IN THE HIGH COURT OF SOUTH AFRICAGAUTENG DIVISION, PRETORIA
Case no: 23871/15In the matter between:
CENTRE FOR CHILD LAW 1st Applicant
KL 2nd Applicant
CHILDLINE SOUTH AFRICA 3rd Applicant
NATIONAL INSTITUTE FOR CRIME PREVENTION AND THE REINTEGRATION OF OFFENDERS 4th Applicant
MEDIA MONITORING AFRICA TRUST 5th Applicant
and
MEDIA 24 LIMITED 1st Respondent
INDEPENDENT NEWSPAPERS (PTY) LTD 2nd Respondent
TIMES MEDIA GROUP LIMITED 3rd Respondent
INFINITY MEDIA NETWORKS (PTY) LTD 4th Respondent
TNA MEDIA (PTY) LTD 5th Respondent
PRIMEDIA (PTY) LTD 6th Respondent
SOUTH AFRICAN BROADCASTING CORPORATION 7th Respondent
E.TV (PTY) LTD 8th Respondent
ELECTRONIC MEDIA NETWORK (PTY) LTD 9th Respondent
THE CITIZEN (PTY) LTD 10th Respondent
MAIL AND GUARDIAN MEDIA LIMITED 11th Respondent
SOUTH AFRICAN NATIONAL EDITORS FORUM 12th Respondent
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES 13th Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 14th Respondent
APPLICANTS’ HEADS OF ARGUMENT
1
TABLE OF CONTENTS
OVERVIEW.............................................................................................................3The applicants and their approach..........................................................................4
The attitude of the respondents...............................................................................7
Preliminary observations.........................................................................................8
Structure of these submissions.............................................................................10
PART 1: LEGAL AND FACTUAL BACKGROUND.............................................11Legislative framework............................................................................................11
The evidence of the individuals affected...............................................................13
Expert evidence on the harms of identification......................................................27
PART 2: THE RIGHTS AT STAKE.......................................................................39The best interests of the child...............................................................................39
Privacy and dignity................................................................................................44
Equality.................................................................................................................47
Fair trial rights.......................................................................................................48
Freedom of expression and open justice..............................................................48
PART 3: PROTECTION FOR CHILD VICTIMS OF CRIME.................................57The need to protect child victims’ anonymity.........................................................57
Properly interpreted, section 154(3) protects child victims....................................75
Alternatively, section 154(3) is unconstitutional.....................................................83
PART 4: PROTECTION FOR CHILD VICTIMS, WITNESSES, ACCUSED AND OFFENDERS AFTER 18......................................................................................99The need for ongoing protection in adulthood.......................................................99
Properly interpreted, section 154(3) confers ongoing protection.........................114
Alternatively, section 154(3) is unconstitutional...................................................118
CONCLUSION....................................................................................................124
2
OVERVIEW
1 Children who are victims, witnesses, or perpetrators of crime are in an
acutely vulnerable position. If their identities are revealed in the media or in
other public forums, they face severe and life-long harms.
2 For this reason, section 154(3) of the Criminal Procedure Act 51 of 1977
(“the CPA”) protects the anonymity of children in the criminal justice system.
It provides that:
“No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of 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 authorize 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.”
3 Section 154(3) of the CPA makes anonymity the default position for children.
These protections may only be lifted with the permission of a court, provided
that it is just and equitable to do so.
4 It concerns the scope and duration of the anonymity protections afforded by
section 154(3) of the CPA. It raises two primary issues.
4.1 First , does section 154(3) truly exclude child victims from its protection
as members of the media contend, while providing automatic
protection to children who are accused of crimes or are witnesses? If
so, is this consistent with the Constitution?
3
4.2 Second , do children who are protected under section 154(3) of the
CPA lose all protection as soon as they turn 18, again as members of
the media contend? If so, is this consistent with the Constitution?
The applicants and their approach
5 These heads of argument deal only with Part B of this application. In Part A,
the applicants obtained an interim interdict to protect the anonymity of the
second applicant, KL, pending the finalisation of Part B.1
5.1 KL is known to the media and public as “Zephany Nurse”, although
she uses a different name.
5.2 In February 2015, KL discovered that she had been abducted as a
baby from Groote Schuur hospital. At this time, KL was 17 years old
and in her matric year.
5.3 In the ensuing media frenzy, there were constant threats that KL’s
identity would be revealed. This risk increased as her 18 th birthday
approached, as many members of the media appeared to believe that
they would be free to identify her after she turned 18.2
5.4 The interdict obtained in Part A protects KL’s anonymity pending the
finalisation of this application.
6 KL’s case highlights the important need for clarity on the scope and duration
of the protection afforded by section 154(3) of the CPA.
1 Order of Bertelsmann J on 21 April 2015; Supplementary founding affidavit (“SFA”), Annexure AMS 24, pp 259 – 261.
2 FA, pp 33 – 43, paras 52 – 76.
4
6.1 As a victim of crime who had at that stage not yet testified at trial,
there was uncertainty whether section 154(3) protected KL’s
anonymity at all.
6.2 Furthermore, some members of the media took the position that any
protection afforded to KL under section 154(3) of the CPA would
automatically terminate on her 18th birthday.3
7 KL is, however, not alone. As the evidence makes clear, other child victims
also face the risk of being identified in the media as a result of the current
lack of clarity over the application of section 154(3) of the CPA to child
victims. Furthermore, all children who are subject to the protection of section
154(3) face the risk of having their identities revealed as soon as they turn
18.
8 For these reasons, the relief sought in Part B is essential to ensure ongoing
protection for KL and other child victims, witnesses, accused and offenders.
9 This is why the application is brought not merely by KL herself, but also by
four highly respected NGOs specialising in this area – the Centre for Child
Law, ChildLine, NICRO and Media Monitoring Africa.
10 In respect of the first issue identified in paragraph 4 above, the applicants
contend that child victims of crime are not and cannot be excluded from the
protections of section 154(3) of the CPA merely because they do not testify
at trial. They therefore seek:
3 FA, p 41, para 74. See in particular Annexure AMS 17, p 151.
5
10.1 An order declaring that, on a proper interpretation, the protections
afforded by section 154(3) of the CPA apply to victims of crime who
are younger than 18 years of age.4
10.2 In the alternative, an order declaring section 154(3) of the CPA
unconstitutional and invalid to the extent that it fails to confer its
protection on victims under 18, as well an order to remedy the
defect.5
11 In respect of the second issue identified in paragraph 4 above, the applicants
contend that children who are subject to section 154(3) do not and cannot
lose all protection when they turn 18. They therefore seek:
11.1 An order declaring that, on a proper interpretation of the provision,
child victims, witnesses, accused and offenders do not forfeit the
protections of section 154(3) when they reach the age of 18.6
11.2 In the alternative, an order declaring section 154(3) of the CPA
unconstitutional and invalid to the extent that children subject to it
forfeit the protections of section 154(3) when they reach the age of
18, as well an order to remedy the defect.7
4 Notice of Motion, Part B, prayer 1; Record, p 4.5 Ibid, prayer 2; Record, p 4 – 5.6 Ibid, prayer 3; Record, p 5.7 Ibid, prayer 4; Record, p 5.
6
The attitude of the respondents
12 The Minister for Justice and Correctional Services (“the Minister”) is
responsible for the administration of the CPA. The Minister does not oppose
any part of this application.
12.1 The Minister agrees with the applicants that, on a proper
interpretation, section 154(3) protects the anonymity of child victims
of crime and that children who are subject to its protection do not
forfeit this protection when they turn 18.1
12.2 Even in respect of the alternative constitutional challenges, the
Minister does not oppose these and instead abides them.2
13 Accordingly, the only parties opposing the relief sought in this application are
the first to third respondents (“the media respondents”), owners of some of
the largest and most powerful media organisations in South Africa.3
13.1 The media respondents take the position that section 154(3) of the
CPA does not protect the anonymity of children who are victims of
crime, such as KL.
13.2 They further contend that children who are protected by section 154(3)
of the CPA automatically lose all protection as soon as they turn 18.
1 Minister’s Answering Affidavit (“Minister’s AA”), pp 781 – 788, paras 3, 5.2 Ibid, paras 4, 6. 3 See FA, p 16 – 18, paras 11 – 13 for a list of publications owned by the media respondents.
7
Preliminary observations
14 There are two preliminary observations that are of importance.
15 First, the approach urged by the applicants is not an attempt to prevent all
media reporting of crimes involving child victims or child offenders.
15.1 Even once the applicants’ arguments are upheld, section 154(3) does
not prevent the media from reporting on the trial or from attending
court. Subject to other statutory restrictions1 not at issue in this
application, the media remain at liberty to report on all matters arising
from the trial, save those details that reveal or may reveal the identity
of children involved in these proceedings.
15.2 The prohibition is also not absolute or permanent. It expressly
empowers courts, upon application, to permit the publication of
identifying information provided this is “just and equitable and in the
interests of any particular person”.
15.3 This is necessary to ensure that it is the courts – rather than the media
houses themselves – retain the final decision on whether to allow the
publication of identifying information in given cases. This ensures that
the best interests of the child will not be compromised.
15.4 It is also necessary to ensure that if any party has to approach the
courts regarding whether publication of identifying information is to be
allowed in a specific case, it is the media that must do so. The 1 Particularly section 63(5) of the Child Justice Act 75 of 2008.
8
suggestion by the media respondents that this burden to approach the
courts should fall instead on the vulnerable children themselves is
simply not sustainable, as we demonstrate in what follows.
16 Second, it is significant that some of the publications owned by the media
respondents have shown little regard for children’s rights in their reporting.
16.1 As is evident in the examples presented in this application, these
publications have consistently revealed the identities of child victims
and have also revealed the identities of offenders after they turn 18.2
16.2 By their own admission, these publications have done so in the belief
that stories that reveal the identities of children are more lucrative
than those that do not.3
16.3 In short, the media respondents have made a business out of
disregarding the best interests and privacy rights of some of the most
vulnerable children. Their opposition to this application is, in large
part, an attempt to preserve those commercial interests.
16.4 As we demonstrate in these heads of argument, the media
respondents’ position is untenable. Their position fails to strike an
appropriate balance between the rights of vulnerable children and
countervailing interests because it largely disregards the interests of
children.
2 See, for example, coverage of KL: AMS 42 – 46, pp 929 - 937; coverage of MVB: Annexures LB 1 -2, 7, 10-11, pp 884 – 898, 912 – 915, 922 – 924; coverage of PN: Annexures WRB 5 – 6, pp 431 – 447; coverage of DS: Annexure DS 1, pp 274 – 275; AMS 29 – 30, pp 314 – 323; coverage of MO: AMS 31, pp 324 – 325. See also, the media coverage on child victims of gang violence, Annexure SS 7 – 8, pp 586 – 606.
3 Media Respondents’ Answering Affidavit (“AA”), pp 507 – 508, paras 88 – 90.
9
Structure of these submissions
17 In what follows, we deal with the issues that arise in this application in four
parts.
17.1 In Part 1, we address the legal and factual background to this
application, including the extensive expert evidence on the harms of
identification in the media and other public forums.
17.2 In Part 2, we set out the constitutional rights at stake and the relevant
legal principles.
17.3 In Part 3, we explain why section 154(3) of the CPA must be
interpreted to protect children who are victims of crime or,
alternatively, must be declared unconstitutional.
17.4 In Part 4, we explain why section 154(3) of the CPA must be
interpreted to protect child victims, witnesses, accused and offenders
after they turn 18 or, alternatively, must be declared unconstitutional.
10
PART 1: LEGAL AND FACTUAL BACKGROUND
18 In this part, we address three issues:
18.1 We begin by outlining section 154(3) of the CPA in the context of the
broader legislative framework.
18.2 We then deal with the evidence regarding the experiences of KL and
other children who have been identified in the media or face the threat
of being identified.
