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

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
• Judgment Date: 04 December 2019
• Docket Number: CCT 261/18 [2019] ZACC 46
• Hearing Date: 07 May 2019
• Counsel: S Budlender (with N Dyirakumunda and C McConnachie) for the applicants. W Trengove SC (with J Bleazard) for the first, second and third respondents.
• Court: Constitutional Court

Mhlantla J (Mogoeng CJ, Khampepe J, Ledwaba AJ, Madlanga J, Nicholls AJ and Theron J concurring):

Introduction

[1] 'Stories matter. Many stories matter. Stories have been used to dispossess and to malign. But stories can also be used to empower, and to humanise. Stories can break the dignity of people. But stories can also repair that broken dignity.' [1]

This case is about real-life stories, in particular, about children. It is about the way in which these are told, who decides when this should be done, and the numerous effects of storytelling.

[2] This application arises from an order of the Supreme Court of Appeal. [2] Section 154(3) of the Criminal Procedure Act [3] (the CPA) was declared constitutionally invalid to the extent that the provision does not

Mhlantla J (Mogoeng CJ, Khampepe J, Ledwaba AJ, Madlanga J, Nicholls AJ and Theron J concurring)

protect the identity of child victims [4] of crime in criminal proceedings. The Supreme Court of Appeal also dismissed an appeal against an order that s 154(3) is constitutionally valid, even though it does not confer ongoing anonymity protection to child accused, survivors and witnesses once they turn 18 years of age. [5] The matter comes before us for confirmation of the order of constitutional invalidity. There is also an application to cross-appeal against the declaration of invalidity and one for leave to appeal against the order dismissing an application for ongoing protection.

[3] At the heart of this application are two central issues. The first concerns the scope of protection provided by s 154(3) for the anonymity of child victims in criminal proceedings. The impugned section expressly provides anonymity protections for child accused or witnesses in criminal proceedings, which prevents the publication of any information that discloses the identity of children falling into these classes. These protections may only be lifted with the permission of a court, on a case-by-case basis, if it is just and equitable to do so. However, the protection does not extend to child victims. The second issue concerns ongoing protection, and whether the protection afforded by s 154(3) should extend into adulthood for child accused, witnesses and victims.

[4] These two issues raise a tension that will require a delicate balancing act between various constitutional rights and interests. On the one hand, the best interests of children [6] and their rights to dignity, [7] equality [8] and

Mhlantla J (Mogoeng CJ, Khampepe J, Ledwaba AJ, Madlanga J, Nicholls AJ and Theron J concurring)

privacy [9] , and, on the other hand, the right to freedom of expression [10] and the principle of open justice. [11]

Background

[5] The second applicant, a female individual who was given the pseudonym 'KL', was kidnapped when she was a two-day-old baby and has since been the subject of an ongoing media furore. Seventeen years later, in February 2015, KL was 'found' by her biological parents after she befriended her biological sister by chance whilst attending the same high school. When suspicions were raised about their striking physical resemblance, KL's biological parents made investigative enquiries. Upon receiving confirmation that KL was the missing child, KL was informed that the woman she had known as her mother had in fact abducted her. As a result, she was removed from that woman's care.

[6] The woman was criminally charged and prosecuted. KL was a potential, but unconfirmed, witness in that prosecution. However, before the commencement of the criminal proceedings, KL was to turn 18 in April 2015. As a result, KL was faced with the prospect that s 154(3) of the CPA might not operate to protect her anonymity as a child witness, both for the reasons that she was an unconfirmed witness and that she would not be a child witness by the time of the proceedings.

[7] On 26 February 2015 the story broke that KL, or 'Zephany Nurse', had been found. It attracted intense media attention, with nearly every major print, broadcast and internet media organisation in the country

Mhlantla J (Mogoeng CJ, Khampepe J, Ledwaba AJ, Madlanga J, Nicholls AJ and Theron J concurring)

reporting on it. KL was concerned by the media scrutiny and that her personal information, including her image, the name she grew up with, and her birth date, would be published. Through a social worker, KL was referred to the first applicant, the Centre for Child Law, which agreed to provide her with legal support. The Centre for Child Law wrote to all major media houses seeking an undertaking that they would not reveal KL's identity. That undertaking was not provided, prompting the applicants to launch an urgent application.

