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

• Jurisdiction: South Africa
• Citation: 2018 (2) SACR 696 (SCA)

Centre for Child Law and Others v Media 24 Ltd and Others
2018 (2) SACR 696 (SCA)

2018 (2) SACR p696

Citation	2018 (2) SACR 696 (SCA)
Case No	871/2017; [2018] ZASCA 140
Court	Supreme Court of Appeal
Judge	Maya P, Willis JA, Swain JA, Van der Merwe JA and Mocumie JA
Heard	September 7, 2018
Judgment	September 28, 2018
Counsel	S Budlender SC (with NL Dyirakumunda and C McConnachie) for the appellants.; W Trengove SC (with J Bleazard) for the first, second and third respondents.; D Mohlamonyane for the fourth and fifth respondents.

Flynote : Sleutelwoorde

Child — As victim of crime — Protection of anonymity — Proper interpretation of s 154(3) of Criminal Procedure Act 51 of 1977 — Exception to open-justice rule and had to be interpreted in favour of individual liberty — C Section not conferring protection on child victims of crime.

Child — As victim of crime — Protection of anonymity — Exclusion of child victim from provisions of s 154(3) of Criminal Procedure Act 51 of 1977 irrational and in breach of s 9(1) of Constitution.

Child — As victim of crime — Protection of anonymity — Extension of protection D after child reaching age of 18 for Parliament to consider.

Headnote : Kopnota

Arising from the wide public interest in the subsequent 'finding' of a 17-year-old girl, who had been abducted as a baby and brought up as the abductor's child, and the imminent possibility of the child victim's identity being revealed when she turned 18, the first and third appellants obtained an E interim interdict to protect her anonymity (the second appellant's).

On the return day they applied for orders: (a) declaring that the protection of anonymity afforded by s 154(3) of the Criminal Procedure Act 51 of 1977 (the CPA) extended to victims of a crime under the age of 18 (victim extension), alternatively, declaring the section unconstitutional for failing to F confer protection on victims of crime who were under 18; and (b) declaring that children did not forfeit the protection offered by the section when they reached the age of 18 (adult extension), alternatively, declaring the section unconstitutional to the extent that such children forfeit the protection upon reaching 18.

The first, second and third respondents were media houses who opposed the application, although they agreed that the protection of children's anonymity G required a case-by-case determination by a court.

The High Court granted an order declaring that the protection afforded by s 154(3) applied also to victims of crime who were under the age of 18 years, but did not continue to protect child victims, witnesses and accused after they turned 18, and dismissed the appellants' alternative constitutional challenges. On appeal,

Held, H per Swain JA (Maya P and Van der Merwe JA concurring) for the majority, that the language of s 154(3) of the CPA was unambiguous and the interpretation contended for by the appellants, whether in respect of the victim extension or the adult extension, was unduly strained. The section was an exception to the open-justice rule and, because it carried a criminal sanction, had to be interpreted in favour of individual liberty. This was I particularly so where a right to freedom of expression was implicated. The court a quo had accordingly erred in the interpretation it placed upon the section in respect of the victim extension. (See [12].)

Held, further, as to the victim extension, that the exclusion of child victims from the provisions of s 154(3) was irrational and in breach of s 9(1) of the Constitution which guaranteed the right to equal protection and benefit J of the law to everyone. Although the section granted anonymity to an

2018 (2) SACR p697

accused and a witness at criminal proceedings, who were under the age of A 18 years, it offered no protection at all to the victim. This denial of equal protection to child victims, who were equally vulnerable, could not be justified. The limitation on the right of the media to impart information was reasonable and justifiable and the constitutional challenge on this basis accordingly had to succeed. (See [29] – [30].)

Held, further, that in the absence of any limitation on the nature and extent of the B adult extension, the relief sought by the appellants was overbroad and did not strike an appropriate balance between the rights and interests involved. The proposed limitation on the right of the media to impart information in this instance was neither reasonable nor justifiable and the constitutional challenge to the provision on this basis accordingly had to fail. (See [27].)