18.3 Third, we summarise the expert evidence on the harms of
identification in the media and other public forums.
Legislative Framework
19 Section 154(3) of the CPA establishes the default position that the
publication of information that reveals or may reveal the identities of the
children concerned is prohibited.
20 As we have indicated, the prohibition is also not absolute or permanent. It
expressly empowers courts, upon application, to permit the publication of
identifying information provided this is “just and equitable and in the interests
of any particular person”.
21 Two categories of children are expressly protected by section 154(3):
21.1 “[A]n accused under the age of 18 years”; and
11
21.2 “[A] witness at criminal proceedings who is under the age of eighteen
years”
“An accused under the age of 18 years”
22 With regard to “an accused under the age of 18 years”, section 154(3) has to
be considered together with the broader framework of the Child Justice Act
75 of 2008 (“CJA”).
23 Under the CJA, all children accused of committing crimes must be tried in
child justice courts in accordance with the procedures set out in that Act, and
any court before which an accused child appears is a child justice court.
Section 63(6) of the CJA makes section 154(3) of the CPA applicable to
these proceedings —
“Section 154(3) of the Criminal Procedure Act applies with the changes required by the context regarding the publication of information.”
24 Accordingly, where we refer to section 154(3) of the CPA, this must be
understood as including a reference, where applicable, to section 63(6) of
the CJA.
“A child witness at criminal proceedings”
25 Section 154(3) of the CPA also protects the identity of a “witness at criminal
proceedings” who is under the age of 18. This is irrespective of the type of
offence alleged to have been committed. The provision applies even if the
child concerned is not a complainant and where the child merely witnessed
the crime concerned.
12
26 The provision does not expressly indicate that it covers child victims who are
not called as witnesses. Nevertheless, as we argue below, all child victims
are potential witnesses who may be called to testify. As a result, this
provision must be interpreted expansively to provide protection to child
victims.
27 We note that sections 153 and 154 of the CPA also contain other provisions
dealing with possible anonymity for those involved in criminal trials.
However, as we explain below, these provisions do not provide adequate
protection to the child victims, witnesses and offenders at issue in these
proceedings.
The evidence of the individuals affected
28 As indicated above, this case arises from the difficulties experienced by KL in
attempting to protect her anonymity before and after her 18th birthday.1
29 However, the relief sought in this application has far broader application. It
concerns the rights of all children who are victims, witnesses or perpetrators
of crime to be protected from being identified under section 154(3) of the
CPA.2
30 The applicants have put up evidence from children and young adults who
were victims, witnesses or perpetrators of crime during their childhood. They
all suffered the harm of being identified in the media or, like KL, are at great
1 Founding affidavit (“FA”), p 25, paras 26 and p 33, para 52.2 Ibid, p25, para 27.
13
risk of being identified. In what follows, we briefly summarise their
experiences.
The case of KL
31 KL was “discovered” in February 2015 after her biological sister was enrolled
at the same high school. The distinct similarity between KL and her sister
caused KL’s biological father to conduct his own investigations.
32 DNA tests were conducted which confirmed that KL was “Zephany Nurse"
the baby who had been stolen at birth from Groote Schuur Hospital. This
discovery led to the arrest of the person KL had known as her mother all her
life.3
33 Following KL’s “discovery”, there was intense media interest in her case.
Journalists set up camp outside KL’s house and school in an attempt to take
pictures of her and report on her story.
34 KL was taken to a place of safety, in large part because of this intense media
scrutiny.4
35 At the time of her discovery, KL was 17 years of age.5 Media reports
contained suggestions that the media was prohibited from publishing any
3 Ibid, p33, para 53-54.4 Ibid, p 34, para 54-57.5 Ibid, p 26, para 33.
14
information regarding KL’s identity but that the prohibition would fall away
when she turned 18 at the end of April 2015.6
36 As a result, KL was living in fear of being identified in the media as this would
destroy her chances of a normal life.7
37 The Centre for Child Law addressed correspondence to the various media
houses requesting an undertaking that they would not reveal KL’s identity.
None of the media houses provided the undertaking as requested. Lawyers
acting for YOU Magazine and Huisgenoot expressly stated that the statutory
protection would lapse on KL turning 18 and the media would be permitted to
reveal KL’s identity.8
38 Despite obtaining an interim court order in these proceedings to protect her
anonymity,9 KL has still faced constant threats of being identified:
38.1 In July 2015, KL’s legal representative discovered by chance that a
book on KL was due to be published, with picture of KL on its front
cover. A small black strip was placed across KL’s face, but she would
have been easily identifiable by anyone that had met her. The
publishers were eventually persuaded to change the cover only after
the threat of legal action.10
6 Ibid, p 27, paras 34.1-35.7 KL’s affidavit, Annexure AMS 1, pp 63-64, paras 20 – 24.8 FA, p 34 -37, para 57-63.9 SFA, p 259, Annexure AMS 24. 10 Reply, pp 805 – 807, para 34.5; Annexure AMS 40 – 41, pp 925 – 927.
15
38.2 In March 2016, the Daily Voice, owned by the second respondent,
published a series of articles including photographs of KL in which her
face was partially obscured by pixellation. KL’s legal representatives
brought a complaint to the Press Ombudsman, who held that the
articles breached the court order and the Press Code. While KL
succeeded, the ruling brought her no direct relief apart from an
apology.11
38.3 In June 2016, YOU Magazine (published by the first respondent)
carried a story in which it included pictures of KL’s biological sister,
despite the fact that it had been reported that KL and her sister look
very similar, a fact that was repeated in the YOU article.12
38.4 In August 2016, the New Age newspaper (published by the sixth
respondent) carried a story on its website reporting that KL was
pregnant. The article indicated that this had been confirmed by KL’s
aunt and referred to the aunt by name.13 A number of other
publications picked up and reported on the New Age story14 and at
least two also included the name of KL’s aunt in their articles.15
39 This shows that KL remains at great risk of being identified by the media.
39.1 KL has explained the intense fear that if she is identified then she will
not be able to make a normal life for herself.16 11 Reply, pp 812 – 813, para 43.2.; Annexure AMS 46, pp 934 – 937.12 Reply, p 812, para 43.1.13 Supplementary affidavit, pp 972-3, para 8; Annexure SA3, pp 982-984. 14 Annexure SA8, pp 993-415 Annexure SA9, p 995 and Annexure SA12, p 1001-2.16 KL’s affidavit, pp 62 – 64, paras 18 – 24.
16
39.2 The potential harms to KL have also been analysed in great detail in
the expert report of Dr Giada Del Fabbro and this assessment is
confirmed by Ms Lena Goosen, the social worker who has worked
most closely with KL.17
39.3 In this light, it is clear that KL is in urgent need of the relief sought in
Part B in order to give her permanent protection.
The case of MVB
40 KL has been relatively fortunate, in that her identity has not yet been fully
disclosed in the media. This is in contrast with MVB, another child victim of
crime who continues to be identified in the media without her consent,
despite a court order expressly prohibiting this.
41 MVB is a survivor of a horrific attack. Her family was murdered by an axe-
wielding assailant in their home, leaving with severe injuries.
42 The media respondents seek to use MVB’s as an example that identification
in the media is beneficial for the victims and their families at large.18 The
media respondents incorrectly assume that their invasion of MVB’s privacy
has assisted her healing process.19
42.1 MVB’s court-appointed curator, Advocate Louise Buikman SC,
provides a direct rebuttal to these claims.
17 Dr Del Fabbro’s report, pp 382 – 383; Affidavit by Ms Goosen, pp 945 – 949.18 Answering affidavit, p483 para 52.19 AA, pp 483,486, 502, paras 52, 53.3, 81.
17
42.2 In her supporting affidavit, Advocate Buikman SC explains that MVB
has endured great stress and potential danger due to the media’s
continued interference in her life.20
42.3 Advocate Buikman SC further endorses the relief sought in this
application as a means to protect MVB and to ensure that other
children do not endure the same trauma that she has experienced.21
43 Shortly after the commission of the crime, the media published details of
MVB’s school, her name, photographs, and details of institutions she was
receiving treatment. This was without her consent, as she was in a coma at
the time.22
44 On her release from hospital, the media continued to follow her and to
publish intimate details about her life. This included paparazzi style
photographs of MVBs first public outings after she left hospital.23
45 Advocate Buikman SC obtained a court order requiring the media to comply
with the Press Code and to obtain the curator’s consent before interviewing
or photographing MVB.
45.1 However, members of the media continued to violate the court order
and published invasive coverage about MVB’s personal life, resulting
in a complaint to the Press Ombudsman.24
20 Advocate Buikman SC’s Affidavit, p 881, para 34.21 Ibid, pp 882, paras 35.22 Ibid, p 870 para 7; para 9.1.23 Ibid, Annexure LB 2, pp 896 – 898.24 Ibid, pp 875 – 876, paras 19 – 22.
18
45.2 These media reports included salacious gossip about MVB’s alleged
relationship with a young man, with no possible public interest value.25
46 Given these experiences, Advocate Buikman SC concludes that:
46.1 It would have been perfectly possible for the media to report on this
story without identifying MVB;
46.2 The media reporting on MVB has not benefitted her as the media
respondents claim, but has made her process of healing and
reintegration into her community far more difficult; and
46.3 The ongoing media coverage has been very distressing for MVB and
has caused her embarrassment.26
47 In light of these experiences, MVB and other child victims in her position
require the protection of section 154(3).
The case of PN
48 PN and his co-accused were charged with the murder of Eugene
Terre’blanche. PN was aged 15 at the time of the alleged offence and
therefore his trial was conducted in camera, under the provisions of the
CJA.27
25 Ibid, pp 877 – 878, para 25 – 28, Annexure LB 10, pp 923 – 924. 26 Ibid, pp 879 – 882, paras 32 – 37.27 SFA, pp 206 – 207, paras 33, 35.
19
49 As a result of the intense interest in the matter, the media brought an
application to be allowed access to the trial.
49.1 The court granted an order which permitted limited media access to
the trial and further prohibited the media from publishing information
which could reveal PN’s identity.28
49.2 The media was able to access the trial via video stream from another
room in the court building which had closed circuit camera.
49.3 For the whole period of the trial, some two and half years, the media
did not reveal PN’s identity.29
50 Judgment was handed down on 22 May 2012 after PN had turned 18. While
PN was acquitted of murder, he was found guilty of house breaking with
intent to steal.30
50.1 Pursuant to the judgment, the media published PN’s name and had his
photographs in their various newspapers, seemingly on the basis that
the automatic protection under section 154(3) of the CPA had lapsed
as he was now over 18.
50.2 The protection that PN had received throughout the trial was undone
and his identity became well known across the country and in
particular in Ventersdorp where he had lived prior to the arrest.31
28 Media 24 v National Prosecuting Authority: In Re S v Mahlangu 2011 (2) SACR 321 (GNP).29 SFA, p 208, para 38. 30 Ibid, p 208, para 39.31 SFA, pp 208 – 209, paras 41 – 42.
20
51 PN became exposed to harm and danger in light of the racial hostility that
was heightened in the area following the murder of Terre‘blanche.32 The
media respondents deny that he was exposed to any danger,33 but that
denial rings hollow given the racially charged atmosphere outside the court
(where white and black crowds had to be forcibly separated by police)34 and
the fact that an effigy of his co-accused was hung from a tree on the day of
sentencing.35
52 PN has since left the Ventersdorp area and could not be traced. In all
likelihood, the fact that his identity became widely known compelled him to
leave.36
The case of DS
53 DS was charged and convicted with the murder of his family in 2012. He was
aged 15 at the time the murder was committed.
54 The media was allowed to access and report on the trial. While the media did
not identify him during the trial, they published articles that speculated on
who the murderer might be.37
32 Ibid, p 209, para 42 – 43.33 AA, pp 536 – 537, para 144.34 SFA, p 207, para 34.35 Ibid, p 209, para 42.36 Ibid, p 209, para 44. The media respondents deny this, but they are in no position to give this denial, as
they have no personal knowledge of these events. AA, p 536 – 537 , para 144. 37 SFA, p 210, para 47.