Litigation history

High Court

[8] The Centre for Child Law, along with KL and other applicants, launched a two-part application in the High Court, Gauteng Division, Pretoria (High Court). Part A related to an interim order prohibiting the publication of any information which revealed or may reveal the identity of KL and interdicting Media 24, Independent Newspapers and the Times Media Group (the media respondents), from publishing any information which revealed or may reveal the identity of KL. On 21 April 2015 Bertelsmann J granted the applicants an interim interdict to that effect.

[9] In part B the applicants sought a declaration that s 154(3), when properly interpreted, applied to protect the anonymity of child victims of crime, in addition to child witnesses and child accused. The applicants also sought a declaration that the protection afforded by s 154(3) did not cease to apply when a child victim, accused or witness turned 18. In the alternative to this declaratory relief, the applicants sought to have s 154(3) declared constitutionally invalid to the extent that it fails to confer protection to child victims, and that it ceases to apply when a child accused, witness or victim turns 18.

[10] Notably, the fourth respondent, the Minister of Justice and Correctional Services (Minister), and the fifth respondent, the National Director of Public Prosecutions (the NDPP), agreed with the applicants' proposed interpretation of s 154(3) and elected to abide the decision of the court. The Minister contended that a wide interpretation of s 154(3) ought to be ascribed to it, as the legislature did not intend for child victims to be excluded from the protection of s 154(3). The Minister also submitted that child accused, victims or witnesses would suffer prejudice if the anonymity protection were removed once they turned 18.

[11] The media respondents opposed both the applicants' proposed interpretations of s 154(3) and the constitutional challenges, arguing that non-compliance with the section carries a criminal sanction. According to the media respondents, there ought to be a presumption in favour of individual liberty. The language and purpose of the section are to protect children who participate in criminal proceedings, and only protect child accused or witnesses during criminal proceedings while they are under 18. According to the media respondents, the declaratory

Mhlantla J (Mogoeng CJ, Khampepe J, Ledwaba AJ, Madlanga J, Nicholls AJ and Theron J concurring)

relief sought by the applicants fails to strike a balance between the constitutional rights in issue.

[12] The High Court held that a purposive approach to the interpretation of s 154(3) meant that the provision could be read to extend anonymity protection to child victims, but in criminal proceedings only. [12] In any event, the High Court held that the best-interests-of-the-child principle permissibly limits both the right to freedom of expression and the principle of open justice. On the issue of ongoing protection, it held that s 154(3) should not be interpreted to provide open-ended anonymity protection for child accused, witnesses and victims even when they become adults. The High Court reasoned that such an interpretation would infringe the rights of other parties and would stifle the ability of adults to freely express their experiences. Further, it held that such an interpretation would be inconsistent with the purpose of the provision, which was limited to protecting children — and only children.

[13] Following this, the applicants appealed to the Supreme Court of Appeal against that part of the High Court order dismissing the application for ongoing protection. The media respondents cross- appealed on the first question, whether s 154(3) could be read to apply to child victims.

Supreme Court of Appeal

Majority judgment

[14] The majority judgment held that s 154(3) was constitutionally invalid to the extent that it does not protect the anonymity of child victims. [13] The majority held that the complete lack of protection for victims is irrational and in breach of s 9(1) of the Constitution. It held that the denial of equal protection to child victims could not be justified, and that limiting the media's rights by way of protecting child victims would be reasonable and justifiable. Consequently, s 154(3) was declared constitutionally invalid and Parliament was given 24 months to remedy the defect. An interim reading-in was made to s 154(3). [14]

[15] In respect of the proposed ongoing protection, the majority held that it was overbroad and imbalanced; and that it would unjustifiably limit the open-justice principle and the right of the media to impart information. The majority, while sympathetic to the applicants' objectives, took the view that such an amendment was a task more appropriately left to the legislature. The majority thus dismissed the appeal in respect of the ongoing protection application and took the view that the

Mhlantla J (Mogoeng CJ, Khampepe J, Ledwaba AJ, Madlanga J, Nicholls AJ and Theron J concurring)

Minister, who had supported the challenge, was willing and...