness in the proceedings KL would be able to protect her anonymity by virtue of s 154(3) of the Criminal Procedure Act 51 of 1977 (the CPA), but since she was to turn 18 before the proceedings started she would lose that status upon becoming a major and the media would then be able to publish E her identity. The applicants obtained an interim order ensuring that her anonymity remained in place until after the finalisation of the case, including until any appeals that might be lodged.

In the present proceedings (referred to as part B of the application) the applicants sought further relief to avoid other difficulties potentially faced by KL, including that s 154 appeared not to provide anonymity to a child victim F under the age of 18 if the victim was not a witness in the matter, and also to secure her anonymity after she turned 18. These deficiencies, it was contended, rendered s 154(3) unconstitutional.

Held, that ss 153(1) and 154(3) read together with s 63(5) of the Child Justice Act 75 of 2008, did not differentiate between whether the child referred to was an accused, a witness, a complainant or a victim. Applying a purposive interpretation, the child victim was covered by s 154(3). There was G accordingly no need to declare the section unconstitutional. (See [54] – [57].)

Held, further, that there could not be open-ended identity protection in favour of children, even into their adulthood, as this would violate the rights of other parties and the other rights of the children themselves when they were H adults. The object of s 154(3) was to protect the child and only the child, and not the adults, as was sought by the applicants. The relief sought by the applicants in this respect would accordingly not be granted. (See [67] – [68].)

Cases cited

Southern Africa

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): dictum in para [23] applied

Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC) (2009 (11) BCLR 1105; [2009] ZACC 18): J referred to

2017 (2) SACR p417

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) A (2014 (8) BCLR 869; [2014] ZACC 16): dictum in para [28] applied

J v National Director of Public Prosecutions and Others 2014 (2) SACR 1 (CC): referred to

Johncom Media Investments Ltd v M and Others 2009 (4) SA 7 (CC) (2009 (8) BCLR 751; [2009] ZACC 5): referred B to

Makate v Vodacom Ltd 2016 (4) SA 121 (CC) ([2016] ZACC 13): referred to

S v Coetzee and Others 1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437; [1997] ZACC 2): referred to

S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312; [2007] ZACC 18): referred to C

Shinga v The State and Another (Society of Advocates (Pietermaritzburg Bar) Intervening as Amicus Curiae); S v O'Connell and Others 2007 (2) SACR 28 (CC) (2007 (4) SA 611; 2007 (5) BCLR 474): considered.

England

In re S (FC)(a Child) [2005] 1 AC 593: referred to

R (on the application of JC) v Central Criminal Court [2014] EWCA Civ 1777: referred to.

European Court of Human Rights

Diennet v France (1995) 21 EHRR 554: considered. E

Legislation cited

The Child Justice Act 75 of 2008, s 63(5): see Juta's Statutes of South Africa 2017/17 vol 1 at 2-685.

The Criminal Procedure Act 51 of 1977, ss 153(1) and 154(3): see Juta's Statutes of South Africa 2016/17 vol 1 at 2-362. F

Case Information

S Budlender SC (with N Dyirakumunda and C McConnachie) for the applicants.

W Trengove SC (with J Bleazard) for the first to third respondents.

MD Mohlamonyane for the thirteenth and fourteenth respondents. G

An application for an order to protect the anonymity of a child victim who was to be a witness in a criminal trial.

Order

(1)

It is declared that the protections afforded by s 154(3) of the Criminal Procedure Act 51 of 1977 apply to victims of crime who are under the age of 18 years.

(2)

The adult extension sought falls to be dismissed, for it is neither permissible nor required by the Constitution. I

(3)

It is directed that the order made by this court of 21 April 2015 to protect the identity of the second applicant will remain in force during any confirmation proceedings, applications for leave to appeal and appeals arising from this judgment.

(4)

Each party is to pay its own costs in respect of part B of this application. J

2017 (2) SACR p418

Judgment

Hughes J:

[1] It is our constitutional duty as society and the courts to protect the rights of children as is enshrined in the Bill of Rights and the Constitution of South Africa. Though the best interests of the child are of paramount importance, this does not trump other rights as protected by B the Bill of Rights and the Constitution.

Introduction

[2] It is common cause that this application deals with the limitations posed by s 154(3) of the Criminal Procedure Act 51 of 1977 (the CPA). The applicants, by virtue of a declaratory order sought, propose to either C read into or add to s 154(3).

[3] To this end the applicants seek in their notice of motion the relief as set out below:

'1.

An order declaring that, on a proper interpretation, the protections D afforded by s 154(3) of the Criminal Procedure Act 51 of 1977 (the CPA) apply to victims of crime who are younger than 18 years of age;

2.

In the alternative, an order declaring s 154(3) of the CPA unconstitutional and invalid to the extent that it fails to confer its protection on victims under 18, as well as an order to remedy the E defect;

3.

An order declaring that, on a proper construction of the provision, child victims, witnesses, accused and offenders do not forfeit the protections of s 154(3) when they reach the age of 18;

4.

In the alternative, an order declaring s 154(3) of the CPA unconstitutional and invalid to the extent that children subject to it F forfeit the protection of s 154(3) when they reach the age of 18, as well as an order to remedy the defect.'

Background

[4] On 21 April 2015, Bertelsmann J granted the applicants an interim interdict to protect the anonymity of the second respondent, KL. G The preceding interim interdict forming part A of the application, the applicants now seek a declaratory order in terms of part B of the aforesaid application.

[5] KL, also referred to in the media and public as 'Zephany Nurse', was 17 years of age when she was informed that she had been abducted from H her biological mother at Groote Schuur Hospital, by the woman whom she thought was her mother who raised her.

[6] The story of the abduction created a frenzy and took centre stage in both the media and public domain. KL was informed that the woman, I whom she had assumed was her mother, had in fact abducted her from her biological mother. This woman was criminally charged and prosecuted for the abduction. Obviously, KL was to be a potential witness in the criminal proceedings. As such, KL would gain protection of anonymity in terms of s 154(3) as a witness. However, the problem was that even before the commencement of the criminal proceedings, KL would J have turned 18 on 28 April 2015. Thus, in terms of s 154(3) the media

2017 (2) SACR p419

Hughes J

were at liberty to disclose and publish her true identity. With the grant A of the interim order sought in part A of the five applicants' application, KL's anonymity was duly granted, ensuring her anonymity remained in place even after she attained 18 until the conclusive determination of part B and any appeals thereto.

The issue

[7] The manner in which proceedings are conducted in criminal cases is enunciated in the CPA, ss 150 – 178. The section pertinent to this application as alluded to above is s 154(3), which I set out below for easy reference: C

'Prohibition of publication of certain information relating to criminal proceedings

. . .

(3) No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of D eighteen years or of a witness at criminal proceedings who is under the age of eighteen years: Provided that the presiding judge or judicial officer may 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.' [My emphasis.] E

[8] The existing CPA protects the identity of an accused and a witness, under the age of 18, who participates in criminal proceedings. This protection may be uplifted by the...