21
55 DS was convicted of murder and was sentenced to 20 years in prison on 13
August 2014, just two days before his 18th birthday. He is currently appealing
the conviction and sentence.38
56 After DS turned 18, various media houses published DS’s identity and
posted pictures of DS on their websites.39 Many of the pictures were taken
during the trial, while DS was under the age of 18. Books have also been
published on DS’s case, including a book with DS’s picture on the cover.40
57 DS explains the trauma he underwent when suddenly his identity was made
public after he turned 18 and was deemed a major. He also fears that he will
not be able to return to a normal life on his release, as his identity is now
widely known and the media is likely to follow him wherever he goes.41
The case of MO
58 MO was involved in a car accident in January 2011 when he was aged 17.
As a result of the accident a man died and two minor children were injured.
59 MO’s matter was heard in the child justice court. After he turned 18, the
public prosecutor obtained an order for the case to continue in camera and
that no information revealing his identity would be published.42
38 Ibid, p 210, para 48.39 DS’s affidavit, p 310, para 11 (English translation).40 Ibid, p 311, para 319.41 Ibid, pp 312-313, para 22-29.42 MO’s affidavit, p 452, para 7.
22
60 Despite this prohibition, newspapers proceeded to publish MO’s name in
their stories which resulted in him being labelled as a murderer and a
drunkard in his community. He also received several threatening phone calls
and text messages and general abusive messages from strangers.43
61 The continued abuse and humiliation resulted in MO deregistering from
University and continuing his studies through distance learning with UNISA.
He was stressed and detached and sometimes had suicidal thoughts as a
result of the publicity. MO’s psychiatrist diagnosed him with post-traumatic
stress disorder which was largely as a result of his identification in the
media.44
62 After having unlawfully published MO’s identity, Independent Newspapers
then made an application to rescind the magistrates’ order prohibiting
publication of information about MO. However, the matter was never
resolved.45
The cases of P and X
63 The experiences of KL, MVB, PN, DS and MO stand in contrast with the
examples of two young women, P and X. These women were both child
offenders and were both convicted of very serious offences. Despite
widespread media coverage of both cases, neither P nor X were named by
the media.
43 Ibid, pp 452 -453, paras 7-9.44 Ibid, pp 453- 454, paras 10-12.45 Ibid, pp 454-455, paras 17-19.
23
63.1 This appears to have been largely fortuitous — P and X turned 18
sometime after their court proceedings had concluded, when media
interest in their cases had subsided.
63.2 As a result, they were spared the ordeal of being identified in the
media when they reached adulthood.
63.3 Their experiences show that anonymity can allow victims, witnesses,
accused and offenders the opportunity to overcome trauma and to live
normal, productive lives.
63.4 However, their examples also indicate that this anonymity remains
precarious so long as the media believes that section 154(3) does not
protect child victims, witnesses, accused and offenders into adulthood.
64 P was convicted of murdering her grandmother, a crime she committed when
she was 12 years old. Despite her story having been widely publicised in the
media, P was never identified.46
64.1 P was subjected to media scrutiny daily as she attended court and
the media took pictures of her although they could not use the
pictures as they were not allowed to identify her.
64.2 P received a non-custodial sentence which was converted to a
suspended sentence on appeal and remained at home and attended
school.
46 SFA, p 216, para 62-63.
24
64.3 P matriculated in 2007 and studied cosmetology at an FET College.
She did various job and was married in 2011. P’s husband and his
family knew about the case and her conviction but accepted her as
she is. P is now a mother with two children and is in a happy and
stable family.47
64.4 P explains that though the media occasionally wants to speak to her,
the attention died down after the case and she has been able to live a
normal life centred on her children and family.
64.5 P expresses her concern that should her name be identified in the
media; she would not be able to cope with her identity and past being
made public as she tries not to dwell on the past but rather focus on
the present and raising her family. P further explains that if she were
to be identified, she would not be able to explain the situation to her
children and is concerned about the impact the details that she
murdered her grandmother would have would have on their lives if
they found out about her past and her being described as the “killer
girl”.48
64.6 Ms Van Niekerk, a social worker, who assisted P in the rehabilitative
process explains in her supporting affidavit that P was a vulnerable
and emotionally unstable child who with the right interventions has
grown to be a well-adjusted woman and exposure to the media would
be disruptive of all the progress she has made.49
47 P’s affidavit, pp 331-332, para 10-15.48 Ibid, p 333, para 20-24.49 Supporting affidavit by Joan Van Niekerk, p 344-345 para 20.2 -20.5.
25
65 X was convicted when she was 16 for being an accessory after the fact to
the murder of her parents. Her parents were murdered by her boyfriend at
the time. She became a victim and an accused.50
65.1 X was meant to testify at the trial, however the accused pleaded
guilty and X was spared the ordeal of testifying.51
65.2 X was moved to a children’s home and only people who needed to
know about her conviction were informed. She went to school and
completed her matric and is currently studying for a Bachelor of Arts
in psychology and English with UNISA.52
65.3 X is now married and has three children. She states in her affidavit
that her healing process during her teenage years was slow and
difficult. She explains how anonymity allowed her to transition into
adulthood and assisted in her process of healing.53
65.4 Ms Van Niekerk, who also had the opportunity to work with X, states
that while X’s childhood was compromised by neglect and addictions,
anonymity allowed her to settle in her new environment without fear
of the stigma attached to the crime she had committed. Ms Van
Niekerk notes that X has sufficiently rehabilitated and has a stable
family but that if her identity was to be disclosed in the media, it
would negatively affect her, her children, and the community.54
50 X’s affidavit, p 351, para 2-3.51 Ibid, p 351, para 3.52 Ibid, p 352, paras 9 – 12.53 Ibid, pp 353 – 354, paras 13 – 14, 20-22.54 Supporting affidavit by Joan Van Niekerk, p 345 paras 21.1 – 21.5.
26
66 It is important to bear in mind that if the applicants do not obtain the relief
sought in Part B of this application, then P and X will remain in danger of
being identified in the media. This would undermine all the work that has
gone into their rehabilitation and reintegration.
Expert evidence on the harms of identification
67 The experiences of KL, MVB, PN, DS, MO, P and X are not isolated
examples.
67.1 Research by Media Monitoring Africa (“MMA”), the fifth applicant,
suggests that in 2003 over 33 per cent of stories on crimes involving
children identified the children.1
67.2 In a 2013 study, MMA identified no less than 274 examples of stories
that violated the rights of children.2
68 These children’s experiences are also indicative of the serious harms and
risks that other child victims, witnesses, and offenders may suffer if they are
identified in the media.
69 To understand the gravity of the problem, it is important to consider the
serious impact on each child, rather than merely considering the numbers of
those affected.
1 Supporting affidavit by William Bird, p 394, para 11.2; Annexure WRB 2, pp 424 – 426. 2 Further supporting affidavit by William Bird, p 964, para 7.
27
70 Identification in the media can have a catastrophic impact on the lives of the
children affected, as is explained in the papers by no less than four leading
experts. These experts are:
70.1 Professor Ann Skelton, director of the Centre for Child Law, recently
appointed member of the UN Committee on the Rights of the Child,
and an expert on child justice. She has assisted many child victims,
witnesses and offenders in criminal law matters over her career of
more than 25 years.3
70.2 Dr Giada Del Fabbro, a psychologist with considerable clinical,
assessment and therapeutic experience in the field of child and
adolescent psychology.4
70.3 Ms Joan van Niekerk, former director of Childline and a social worker
with 27 years’ experience who has worked with thousands of child
victims and many child offenders.5
70.4 Ms Arina Smit, manager of NICRO’s clinical unit, who has worked with
over a thousand child offenders over the past 17 years.6
The harms caused by identification
71 The experts have identified four types of psychological harms that flow from
identification of children in the media and other public forums:
3 FA, SFA and Replying Affidavit.4 Report by Dr Del Fabbro, Annexure AMS 37, pp 370 – 388; Annexure AMS 50, pp 950 – 954.5 Supporting affidavit by Ms Van Niekerk, Annexure AMS 34, pp 335 – 348.6 Supporting affidavit by Ms Smit, Annexure AMS 35, pp 356 – 369.
28
71.1 Trauma and regression;
71.2 Stigma;
71.3 Shame; and
71.4 The fear of being identified.
72 As Dr Del Fabbro explains:
72.1 These vulnerabilities persist after 18, particularly where a child’s
psychological development has been disrupted by the combined
traumas of crime and participation in the criminal process.7
72.2 Moreover, child victims, witnesses, accused or offenders are in
particular need of ongoing protection for their anonymity after they
turn 18. This is because childhood traumas have particularly lasting
effects, leaving wounds that may be reopened if these children are
publicly identified in adulthood.8
73 In what follows, we briefly summarise the psychological evidence on these
harms.
Trauma and regression
74 Crime traumatises children in particularly severe, life-altering ways.
Children’s identities are still developing, their defence and coping
mechanisms are not yet fully formed, and they experience stigma and shame
7 Dr Del Fabbro’s report, p 379, para 25. 8 Ibid, pp 379 – 380, at paras 27 – 33.
29
acutely. As a result, crime leaves children with deep psychological scars that
can remain throughout their adult lives.9
75 It is not only victims and witnesses that are traumatised by crime. Children
who commit crimes are also traumatised by their actions and the
consequences. As Ms Smit explains:
“What is not generally understood is that the offence committed by a child offender is also a traumatic event for that child offender. Trauma identification and treatment is essential to provide the child with the necessary emotional support and to ensure the child receives the correct intervention to modify the child’s behaviour.”10
76 This is reflected in the experiences of X, who was both a victim of a crime
and an accessory after the fact. She had to overcome the trauma of the
murder of her parents and her own feelings of guilt around her involvement in
the crime.
77 Adults who have experienced childhood trauma on this scale remain at great
risk of “regression” if identified in the media. Dr Del Fabbro explains that
regression occurs when a person is confronted with triggers that take them
back to the feelings and emotions experienced at the time of the traumatic
event. In Dr Del Fabbro’s opinion, identification in the media is a particularly
powerful trigger.
77.1 When an adult is identified as having been a child victim, witness,
accused or offender, they are again taken back to the point of trauma.
9 SFA, pp 223, para 86; Dr Del Fabbro’s report, pp 373 – 374, paras 6 – 12.10 Affidavit by Ms Smit, p 360, para 12.
30
77.2 They may be confronted with photographs of themselves as children
and deeply intimate personal details which trigger a flood of traumatic
memories.
77.3 They also have to contend with the stigmatising effects of this
coverage, as others will now know their identity and what they did or
experienced in childhood.
77.4 Identification in the media also results in a multiplication of publicity, as
the story may be republished, posted on the internet in perpetuity, and
spread through schools, places of work, and communities.
77.5 As a result, the adult may be confronted with the story again and
again, wearing down their defences.11
78 As a result of this publicity, an adult is likely to regress to the state of trauma
they experienced while they were a child. Dr Del Fabbro states:
“This would erode all of the support structures and coping mechanisms they may have developed since the traumatic event. The person will re-experience all of the feelings of fear, isolation and mistrust that they experienced at the time of the trauma…. This regression can undo years of therapy and rehabilitation and increase hopelessness regarding future possibility of recovery”12
Shame
79 Identification in the media and other public forums can evoke intense feeling
of shame in a child. Dr Del Fabbro explains children often experience shame
more acutely than adults, causing children further trauma and suffering.13
11 Dr Del Fabbro’s report, p 380, paras 34 – 39. SFA, p 224 – 225, para 90. 12 Dr Del Fabbro’s report, p 380, para 37.13 SFA, pp 226 – 227, paras 94 – 96; Dr Del Fabbro’s report, pp 374 – 375, paras 13 – 14.
