Prinsloo and Another v Bramley Children's Home and Others

• Jurisdiction: South Africa
• Citation: 2005 (2) SACR 2 (T)

Prinsloo and Another v Bramley Children's Home and Others
2005 (2) SACR 2 (T)

2005 (2) SACR p2

Citation	2005 (2) SACR 2 (T)
Case No	2887/04
Court	Transvaal Provincial Division
Judge	Bertelsmann J
Heard	December 6, 2004
Judgment	December 6, 2004
Counsel	P Kemp SC for the applicants.; T Coetzee (with J H Dreyer) for the respondents.

Flynote : Sleutelwoorde

Witnesses — Minor F witnesses — Identification of minor accused and G witnesses — Section 154(3) of Criminal Procedure Act 51 of 1977 — Revelation of persons under age of 18 prohibited — Despite fact that proceedings took on guise of civil proceedings, it nevertheless formed part of criminal proceedings — Minors not to be identified.

Fundamental rights — Right to a fair trial — Right of access to H information — Applicants applying for access to records relating to minors and held by children's home — Paramount rights of minor respondents to be weighed against right to fair trial of applicants — Onus on applicants to persuade

2005 (2) SACR p3

Court that limitation on rights of minors A justified — Grounds for relief sought in casu found to be premature and lacking in factual content.

Headnote : Kopnota

The applicants, who were facing criminal charges of, inter alia, indecent assault upon the second and third respondents and possession and production of child pornography, applied for an order granting them access to information in the possession of the first respondent. The information sought related B to the second and third respondents, both minors, and suspected by the applicants to be of importance in their possible cross-examination of witnesses in the forthcoming criminal trial. The applicants cited the second and third respondents individually and by name and joined them as parties in the application.

Held, that, even though the application took on the guise of civil proceedings, it nevertheless formed part of the criminal C proceedings. It was therefore, and in terms of s 154(3) of the Criminal Procedure Act 51 of 1977, regrettable that the minors were identified by name in the Court papers. (At 5d - e.)

Held, further, that the minors were not to be identified, neither by the media nor by anybody else, by name or otherwise, either directly or indirectly. (At 7e - f.) D

Held, further, that as the first respondent was not empowered by any legislation to represent a child entrusted to its care at law, it was disconcerting that the first respondent entered an appearance on behalf of the second and third respondents and did so without their or their parents' and guardians' knowledge. (At 5f and 5i.)

Held, further, that, just as the applicants had a right E to a fair trial, so too were the rights of the second and third respondents safeguarded by the Bill of Rights of the Constitution of the Republic of South Africa Act 108 of 1996. (At 8.) The onus was, therefore, on the applicants to persuade the Court that the limitation of the minors' paramount right to privacy, emotional and psychological integrity and dignity was justified when weighed against their right to a fair trial. (At 11h - i.) F

Held, further, that the grounds advanced for the relief sought could fairly be described as vague, superficial and unsupported by factual allegations other than broad generalised statements. (At 7f and 11b - c.)

Held, accordingly, that as the application was premature and lacking in factual content, it was dismissed with costs. (At 13h - 14a.) G

Annotations:

Cases cited

Reported cases

Belo v Commissioner of Child Welfare, Johannesburg and Others; Belo v Chapelle and Another [2002] 3 All SA 286 (W): referred to

Ex parte Oppel and Another 2002 (5) SA 125 (C): referred to H

J and Another v Director-General, Department of Home Affairs, and Others 2003 (5) SA 621 (CC) (2003 (5) BCLR 463): referred to

Kotze v Kotze 2003 (3) SA 628 (T): referred to

Meyers v Marcus and Another 2004 (5) SA 315 (C): dictum in paras [26] - [37] applied

S v Boesak 2001 (1) SACR 1 (CC) (2001 (1) SA 912; 2001 (1) BCLR 36): referred to I

S v Citizen Newspapers (Pty) Ltd and Another; S v Perskorporasie van Suid-Afrika Bpk and Another 1980 (3) SA 889 (T): referred to

S v Citizen Newspapers (Pty) Ltd en 'n Ander; S v Perskorporasie van SA Bpk en 'n Ander 1981 (4) SA 18 (A): referred to

S v M 2002 (2) SACR 411 (SCA) (2003 (1) SA 341): applied J

2005 (2) SACR p4

Shabalala and Others v Attorney-General, A Transvaal, and Another 1995 (2) SACR 761 (CC) (1996 (1) SA 725; 1995 (12) BCLR 1593; [1996] 1 All SA 64): applied.

Swarts v Swarts en Andere 2002 (3) SA 451 (T): referred to

Wolman and Others v Wolman 1963 (2) SA 452 (A): referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, B ss 154(3) and 227(2): see Juta's Statutes of South Africa 2003 vol 1 at 1-359 and 1-374.

Case Information

Application for an order granting applicants access to information pertaining to their criminal trial. The facts appear from the reasons for judgment. C

P Kemp SC for the applicants.

T Coetzee (with J H Dreyer) for the respondents.

Judgment

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

2005 (2) SACR p5

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...