Held, further, that although the court sympathised with the objective of the C appellants in seeking to protect the anonymity of children as victims, witnesses and offenders of crime once they reached adulthood, whether the law required amendment of the section, and, if so, the nature and extent of any such amendment, was a task more appropriately left to the legislature. The Minister of Justice and Correctional Services supported the victim and D adult extensions to the protection of the anonymity of the children, and was therefore able to take the appropriate steps with a view to possibly introducing appropriate legislation in Parliament. (See [33].)

Held, per Willis JA (Mocumie JA concurring) for the minority, that the appeal had to be upheld: s 154(3) was constitutionally invalid to the extent that it did not protect children as victims of crime and insofar as their protection E of them as victims, witnesses and offenders did not extend beyond their reaching adulthood. Parliament was to remedy the constitutional invalidity and pending parliamentary review 'read in' such protection. (See [102] – [103].)

Cases cited

Southern Africa F

AD and Another v DW and Others (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC) (2008 (4) BCLR 359; [2007] ZACC 27): referred to

Argus Printing and Publishing Co Ltd v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160): referred to G

Argus Printing and Publishing Co Ltd and Others v Inkatha Freedom Party 1992 (3) SA 579 (A) ([1992] ZASCA 63): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): referred to H

Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime Prevention and the Re-integration of Offenders, as Amicus Curiae) 2009 (2) SACR 477 (CC) (2009 (6) SA 632; 2009 (11) BCLR 1105; [2009] ZACC 18): referred to

City of Cape Town v South African National Roads Authority and Others I 2015 (3) SA 386 (SCA) ([2015] ZASCA 58): dictum in para [31] applied

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) (1995 (10) BCLR 1382; [1995] ZACC 7): dictum in para [9] applied J

2018 (2) SACR p698

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others A 2003 (2) SACR 445 (CC) (2004 (1) SA 406; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others 2009 (2) SACR 130 (CC) (2009 (4) SA 222; 2009 (7) BCLR 637; [2009] ZACC 8): referred to

Glenister v President of the Republic of South Africa and Others B 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): referred to

Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31 (CC) (2008 (8) BCLR 771; [2008] ZACC 6): dictum in para [161] applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: C In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079; [2000] ZACC 12): referred to

Islamic Unity Convention v Independent Broadcasting Authority and Others D 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): considered

J v National Director of Public Prosecutions and Another 2014 (2) SACR 1 (CC) (2014 (7) BCLR 764; [2014] ZACC 13): referred to

Jacobs en 'n Ander v Waks en Andere 1992 (1) SA 521 (A) ([1991] ZASCA 152): referred to

Johncom Media Investments Ltd v M and Others E 2009 (4) SA 7 (CC) (2009 (8) BCLR 751; [2009] ZACC 5): dictum in para [19] applied

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): referred to

Kruger v Coetzee 1966 (2) SA 428 (A): referred to

MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) (2017 (12) BCLR 1528; F [2017] ZACC 37): referred to

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (2) SACR 493 (SCA) (2007 (5) SA 540; [2007] (9) BCLR 958; [2007] 3 All SA 318; [2007] ZASCA 56): dictum in para [6] applied

Minister of Police v Mbilini 1983 (3) SA 705 (A): referred to

Minister of Welfare and Population Development v Fitzpatrick and Others G 2000 (3) SA 422 (CC) (2000 (7) BCLR 713; [2000] ZACC 6): referred to

My Vote Counts NPC v Minister of Justice and Correctional Services and Another 2018 (5) SA 380 (CC) (2018 (8) BCLR 893; [2018] ZACC 17): distinguished

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others H 1998 (2) SACR 556 (CC) (1999 (1) SA 6; 1998 (12) BCLR 1517; [1998] ZACC 15): dictum in para [35] applied

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 I t...