31
80 Although feeling shame may be part of what must happen for an offender to
be held accountable, our courts have recognised that shame must be
“reintegrative” rather than “stigmatizing”.14
80.1 This is what is intended by a restorative justice approach. Restorative
justice is one of the objectives of the Child Justice Act and is
specifically mentioned in the section 2(b)(iii) of that Act
80.2 It is therefore particularly important when dealing with child offenders
that any shame that they feel should be channelled usefully into their
understanding of the effect of their behaviour on others.
80.3 For this to happen, shame can be expressed in processes that aim to
achieve the reintegration of the child back into society.
80.4 However, all of this taking responsibility, feeling shame, and making
amends is done in sessions facilitated by a suitably qualified person. It
does not happen in public.
80.5 The public identification approach contended for by the media is quite
different. It involves a stigmatising shame and will often impede the
achievement of restorative justice.
81 When it comes to child victims or witnesses, it might be thought that there is
no reason for them to be ashamed.
14 See: S v Saayman 2008 (1) SACR 393 (E).
32
81.1 However, children often attribute bad things happening to them as
being partly their own fault, and feel ashamed of their own role or their
own inability to stop those things happening.
81.2 As the offences to which they are witnesses or are victims are often
committed by family members who they are attached to, they also feel
the deflected shame of the acts of the offender.
81.3 For example, KL knows that she has done nothing wrong, but she also
cannot easily detach herself from the acts of the kidnapper, her love
for the person who has raised her, and her discomfort that her
biological parents suffered as a result of her disappearance while she
herself was living a normal life.15
82 It is for this reason that victims and witnesses also require anonymity in order
to avoid association with what they may view as shameful events.
Stigma
83 Shame and stigma are not the same thing. Stigma attaches to people when
their shame is publicly known and, to some extent, defines them in the eyes
of others. They are forever branded with some deeply discrediting attribute,
both in their own minds and in the minds of others.16
84 All of the individuals who have provided affidavits express anxiety about the
stigmatisation that results from public identification:
15 Dr Del Fabbro’s report, pp 382 – 383, para 44 – 53; confirmed in the affidavit of Leana Goosen, pp 945 – 949.
16 SFA, pp 228 – 229, paras 97 – 99.
33
84.1 In her affidavit X explains that she was able to heal because she could
start afresh and “live a new life in which people don’t judge me”.17
84.2 P makes her own powerful statement about stigma: ‘[B]eing known
forever by everyone for something bad that you did when you were a
child can, in a way, be the end of your life ’.18 She also says that she
does not want her children to see her labelled as being the “killer
girl”.19
84.3 Similarly DS, does not want to forever be known as “ the Griekwastad
murderer”.20
84.4 KL explains that “[I]f the media is allowed to reveal my identity … I will
always be known as the girl who was kidnapped at birth. I don’t want
this fact to forever define me in the eyes of others”.21
85 The stigma that comes from being identified in the media is destructive of a
child’s healing and reintegration into their communities. We return to this
theme below.
17 KL’s affidavit, p 63, para 19.18 P’s affidavit, p 334, para 29.19 Ibid, p 333, para 24.20 DS’s translated affidavit, p 310, para 921 KL’s affidavit, p 63, para 20.
34
The fear of identification
86 A child who fears being identified in the media may experience added
trauma. The child will also have to live with this insecurity and fear
throughout their adult lives, never knowing when they might be publicly
identified.22
87 Dr Del Fabbro observes that child victims, witnesses, accused, and offenders
may be under a state of constant anxiety that their past may resurface at the
whim of the media. She notes that the tendency of the media to “heighten
dramatic effect” and “exaggerate disaster, chaos and unpredictability of
modern life” plays into this insecurity that children feel.23
88 This fear can have a profound effect on children and the choices they make.
They may feel intense despair, powerlessness and hopelessness at the
prospect of being identified. Dr Del Fabbro indicates that this may result in
an increased risk of depression and even suicide.24
89 This fear of identification also has lasting effects into adulthood. Adults must
then live with the constant anxiety that their lives may be upended if the
media chooses to identify them. X describes this fear in moving terms:
“Although my life is whole and I am healed, there remains this small speck on the horizon – the ‘secret’ I must always live with. If the media was allowed to blow that speck into a huge thing, then it will take me way, way back.
If my identity was revealed now, I would be devastated. It would affect my husband’s career, in the future it would affect my
22 SFA, pp 229 – 231, paras 100 – 107. 23 Dr Del Fabbro’s report, p 373, para 10. 24 Ibid, p 381, paras 40 – 43.
35
children. I worry about what type of things the media might print – they might tell it wrong. It would have a hugely negative impact on my life and stability.”25
This insecurity puts an added burden on adults like X who are trying to
overcome the trauma of their childhood.
90 Trauma, shame, stigma and the fear of identification are common to child
victims, witnesses, accused and offenders alike. In Parts 3 and 4, we
explain how identification in the media and other public forums also has
specific impacts on victims and witnesses, on the one hand, and accused
and offenders, on the other.
The media respondents’ response to the expert evidence
91 The media respondents concede the vast majority of this expert evidence on
the harms of identification:
91.1 They do not dispute the evidence on the different forms of
psychological harm arising from identification;26
91.2 They explicitly concede the evidence on the harms of identification of
offenders, specifically that disclosure may “hinder the rehabilitation
and reintegration of offenders, and may engender feelings of shame
and stigma.”27
25 X’s affidavit, p 354, paras 20 – 21.26 AA, pp 541, para 149.1.27 AA, p 513, para 102.
36
91.3 They also admit that victims of sexual offences and child abuse would
suffer severe harms if identified by the media.28
92 However, the applicants go on to deny that child victims of crimes, apart from
sexual violence and child abuse, generally suffer harm as a result of having
their identities revealed in the media or other public forums. They contend
that “it is not generally true that it is harmful to be known as a victim of a
crime”.29
93 The respondents put up no expert evidence of their own to support these
sweeping claims and denials. Instead, these claims are made by a deponent
with no expertise in this area – she is a legal editor of the Sunday Times30 –
who merely relies on a collection of press clippings.
94 In addition, the media respondents assert that Dr Del Fabbro’s expert
evidence only applies to victims of sexual violence and child abuse, despite
Dr Del Fabbro’s repeated emphasis that all victims may experience these
harms.31
95 In Teddy Bear Clinic for Abused Children v Minister of Justice and
Constitutional Development, the Constitutional Court dealt with a situation
where one side presents expert evidence and the other does not properly
counter it with expert evidence of its own. It explained as follows:
28 AA, p 482, para 49. 29 AA, p 481, para 45.30 AA, p 462, para 2. The deponent is a legal editor of the Sunday Times.31 Supporting affidavit of Dr Del Fabbro, pp 951 – 953, paras 6 – 9; Reply, p 815, para 48.2.
37
“I pause to emphasise two points. First, where one party has put forward cogent expert documentary evidence indicating that the impugned provisions do not pass constitutional muster, the party seeking to uphold the validity of those provisions must advance evidence of a similar nature if he or she is to have any hope of success. …. Second, in matters concerning children, it is particularly important that courts be furnished with information of the best quality that can reasonably be obtained.”32
96 Sweeping statements by an unqualified deponent and press clippings are not
“evidence of a similar nature” in response to the applicants’ expert evidence.
97 Therefore, the harms identified by the applicants’ experts must be accepted
as well-founded.
32 Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 (2) SA 168 (CC) at para 96.
38
PART 2: THE RIGHTS AT STAKE
98 We now turn to address the constitutional rights at stake in this case. Two
sets of rights are in issue:
98.1 On the one side of the scales are the constitutional rights of children,
including the section 28(2) right that a child’s best interests are of
paramount importance, the section 9 right to equality, the section 10
right to dignity, the section 14 right to privacy, and the section 35(3)
right to a fair trial.
98.2 On the other side of the scales are the section 16 right to freedom of
expression, including media freedom, and the overarching principle of
open justice.
99 These rights and interests must be seen in the context of the state’s
section 7(2) constitutional duty to respect, protect, promote and fulfil all rights
under the Bill of Rights. Section 154(3) of the CPA is an attempt by the state
to fulfil its constitutional duties to protect the rights and best interests of
children. It must be understood in light of this protective purpose.
The best interests of the child
100 The starting point in this matter is the section 28(2) guarantee, which
provides:
“A child’s best interests are of paramount importance in every matter concerning the child.”
39
101 Section 28(2) is both a principle and a self-standing right:
“[T]he ‘best-interests’ or ‘paramountcy’ principle creates a right that is independent and extends beyond the recognition of other children’s rights in the Constitution.”1
102 Paramountcy requires that children’s interests are to be afforded the “highest
value”,2 meaning that their interests are “more important than anything else”
albeit that “everything else is [not] unimportant.”3
103 This recognises that children’s interests are in need of special protection as a
result of their vulnerability and their capacity for development.
103.1 In Centre for Child Law v Minister of Justice and Constitutional
Development and Others, the Constitutional Court explained this in
the following terms:
“The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults.”4
103.2 In Teddy Bear Clinic, the Constitutional Court added that:
“Children are precious members of our society and any law that affects them must have due regard to their vulnerability and their need for guidance. We have a duty to ensure that they receive the support and assistance that is necessary for their positive growth and development. Indeed, this Court has recognised that
1 J v NDPP 2014 (2) SACR 1 (CC) at para 35 (“J v NDPP”). See also Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) (Fitzpatrick) at para 17;
2 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) at para 42.3 Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632
(CC) at para 29 (“Centre for Child Law”).4 Ibid at paras 26-9 (emphasis added)
40
children merit special protection through legislation that guards and enforces their rights and liberties.” 5
104 While the law can never guarantee that children are insulated from all
traumas, section 28(2) requires that the law must do as much as possible to
create conditions that protect children, allowing them to lead flourishing lives.
As the Constitutional Court held in S v M:6
"No constitutional injunction can in and of itself isolate children from the shocks and perils of harsh … environments. What the law can do is create conditions to protect children from abuse and maximise opportunities for them to lead productive and happy lives."7
105 Section 28(2) also requires that any decision which may have detrimental
consequences for a child’s interests should allow for individualised
assessment. The blanket deprivation of a child’s rights, without individualised
assessment, is a violation of this right:
“Child law is an area that abhors maximalist legal propositions that preclude or diminish the possibilities of looking at and evaluating the specific circumstances of the case. . . . This means that each child must be looked at as an individual, not as an abstraction.”8
The principle of ongoing protection
106 Section 28(2) embodies a further principle that is of central significance for
this case. We will refer to this as the “principle of ongoing protection”.
106.1 This principle provides that the protection afforded by the section 28(2)
right does not necessarily terminate when a child turns 18.
5 Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development 2014 (2) SA 168 (CC) at para 1 (emphasis added)
6 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC).7 Ibid at para 20.8 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) at para 55.
41
106.2 The life-long consequences of a child’s actions or experiences are
also the proper concern of section 28(2), even if those consequences
are only felt in adulthood.
107 The Constitutional Court has consistently affirmed this principle of ongoing
protection in the context of sentencing child offenders.
108 In J v NDPP,9 the Constitutional Court struck down a provision of the
Criminal Law (Sexual Offences) Act which required the compulsory inclusion
of children who committed sexual offences on the Sexual Offences Register,
without affording courts a discretion.
109 The Court held that while the consequences of registration on the Sexual
Offences Register would largely be experienced in adulthood, those
consequences were the proper concern of section 28(2):
"[T]his Court has held that consequences for the criminal conduct of a child that extend into adulthood (such as minimum sentences) do implicate children’s rights. So, in the case of J, the fact that he was a child when the offence was committed means that his rights as a child are implicated, albeit that the consequences of registration will, for the most part, only be felt as an adult."10 (Emphasis added)
110 J affirmed and made explicit the principle of ongoing protection that was
implicit in the Court’s 2009 judgment in Centre for Child Law.
9 J v National Director of Public Prosecutions 2014 (2) SACR 1 (CC).10 Ibid at para 43.
42
111 In Centre for Child Law11 the Constitutional Court held that the application
of minimum sentencing laws to offenders who were 16 and 17 years old at
the time of the offence was unconstitutional, even if those offenders were
over the age of 18 at the time of sentencing. The Court did so recognising
that child offenders are physically and psychologically more vulnerable than
adults, that they have diminished moral responsibility for their conduct, and
greater capacity for reform:
“These are the premises on which the Constitution requires the courts and Parliament to differentiate child offenders from adults. We distinguish them because we recognise that children’s crimes may stem from immature judgment, from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence. We recognise that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence we afford children some leeway of hope and possibility.”12
112 The effect of J v NDPP and Centre for Child Law is that, for the purposes of
section 28(2) of the Constitution, what matters is not when the consequences
are felt, but whether those consequences flow from actions or events
occurring during childhood.
113 This principle of ongoing protection is of wider application than merely
sentencing of child offenders. This is because the reasons for this principle
have equal application to all children, including victims and witnesses of
crime:
113.1 As the Constitutional Court has recognised, the consequences of
childhood experiences and conduct that are felt in adulthood tend to
11 Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC). See also Mpofu v Minister for Justice and Constitutional Development and Others 2013 (2) SACR 407 (CC).
12 Ibid at para 28.
43
be more severe, because of the greater physical and psychological
vulnerability of the child.13
113.2 Moreover, the Court has acknowledged that a child has lesser moral
responsibility for what they do or what happens to them in childhood.
They are also more “malleable”, as they have a greater capacity for
development and healing. For this reason, it is impermissible to unduly
punish an offender for actions in their childhood. But there must then
equally be a need to protect child victims and witnesses from the
consequences of crimes committed against them or in their presence,
for which they are blameless. These victims and witnesses must be
given the same prospect of “hope and possibility” that is afforded to
child offenders.14
114 When it is acknowledged that section 28(2) continues to protect child victims,
witnesses, accused and offenders into adulthood, there is no proper basis to
deny these children protection under section 154(3) of the CPA when they
turn 18. We will return to discuss this principle of ongoing protection in Part
4.
Privacy and dignity
115 The section 14 right to privacy and the section 10 right to human dignity are
also implicated when a child is stripped of their anonymity.
13 Ibid at paras 26 – 27.14 Ibid at para 27.
44
116 The Constitutional Court has recognised a continuum of privacy interests,
with intimate personal information at the core of this right.
“A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place.”1
117 Where a child has been a victim, witness or perpetrator of a crime, that
child’s identity will be a deeply private fact, the disclosure of which would
cause mental distress and injury to any reasonable person in their position.2
118 As the expert evidence and the experiences of the children and young
persons above shows, child victims, witnesses and offenders have a strong
privacy interest in retaining their anonymity during their childhood and into
their adulthood.
119 This requires the state to protect children from intrusions into their privacy
from state officials and private persons alike:
“An implicit part of this aspect of privacy is the right to choose what personal information of ours is released into the public space. The more intimate that information, the more important it is in fostering privacy, dignity and autonomy that an individual makes the primary decision whether to release the information. That decision should not be made by others. This aspect of the right to privacy must be respected by all of us, not only the state.”3 (Emphasis added)
1 Bernstein and Others v Bester NO and Others 1996 (2) SA 751 (CC) at para 77.2 National Media Ltd and Another v Jooste 1996 (3) SA 262 (A) at 270I-J. Adopted in NM v Smith 2007 (5)
SA 250 (CC) at paras 34 (Madala J) and 137 (O’Regan dissent), albeit without deciding whether it remains appropriate to the constitutional context.
3 NM v Smith ibid at para 132 (emphasis added).
45
120 A child’s right to privacy is closely intertwined with their right to the protection
of human dignity. As the Constitutional Court has explained in a case
concerning children, “An individual’s human dignity comprises not only how
he or she values himself or herself, but also includes how others value him
or her.4
121 The Court has consistently held that public shaming, stigma and humiliation
of children are antithetical to the right to human dignity. In J v NDPP,5 the
Court went further in holding that the mandatory listing of a child on the
sexual offences register would have lifelong stigmatising effects that were in
violation of their rights to dignity and to have their best interests protected:
“Child offenders who have served their sentences will remain tarred with the sanction of exclusion from areas of life and livelihood that may be formative of their personal dignity, family life, and abilities to pursue a living.”6
122 Similarly, in Toronto Star Newspaper Ltd v Ontario,7 the Ontario Supreme
Court of Justice succinctly explained the importance of anonymity protections
for children as a means of protecting their dignity and privacy:
“The concern to avoid labeling and stigmatization is essential to an understanding of why the protection of privacy is such an important value in the Act. However it is not the only explanation. The value of the privacy of young persons under the Act has deeper roots than exclusively pragmatic considerations would suggest. … Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment, the court stated that privacy is worthy of constitutional protection because it is “grounded in man’s physical and moral autonomy,” is “essential for the well-being of the individual,” and is “at the heart of liberty in a modern state”
4 Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development 2014 (2) SA 168 (CC) at para 56.
5 J v National Director of Public Prosecutions 2014 (2) SACR 1 (CC).6 Ibid at para 44.7 Toronto Star Newspaper Ltd v Ontario 2012 ONCJ 27 (CanLII).
46
(para. 17). These considerations apply equally if not more strongly in the case of young persons. Furthermore, the constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under section 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter.”8
This analysis has great resonance with the South African jurisprudence on
privacy and dignity.
Equality
123 As we explain in Part 3, the potential exclusion of child victims also
implicates the section 9 right to equality. Of particular importance is the
section 9(1) guarantee that “[e]veryone is equal before the law and has the
right to equal protection and benefit of the law.”
123.1 This requires that differentiation between persons in law or its
application must be rationally connected to a legitimate government
purpose.1
123.2 The purpose of this protection is to ensure that “similarly situated
persons” should not “suffer any greater disability in the substance and
application of the law than others.”2
124 The Constitutional Court’s recent judgment in Sarrahwitz v Maritz NO and
Another3 confirms that where a law seeks to protect a vulnerable class of
8 Toronto Star Newspaper ibid at paras 40 – 41, 44 (emphasis added). Cited with approval by the Supreme Court of Canada in AB v Bragg [2012] 2 SCR 567 at para 18.
1 Sarrahwitz v Maritz NO and Another 2015 (4) SA 491 (CC) at para 54.2 Madala J in Van der Walt v Metcash 2002 (4) SA 317 (CC) at para 68 (writing in dissent, but the principle
cannot be disputed).3 Sarrahwitz v Maritz NO and Another 2015 (4) SA 491 (CC) at para 49.
47
persons, it is impermissible and in violation of section 9(1) to exclude others
who are equally vulnerable, unless this is rationally connected to a legitimate
purpose.
Fair trial rights
125 The question of whether anonymity protections for child offenders are lost
when they turn 18 has a direct impact on their section 35(3) fair trial rights.
126 In S v Zuma, and the long line of cases that have followed, the Constitutional
Court has affirmed that the section 35(3) rights to a fair trial encompass both
procedural and substantive fairness.1 As we explain in Part 4, automatically
stripping a child offender of anonymity on turning 18 threatens to deprive a
child of these procedural and substantive fair trial rights.
Freedom of expression and open justice
127 Anonymity protections for children in the criminal justice system do have an
impact on freedom of expression and open justice. However, this impact is a
very limited one. Moreover, section 154(3) of the CPA allows courts to
achieve a balance between children’s rights, on the one hand, and the rights
to freedom of expression and open justice on the other.
128 The relationship between anonymity protections, media freedom, and open
justice have already been analysed in detail by the South African
1 S v Zuma and Others 1995 (2) SA 642 (CC) at para 16.
48
Constitutional Court and by foreign courts. This analysis is highly significant
for this case.
Anonymity protections in South African law
129 The Constitutional Court has consistently recognised that anonymity
protections are not a significant incursion into freedom of expression or open
justice.
130 In NM v Smith, the Constitutional Court addressed a breach of privacy claim
brought following the naming of three HIV-positive women in a book. The
Court held that the respondents “could have used pseudonyms instead of
the real names of the applicants. The use of pseudonyms would not have
rendered the book less authentic”.1
131 Moreover, the Constitutional Court has itself used anonymity protections as
the means to hold the balance between freedom of expression, open justice,
and the rights of vulnerable groups.
131.1 In Johncom Media Investments Limited v M,2 the Constitutional
Court imposed a ban on the publication of information that reveals or
may reveal the identity of children and parties involved in divorce
proceedings, holding that this would protect children’s rights while
preserving media freedom.
1 NM v Smith 2007 (5) SA 250 (CC) at paras 45-46 (emphasis added)2 Johncom Media Investments Limited v M 2009 (4) SA 7 (CC).
49
131.2 Johncom concerned a challenge to section 12 of the Divorce Act,
which prohibited the publication of any information arising from divorce
proceedings, but allowed for publication of the names of parties to the
proceedings, including affected children.
131.3 The Constitutional Court held that this blanket prohibition on any
information arising from these proceedings was an unjustified
limitation of the right to media freedom, a component of freedom of
expression. In particular, it held that anonymity protections were a
less restrictive means available to protect the rights of children and the
privacy of divorcees:
“Another way to protect children and parties would, in my view, be to prohibit publication of the identity of the parties and of the children. If that were to be done, the publication of the evidence would not harm the privacy and dignity interests of the parties or the children, provided that the publication of any evidence that would tend to reveal the identity of any of the parties or any of the children is also prohibited.”3
131.4 The Court therefore struck down section 12, but substituted it with an
order in the following terms, closely resembling section 154(3) of the
CPA:
“Subject to authorisation granted by a court in exceptional circumstances, the publication of the identity of, and any information that may reveal the identity of, any party or child in any divorce proceeding before any court is prohibited.”4
131.5 The Court held that this anonymity protection struck the best possible
balance between freedom of expression, on the one hand, and the
rights to privacy and best interests of the child on the other.
3 Ibid at para 30.4 Ibid at para 45.
50
“[T]his court could in terms of s 172(1) prohibit all publication of the identity of and any information that may reveal the identity of any party or child in any divorce case before any court. This is the position adopted in the Child Care Act. It is also important to emphasise that this court has adopted the approach of not disclosing the identities of children and vulnerable parties in all appropriate cases. In my view, this is an appropriate order. Such an order will not place an undue burden on the courts nor will it impose a particular burden on parties seeking publication or those parties seeking remedies on the basis that they may be prejudiced by publication.”5
131.6 Furthermore, the Court stressed that by allowing courts to have the
final say on whether to lift these anonymity protections, this was in
keeping with the court’s role as upper guardian of the child.6
132 As the Constitutional Court alluded to in Johncom, the use of anonymization
has become a standard practice in Constitutional Court judgments where
children are involved.7 This allows the courts to protect the rights of children
while still allowing the media and other parties to report fully on the facts and
circumstances of the case, insofar as they do not identify the child.
133 Furthermore, anonymization is also a requirement of Children’s Court
proceedings. Section 74 of the Children's Act 38 of 2005 establishes
automatic and indefinite anonymity protections which may only be lifted with
the permission of the court:
“No person may, without the permission of a court, in any manner publish any information relating to the proceedings of a children’s court
5 Ibid at para 42.6 Ibid at para 43.7 See, for example, J v National Director of Public Prosecutions and Another 2014 (2) SACR 1 (CC) at fn 3; AD and Another v DW and Others (Centre for Child Law as Amicus Curiae; Department of Social Development as Intervening Party) 2008 (3) SA 183 (CC); S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC).
51
which reveals or may reveal the name or identity of a child who is a party or a witness in the proceedings.”
134 These examples demonstrate that anonymity protections are already a
common feature of our law and are the preferred means to balance the
protection of vulnerable individuals with media freedom and open justice.
Anonymity protections in foreign law
135 In other jurisdictions, courts, and legislators have also acknowledged that
anonymity protections for children generally have no material impact on
media freedom and open justice.8
136 The Supreme Court of Canada’s views on anonymity protections are
particularly instructive. The Canadian jurisprudence on freedom of
expression and open justice is closely aligned with the South African
approach, and has often been used as a source of guidance by South
African courts.9 Furthermore, the Supreme Court of Canada has provided
some of the most extensive analysis of the need for anonymity protections
for children of any common law jurisdiction.
137 In Canadian Newspapers Co v Canada (Attorney General)10 the Canadian
Supreme Court upheld a ban on the publication of the identities of victims of
sexual offences, holding that anonymity protections impose minimal
restraints on media freedom and open justice:8 See the examples provided at paras 188 – 10 and paras Error: Reference source not found – Error:
Reference source not found below.9 See, for example, Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (6)
SA 443 (CC) at para 45; City of Cape Town v South African National Roads Authority Limited and Others 2015 (3) SA 386 (SCA) at paras 12, 14, 25.
10 Canadian Newspapers Co v Canada (Attorney General) [1988] 2 SCR 122.
52
"While freedom of the press is nonetheless an important value in our democratic society which should not be hampered lightly, it must be recognized that the limits imposed by [prohibiting identity disclosure] on the media’s rights are minimal . . . . Nothing prevents the media from being present at the hearing and reporting the facts of the case and the conduct of the trial. Only information likely to reveal the complainant’s identity is concealed from the public.”11 (Emphasis added)
138 In FN (RE)12 the Canadian Supreme Court acknowledged that anonymity
protections for children are among the permissible exceptions to the open
justice principle:
“It is an important constitutional rule that the courts be open to the public and that their proceedings be accessible to all those who may have an interest. To this principle there are a number of important exceptions where the public interest in confidentiality outweighs the public interest in openness."13
“The press is entitled to be present … and can publish everything except the identity of a young person involved. Admittedly, there may be other information which the press cannot publish because it may tend to reveal the identity of a young person, but the essence of the provision is that the press is entitled to publish all details except one. … [T]he identification of the young person a “sliver of information”. 14
139 In AB v Bragg,15 the Canadian Supreme Court applied these principles to a
civil case involving a child who was the victim of online bullying. The Court
again emphasised that the identity of the child is generally a mere “sliver of
information” that meant that anonymity protections are a “minimal” incursion
on freedom of expression and open justice.16
11 Ibid at 133.12 [2000] 1 SCR 880.13 Ibid at para 10.14 Ibid at para 12.15 [2012] 2 SCR 567.16 Ibid at para 28.
53
140 By contrast, the respondents rely on certain dicta in the UK Supreme Court’s
2010 decision in In re Guardian News Media Ltd.17 There the UK Supreme
Court suggested that using names in media reports often has value.18 There
are series of difficulties for their reliance on these remarks.
140.1 They are inconsistent with the approach of our Constitutional Court in
cases such as NM v Smith and Johncom, both mentioned above.
140.2 The judgment makes questionable logical leaps, suggesting that
anonymised media reports result in lower readership, falling revenues,
and diminished public debate. In the context of reporting on children
involved in criminal proceedings, there is simply no evidence to
support such sweeping claims. We address this in detail below.19
140.3 Most notably, these remarks were made in the context of anonymity
for adults suspected of financing terrorism. That is an entirely different
issue to anonymity for vulnerable children. The approach of the UK
courts makes this quite clear. In the subsequent case of JXMX v
Dartford and Gravesham NHS Trust,20 which addressed the need for
anonymity orders where a court is required to approve a settlement
agreement involving children, the Court of Appeals distinguished the
Supreme Court’s decision in In re Guardian. The Court of Appeal
recognised that open justice and media freedom generally does not
require revealing the identity of a child:
17 In re Guardian News Media Ltd [2010] UKSC 1. 18 See the quotations in AA, pp 504 – 505, para 84.19 See paragraphs - 226 below. 20 JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96.
54
“The public undoubtedly has an interest in knowing how that function [of approving settlement agreements] is performed and the principle of open justice has an important part to play in ensuring that it is performed properly, but its nature is such that the public interest may usually be served without the need for disclosure of the claimant's identity.”21
In reaching that conclusion, the Court of Appeals noted the long line of
decisions recognising anonymity protections for children as an
exception to the general rule of open justice.22
141 The South African and foreign approaches to anonymity protections indicate
that anonymity protections are not a significant incursion into media freedom
and open justice.
142 Instead, anonymity protections for children are used as a mechanism to
strike an appropriate balance between the rights of vulnerable children, on
the one hand, and media freedom and open justice, on the other. In the rare
cases where media freedom and open justice do require identification of
children, then courts may lift these anonymity protections.
143 Section 154(3) of the CPA is designed to achieve this balance. The relief
sought in this application does not upset that careful weighing of interests.
Far from it. This relief merely seeks to ensure that the same balance is
struck in the case of child victims under the age of 18 and child victims,
witnesses and offenders after they turn 18.
21 Ibid at para 29.22 Ibid at paras 7 – 16.
55
PART 3: PROTECTION FOR CHILD VICTIMS OF CRIME
144 Having outlined the broad principles applicable to this case, we now turn to
address why section 154(3) ought to apply to child victims of crime. We do
so by addressing the following points in turn:
144.1 The need to protect child victims’ anonymity;
144.2 Why section 154(3), properly interpreted, protects child victims from
these harms of identification; and
144.3 In the alternative, why section 154(3) is unconstitutional to the extent
that it does not currently protect child victims’ anonymity.
The need to protect child victims’ anonymity
145 Child victims who are not called to testify at trial or have not yet been called
to testify also require protection under section 154(3). This is the class of so-
called “non-testifying” child victims.
146 As in the case of child offenders and witnesses, the harms of identification
are so severe that the law ought to err on the side of caution by imposing
anonymity protections for all child victims by default, irrespective of whether
they testify at trial. In appropriate cases, these protections may be lifted by
order of court, but exceptions should not determine the rule.
56
The harms of identifying child victims
147 As set out above, the identification of victims of crime in the media and other
public forums can have severe consequences for these children.1
147.1 Identification in the media compounds trauma and brings about the
risk of regression;
147.2 It causes shame;
147.3 It stigmatises victims; and
147.4 The fear of identification can cause anxiety and additional
psychological wounds.
148 These risks of psychological harm apply to all children identified in the
media, whether they are victims, witnesses, or offenders. However, these
harms have specific consequences for child victims.
Victims’ reporting of crimes and participation
149 Dr Del Fabbro explains that child victims must be able to trust that their
privacy will be protected as much as possible by those to whom they have
turned for help. That literature explains that if they do not feel protected this
may result in heightened distress, and more broadly, it may result in a
decrease in the number of victims who come forward to get help.2
1 See paragraphs 71 - 90 above.2 SFA, p 231, para 109; Report by Dr Del Fabbro, p 375, para 13. Citing Jones et al “Protecting victims’
identities in press coverage of child victimisation” (2010) 11(3) Journalism 347 at 350.
57
150 In her affidavit, Ms Van Niekerk also highlights the need for anonymity to
encourage reporting of crime:
“I am certain that a significant number of the child victims and witnesses that I worked with would never have come forward to report these crimes and would certainly not have proceeded to lay charges and testify, if they had anticipated that there was a real risk that the exposure of their identity would occur either during their childhood or after they had become adults.”3
151 The Supreme Court of Canada has also emphasised this need for anonymity
protections. In AB v Bragg,4 the Supreme Court reviewed the literature on
anonymity protections for child victims and concluded
“Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities.””5
152 In Bragg, the Supreme Court noted that this need for protection is not
isolated to child victims of sexual violence. Children who suffer other forms
of harm are equally deserving of protection:
“In the context of sexual assault, this Court has already recognized that protecting a victim’s privacy encourages reporting: … It does not take much of an analytical leap to conclude that the likelihood of a child protecting himself or herself from bullying will be greatly enhanced if the protection can be sought anonymously. … [P]rotecting children’s anonymity could help ensure that they will seek therapeutic assistance and other remedies, including legal remedies where appropriate.”6
3 Supporting affidavit by Ms Van Niekerk, p 344-345, para 12.4 [2012] 2 SCR 567.5 Ibid at para 26.6 Ibid at para 25.
58
Long-term healing of victims
153 Identification in the media and the threat of identification also undermine
child victims’ long-term healing processes.
154 First , identification in the media threatens to re-traumatise a child, undoing
efforts to overcome trauma. As Dr Del Fabbro emphasises, identification
threatens to bring back all the feelings and emotions they felt at the time of
the crime:
“This would erode all of the support structures and coping mechanisms they may have developed since the traumatic event. The person will re-experience all of the feelings of fear, isolation and mistrust that they experienced at the time of the trauma…. This regression can undo years of therapy and rehabilitation and increase hopelessness regarding future possibility of recovery”7
155 Second , identification in the media (and the threat of identification) can also
undermine victims’ reintegration into their communities and their ability to
obtain support.
155.1 As MVB’s experience shows, the media has followed her every step.
This included paparazzi-style photographs of one of her first public
outings, as a photographer followed her to a school rugby game and a
shopping mall.8
155.2 Such coverage impedes a child victims’ ability to return to their
communities without fear of intrusive media coverage. As MVB’s
7 Ibid, p 380, para 37.8 Affidavit of Louse Buikman SC, p 873, para 14; Annexure LB 2, pp 896 -
59
curator ad litem points out, “anonymity will allow her the best chance
at creating a normal life”.9
156 Third , identification in the media can also prevent a child victim from trusting
those around her and from obtaining adequate family support. Dr Del Fabbro
explains this as follows:
“Parents and family members are often approached after their children are involved in a crime by the media and asked for interviews, access to the child, permission to photograph the family home, etc. … Often parents and family members may feel pressured to talk to the media. Sometimes parents and family members themselves may seek press coverage as a means to gain financial remuneration and contributions from the general public. In these instances, little regard is had for the psychological consequences of such publicity on the child.”10
156.1 This analysis captures KL’s difficulties in forming a relationship with
her biological family in the face of threats of being identified in the
media.
156.2 As is detailed in the replying affidavit, in March 2016, the Daily Voice
published pictures of KL with her biological family members at private
reunions held after she was “rediscovered”.11
156.3 These were highly emotional events for her. They were intensely
personal and private events, as were the pictures concerned. KL
trusted that these photographs would remain within the family and
would not be shared with the media and the public.
9 Affidavit of Louise Buikman SC, p 882, para 37.10 Report by Dr Del Fabbro, p 377, para 23.11 Reply, p 812, para 43.2; Annexure AMS 46, pp 934 – 937.
60
156.4 KL also suspects that the media has been offering payment to her
family members in exchange for information about her.12
156.5 All of this exposure has complicated KL’s relationship with her
biological family and has significantly hampered her process of
healing.
157 In this light, it is clear that identification in the media and other public forums
can have severe harms for children who are victims of crime.
The media respondent’s stance on these harms
158 The need for anonymity protections for child victims of crime under section
154(3) does not require proof that every child victim will suffer the harms of
identification in the media to an equal degree. Instead, it is only necessary to
show that the risk and severity of the harm that a child victim may suffer is
sufficient to require protection as a default. The evidence presented by the
applicants has established this need.
159 In response, the media respondents assert that it is not generally harmful to
identify a child victim of crime in the media.13 They go further to assert that it
is only harmful to identify victims of sexual violence and child abuse. These
assertions are incorrect and are not supported by any credible evidence:
159.1 As indicated above, the media respondents present no evidence to
challenge the expert evidence of Dr Del Fabbro on the nature of
12 Reply, p 811, para 41.13 AA, pp 482 – 483, paras 49, 51.
61
childhood trauma and the dangers of re-traumatisation, stigma, shame
and other psychological harms caused by identification in the media.
159.2 Dr Del Fabbro also points out that the psychological harms of
identification apply to child victims generally and are not limited
exclusively to instances of child abuse and sexual offences.14
160 The only evidence the media respondents can provide in support of the
alleged beneficial consequences of identification is a set of news articles
about child victims. These examples fall into two broad categories:15
160.1 Necessity : examples where it is alleged to be necessary to publish
children’s identities to protect children or others from harm, such as
missing person notices, or as a necessary part of police investigations.
160.2 Consent: examples of child victims who have consented to have their
identities published or have spoken openly about their experiences in
the media.
161 It must be noted that cases of necessity and consent are the exception rather
than the rule. These rare instances are not a basis to deny general protection
under section 154(3) to vulnerable child victims such as KL and MVB who
have not consented to having their anonymity removed and where no
emergency exists.
14 Supporting affidavit of Dr Del Fabbro, pp 951 – 953, paras 6 – 9; Reply, p 815, para 48.2.15 AA, pp 482 – 491, paras 49 – 57.
62
162 Moreover, section 154(3) already contains the necessary flexibility to deal
with these exceptional cases of emergencies and consent.
163 In relation to emergencies, where publication of a child’s identity is necessary
to prevent harm to the child or others, any person who publishes the identity
of a child has a common law defence of necessity.
164 In relation to consent, where there is genuine consent this would generally
have no direct impact on the children concerned and there would be no
difficulty in approaching a court to lift the anonymity protections.
164.1 On a proper interpretation of section 154(3), it does not criminalise the
very children it is designed to protect. Child victims would not face
criminal charges if they choose to reveal their identities and to speak
publicly about their experiences.
164.2 In addition, if the media have obtained consent from a child and his or
her guardian then an application to court to lift the anonymity
protection under section 154(3) would be a swift and inexpensive
process.
164.3 However, court oversight is still appropriate in these cases to ensure
that consent is informed and genuine. This is a necessary part of the
courts’ role as the upper guardian of the child’s best interests.
165 As a consequence, section 154(3) allows for anonymity protections to be
lifted in exceptional cases where identification may not be harmful to the
63
child. However, it is important for the law to err on the side of caution by
offering automatic protection to child victims as a default position, given the
severe harms that may follow for a child.
Absence of effective alternative protections
166 The media respondents contend also that section 154(3) need not protect
child victims because there are alternative means of protection available.
This is not correct. As we demonstrate in what follows, none of the
alternative mechanisms provide suitable alternative protections for the
anonymity of child victims.
Common law remedies: interdicts and damages
167 A common law interdict is an extraordinarily difficult and unrealistic prospect
in the vast majority of cases of child victims.
167.1 First, there is no way for a child to know in advance that a particular
media house may be considering identifying her.16
167.1.1 There is no obligation on the media to give a child advance
notice that they are about to identify the child, let alone
advance notice that would be sufficient to permit them to
approach a court before publication to obtain an interdict.
167.1.2 For instance, KL and her legal representatives did not know
that a book on her life was being prepared for publication,
16 SFA, p 246, para 150.
64
including identifying information. It was only by chance that
this was discovered before publication.17
167.2 Second , as KL’s case further demonstrates, the time, effort, and
resources necessary to launch an application for interdictory relief are
substantial, putting this remedy beyond the reach of all but the rich or
the fortunate few who have access to free and sufficiently skilled legal
assistance.18
167.2.1 Drafting and launching Part A of this application on behalf of
KL required the attention of a large and experienced legal
team. It also involved citing no fewer than twelve separate
media defendants as it was impossible to be sure which
media organisations were likely to identify KL.
167.2.2 The notion that an ordinary child accused, offender, victim or
witness must initiate and go through this process every time
they turn 18, just to preserve their anonymity, is hopelessly
unrealistic.
167.2.3 This is especially the case given that there is no general
system of legal aid for civil litigation of this nature (as opposed
to criminal cases). Legal Aid South Africa is overstretched,
and cannot realistically be expected to timeously assist
children who might wish to bring applications of this sort, even
17 Ibid, p 247 – 248, para 150.2; Annexure AMS 38, pp 389 – 390; Annexure AMS 40, p 925.18 Ibid, pp 247 – 248, paras 150.3 – 150.6.
65
if the child is in the fortunate position of knowing that an
application is required.19
167.3 Third , in bringing litigation, litigants often expose themselves to greater
publicity and media attention.
167.4 Finally , it is also unjust to place the onus and the risk on some of the
most vulnerable members of society to show why protection is
necessary.
168 In the event that a child victim does not obtain an interdict and publication of
the identifying information occurs, all that is then left is a common law
damages claim.20
168.1 A damages award can never undo the harm that is done to a child by
identification. Those harms have been set out above at length.
168.2 Once a child has been identified, the damage is irreparable and
cannot be remedied by monetary compensation or an apology.
169 In this light, common law remedies do not adequately protect child victims
against the harms of identification.
Protections under the CPA
170 A central plank of the media respondent’s defence is that other provisions in
sections 153, 154 and 170A of the CPA offer adequate protection to child
19 SFA, p 247 – 248, para 150.20 SFA, p 248, paras 150.7 – 150.9.
66
victims who do not testify at trial.21 These are all mechanism that apply both
to adults and children. More critically, none of them offer no adequate
protection to these child victims.
171 First , an order declaring proceedings in camera and prohibiting the
publication of information about the proceedings, in terms of section 153(1)
and section 154(1) of the CPA, only prohibits the publication of information
relating to proceedings or the part of proceedings that are held in camera.
171.1 This confines any prohibition to the information that comes to light
during these proceedings.
171.2 In many cases this will not prevent the identification of a non-testifying
child victim, especially where the child’s identity is already known from
other sources.
172 Second , section 153(2) of the CPA only allows for anonymity protection for
those who testify at the trial. It offers no protection to non-testifying child
victims.
173 Third , section 153(3) read with 154(2)(a) prohibits the publication of
information that identifies or may identify the complainant in cases involving
sexual offences or extortion if the proceedings are declared to be in camera.
These provisions offer no protection for non-testifying child victims of other
crimes, including deeply traumatic offences such as robbery, kidnapping, or
assault.
21 AA, pp 491 - , para 59 -
67
174 Finally , the media respondents make fleeting reference to section 170A of
the CPA. This provision allows child witnesses to give evidence through
intermediaries. This provision only applies to witnesses, not non-testifying
victims, and it provides no protection against a child’s identity being revealed
in the media.
175 In this light, the existing CPA provisions provide no adequate protection to
child victims. The question of whether a court can act mero motu to protect
the anonymity of child victims does not even arise in the majority of cases, as
the CPA provides no basis to protect these children.
176 It is also notable that these other protections in the CPA only apply from the
time that the criminal trial proceeds.
176.1 They offer no protection to child victims before or after the trial process
has commenced, even if they may later be called as witnesses.
176.2 They also do not protect child victims if the proceedings never
commence or if they come to an end for any number of reasons,
including the accused pleading guilty, the death of the accused, a lack
of evidence, or delays in the investigation and prosecution of the case.
This makes any protection contingent on many arbitrary variables.
176.3 By contrast, section 154(3) protects the anonymity of child accused
from the moment they become an accused, irrespective of whether or
when the trial commences. We submit that similar protection must be
afforded to child victims under section 154(3).
68
177 We also point out the irony in the media respondents’ claim that the other
provisions of the CPA offer a “less burdensome” means of protecting child
victims than the remedy that the applicants propose:22
177.1 All of the other CPA protections require proceedings to be declared in
camera as a prerequisite for imposing reporting restrictions.
177.2 Where proceedings are declared in camera, the media and members
of the public are cleared from the court room and are not allowed to
witness the trial unfold first-hand.
177.3 This is a far greater limitation of the principle of open justice and the
right to media freedom than the more limited anonymity protections
afforded by section 154(3).
178 In this light, the media respondents’ reliance on the in camera provisions as
a better tool for protecting non-testifying child victims is both incorrect and
contradicts their avowed concern for open justice and media freedom.
179 Finally, we note that some courts may use their inherent jurisdiction to
prohibit the publication of a child victim’s identity. However, this possibility is
also insufficient to protect all child victims:
179.1 The magistrates’ courts, where the majority of criminal matters are
heard, do not have any inherent jurisdiction and could not make such
an order unless expressly empowered by statute. Even where a High
22 AA, p 495, para 63.
69
Court has this power, there is no guarantee that courts and legal
representatives will be alive to the need to make such an order.
179.2 Automatic protection under section 154(3) of the CPA solves both of
these problems and affords children the certainty that their anonymity
will be protected.
The Press Code
180 The Press Code provides for a system of self-regulation for the print and
online media. The media respondents’ own expert, Franz Krüger,
recognises that self-regulation by the media and legislative protections
should go hand-in-hand:
“There can be no dispute that some legislative prohibitions and sanctions are justifiable, as they may prevent serious harm without unduly censoring and restricting media freedom.”23
181 The Press Code must be supported by statutory protection under section
154(3) of the CPA. This is because the Press Code does not offer sufficient
protection to child victims, for four reasons.
182 First , the Press Code only covers print and online media organisations that
have voluntarily agreed to be bound by its terms:
182.1 Not all media outlets are subject to the Press Ombudsman. For
example, in March 2015, the New Age newspaper pulled out of the
Press Council ombudsman system.24
23 Affidavit of Franz Krüger, p 770-71, para 29. 24 Reply, p 830, para 72; Annexure AMS 53, p 967.
70
182.2 Moreover, with the advent of social media, it is important also that
vulnerable children do not have their identity spread by persons other
than the commercial media. Yet these persons too are not subject to
the Press Code.25
183 Second , the provisions of the Code which deal with child victims of crime do
not expressly protect all child victims of crime from being identified.26
183.1 Clause 3.4 only protects the identities of all victims of rape and
sexual violence;
183.2 Clause 8.1.3 only provides express protection for child victims of
abuse and exploitation.
183.3 In all other cases, child victims would only have recourse under the
general provision for privacy (clause 3.1) and the general
requirement not to “cause harm of any kind to a child” (clause 8.1.1).
184 Third , the complaints procedure under the Press Code is only backward-
looking and does not offer any immediate way to prevent harmful publication
from occurring.27
184.1 Both KL and MVB have both brought complaints about being identified
in the media. However, these complaints were unable to prevent the
harm from occurring.
25 Reply, p 831, para 73.26 Ibid, pp 827 – 828, para 67.1.27 Ibid, p 828, para 67.2.
71
184.2 The relief that a child victim can obtain under the Press Code cannot
undo the harmful effects of being identified in the media. An apology
or a sanction under the Press Code is small comfort for child whose
identity has already been revealed.28
185 Fourth , the attitudes that the media respondents have expressed about
anonymity protections for child victims also leave doubts about whether self-
regulation is, by itself, sufficient to protect these children.29
185.1 The media respondents claim that identification in the media is
generally beneficial to child victims and suggest that sales and
readership numbers can justify withholding anonymity protections.30
185.2 These attitudes have been expressed in their conduct, as the
publications owned by the media respondents have repeatedly acted
in breach of the Press Code in their reporting on child victims, as is
evident in their treatment of KL and MVB.
185.3 These attitudes and actions reinforce the need to have legal
safeguards in addition to self-regulation.
186 The need for legal protection under section 154(3), in addition to the Press
Code, is made starkly apparent in the media’s treatment of MVB.
186.1 As the affidavit from Advocate Buikman SC the media has not been
complying with the Press Code in their coverage of MVB.
28 Ibid, p 828, para 67.3.29 Ibid, p 828 – 829, para 68. 30 AA, pp 507 – 508, paras 88 – 90.
72
186.2 Indeed, even when a court order was obtained, framed along the lines
of the Press Code, the media has still not complied.
186.3 It bears emphasis too that MVB is fortunate to have a senior counsel
acting as her curator ad litem, which the support of a very large
attorneys’ firm – ENS Africa. If even these resources and expertise
have not been effective in ensuring media compliance with the Press
Code, it is scarcely conceivable that ordinary vulnerable children
without access to these resources can themselves vindicate their
rights.
187 MVB’s experience makes a mockery of the media respondents’ claim that
their breaches of the Press Code are so “occasional and exceptional” that no
further protection is needed for child victims.31
International trends in protecting the anonymity of child victims
188 The need to protect the rights of child victims in South Africa should be seen
in the context of international trends.
189 In other open and democratic societies with similar recognition of children’s
rights and similar approaches to freedom of expression, law-makers and
courts have supported automatic anonymity protections for all child victims of
crime, not merely victims of specific crimes, such as sexual violence or child
abuse.
31 AA, p 499, para 73.
73
Properly interpreted, section 154(3) protects child victims
190 In light of the need for anonymity protections for child victims, we submit that
section 154(3) must be interpreted as applying to this vulnerable group of
children.
Principles of interpretation
191 Section 39(2) of the Constitution mandates that statutes be interpreted in
light of the Constitution. Section 39(2) requires that:
“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
192 The Constitutional Court explained the effect of this provision most recently
in Makate:1
“[E]very court that interprets legislation is bound to read a legislative provision through the prism of the Constitution. In Fraser, Van der Westhuizen J explained the role of section 39(2) in these terms:
“When interpreting legislation, a court must promote the spirit, purport and objects of the Bill of Rights in terms of section 39(2) of the Constitution. This Court has made clear that section 39(2) fashions a mandatory constitutional canon of statutory interpretation.”
It is apparent from Fraser that section 39(2) introduced to our law a new rule in terms of which statutes must be construed. It also appears from the same statement that this new aid of interpretation is mandatory. This means that courts must at all times bear in mind the provisions of section 39(2) when interpreting legislation. If the provision under construction implicates or affects rights in the Bill of Rights, then the obligation in section 39(2) is activated. The court is duty-bound to promote the purport, spirit and objects of the Bill of Rights in the process of interpreting the provision in question.
The objects of the Bill of Rights are promoted by, where the provision is capable of more than one meaning, adopting a
1 Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC) at paras 87-89
74
meaning that does not limit a right in the Bill of Rights. If the provision is not only capable of a construction that avoids limiting rights in the Bill of Rights but also bears a meaning that promotes those rights, the court is obliged to prefer the latter meaning.”
193 This principle is subject to the proviso that the “can be reasonably ascribed
to the section” or is not “unduly strained”.2 In this regard, a purposive
approach is required, paying due regard to the text, context, and
constitutional values.3
Applying these principles of interpretation to section 154(3)
194 It must be recognised that section 154(3) of the CPA gives expression to the
state’s positive duties to protect children’s rights and to secure their best
interests.
194.1 Section 154(3) ensures that the best interests of the child are
protected by making anonymity the default position in criminal
proceedings, with the courts having the final say on whether these
protections should be lifted.
194.2 In doing so, this provision also protects the privacy, dignity, and fair
trial rights of children in criminal proceedings.
2 Democratic Alliance v Speaker, National Assembly and Others 2016 (3) SA 487 (CC) at para 333 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) at para 28.
75
195 Section 154(3) therefore is an important means by which the state protects
the rights of children in criminal proceedings and must be interpreted in line
with this protective purpose.
196 When interpreted in light of this purpose, the phrase “witness at criminal
proceedings” in section 154(3) is reasonably capable of an interpretation that
applies to all child victims of crime.
197 First , all victims are “witnesses” to the crimes they have suffered.
197.1 All child victims could potentially be called as witnesses at the trial or
in future criminal proceedings.
197.2 The fact that they may not be called as witnesses in existing
proceedings or may be reluctant to give evidence does not change this
fact.
197.3 It would be absurd to hold that a victim loses all protection against
identification if he or she decides not to testify or is too young to testify.
Such an interpretation could never be in the best interests of the child.
197.4 Moreover, restricting the meaning of “witness” to those children who
actually testify would have the undesirable consequence of coercing
vulnerable victims into testifying in exchange for anonymity
protections. Protection for the basic rights of children should never be
used as a bargaining tool.
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198 Second , the phrase “at criminal proceedings” merely serves as confirmation
that section 154(3) applies to criminal matters. This phrase does not entail
that the protection afforded by section 154(3) only applies from the moment
that a child victim takes the stand at trial. Such an approach would give rise
to extraordinary and arbitrary anomalies:
198.1 It would allow the media to freely identify child victims at any time
before they are called as witnesses at the criminal proceedings.
198.2 It would also mean that where a victim was willing and able to testify,
but the trial does not run, the accused pleads guilty, or the victim’s
evidence is not ultimately required, the victim then obtains no
confidentiality protection at all.
198.3 Similarly, if the victim is deemed too young or vulnerable or
traumatised to testify, the victim also obtains no confidentiality.
198.4 There is no basis for thinking that Parliament wanted or was prepared
to allow to such anomalous treatment of vulnerable child victims.
198.5 Indeed, the Minister confirms that this was never the intention and that
section 154(3) should be interpreted as applying to child victims.4
199 Accordingly, section 154(3) of the CPA is reasonably capable of being
applied to child victims.
200 The media respondents contest this interpretation on three flawed grounds.
4 Minister’s AA, p 785, para 3.5.
77
201 The media respondents incorrectly suggest that the term “witness” in section
154(3) has a precise meaning that excludes victims who do not testify.5
201.1 The term “witness” is never defined in the CPA.
201.2 Witnesses are referred to variously as a “witness” (without
qualification), a “person, other than an accused, [who] testifies” (s
153(2)), or “a witness … giving evidence at such proceedings” (s
153(5)).
201.3 As this indicates, where the CPA intends to confine protections to
those who actually testify at proceedings, it does so expressly.
201.4 By contrast, the term “witness” in section 154(3) of the CPA does not
restrict this protection to those who actually testify. It is sufficiently
broad to encompass child victims, such as KL, who do not testify at
trial or have not yet testified.
201.5 Indeed, that interpretation better gives effect to children’s rights under
the Constitution.
202 The media respondents incorrectly suggest that section 154(3) has a limited
purpose of merely ensuring that children do not fear being identified by
taking the stand to give evidence.6
202.1 This is an unjustifiably narrow interpretation of section 154(3), ignoring
its broader purpose of protecting the constitutional rights of children
5 AA, p 471, para 26.16 AA, pp 473-474, para 29.
78
involved in criminal proceedings and safeguarding them from the
broader harms of identification.
202.2 It also has the implication that section 154(3) is merely a tool to coerce
vulnerable children into taking the stand by offering anonymity
protection in exchange for testimony. That is entirely inconsistent with
a child’s best interests.
202.3 Moreover, the media respondents’ understanding of the purpose of
section 154(3) is inconsistent with the protections provided to children
who are accused of crimes. Children accused of crimes enjoy
anonymity protection from the moment they are arrested and they
continue to enjoy this anonymity protection even if they do not testify.
As a result, section 154(3) clearly has a far broader protective purpose
than simply encouraging children to testify.
202.4 Even if the media respondents’ understanding of the purpose of
section 154(3) were correct, it would make little sense to allow the
media to freely reveal the identities of victims before they are called as
witnesses. If victims are to be reassured that their anonymity will be
protected while testifying, this anonymity protection must be in place
before the trial commences. If the media were free to identify a child
victim at any time before they testify or before they are identified as a
witness this would undermine this purpose entirely.
203 Finally, the media respondents contend that section 154(3) is an offence and
therefore it must be narrowly interpreted.7
7 AA, p 474, para 30.
79
203.1 The Constitutional Court recently explained this principle of restrictive
interpretation of penal provisions in Democratic Alliance v African
National Congress:8
"In case of doubt, we are obliged to interpret [criminal] prohibitions restrictively. This means that we must resolve any ambivalence in them, or uncertainty about their meaning, against the risk of being penalised.
203.2 However, this principle of restrictive interpretation is not a cast-iron
rule that requires courts to ignore the best interests of the child. It is an
interpretative principle of some weight, but one which must be
weighed against the principle that a child’s best interests are of
paramount importance.
203.3 Given child victims’ need for protection under section 154(3) and the
anomalous results of the interpretation contended for by the media
respondents, it is clear that their restrictive interpretation cannot be
favoured.
204 As we have explained in great detail above, interpreting section 154(3) as
including child victims of crime strikes the best possible balance between the
rights of these vulnerable children and the countervailing interests of media
freedom and open justice.
204.1 Section 154(3) does not prevent the media from reporting fully on the
trial and from attending court. They are merely prevented from
revealing the identity of the child, a mere “sliver of information”, that
has little or no public interest value in the majority of cases.9
8 2015 (2) SA 232 (CC).9 FN v RE [2000] 1 SCR 880
80
204.2 In those rare circumstances where the public interest favours
identifying a child victim, the media and any other person is fully
entitled to request that the court lift this anonymity.
204.3 This allows the courts to make the final decision on whether media
freedom and open justice outweigh a child’s best interests on a case-
by-case basis.
204.4 However, the default position is that a child victim’s anonymity is
protected, relieving vulnerable children of the uncertainty, risk, and
expense of having to bring a High Court application to secure their
own protection.
205 Therefore, we submit that an interpretation of section 154(3) that includes
child victims is most consistent with the purpose, text and context of this
provision and gives best effect to children’s constitutional rights.
206 On this basis the applicants are entitled to an order in terms of prayer 1 of
the Notice of Motion, declaring that the protections afforded by section
154(3) of the CPA apply to victims of a crime who are under the age of 18
years.10
10 NOM, p 4, prayer 1
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Alternatively, section 154(3) is unconstitutional to the extent that it excludes non-testifying child victims
207 In the event that this Court finds that section 154(3) cannot be reasonably
interpreted as applying to child victims of crime, we contend that section
154(3) is unconstitutional to the extent that it excludes these children.
Limitation of rights
208 The exclusion of child victims from the protection of section 154(3) amounts
to a profound limitation of their rights, as the state would be failing in its
constitutional duty to protect children’s rights.
209 First , this exclusion breaches section 28(2) of the Constitution.
209.1 As explained above, section 28(2) is both a principle and a self-
standing right.
209.2 In light of the extensive harms of public identification, it is not in the
best interests of child victims to offer them no protection under section
154(3) of the CPA while affording full, automatic protection to accused
and witnesses.
209.3 Moreover, the exclusion of child victims from section 154(3) of the
CPA gives rise to a host of anomalies, as discussed above. A child
victim who fully intends to testify may still be stripped of anonymity
protections if the trial does not run, if the accused pleads guilty, if it is
82
decided that the child’s testimony is not required, or that the child is
too young or vulnerable to testify.
209.4 It is not in the best interests of a child victim for their protection to be
subject to such arbitrary and unpredictable events.
209.5 Therefore, the law must protect child victims of crime, just as it
protects these other vulnerable categories of children, by providing
anonymity protection as a default measure.
210 Second , this exclusion breaches the right to human dignity in section 10 of
Constitution and the right to privacy in section 14 of the Constitution.
210.1 A child victim’s identity is a private fact, the disclosure of which would
cause severe mental distress to any reasonable person.
210.2 Children who are victims of crimes should not be forced to carry the
public stigma and shame of victimhood throughout their lives.
210.3 Nor should they be required to have their private concerns and matters
rendered generally accessible to the public.
210.4 Therefore, the law must protect the dignity and privacy of child victims
of crime, just as it protects the dignity and privacy of other child
witnesses and children accused of committing crimes.
211 Third , this exclusion is also irrational and in breach of section 9(1) of the
Constitution.
83
211.1 There is no legitimate purpose for excluding child victims from the
anonymity protections afforded to child accused and witnesses.
211.2 Furthermore, the exclusion of child victims is also not rationally
connected to the protective purpose of section 154(3). Child victims
are as vulnerable, if not more so, than accused and witnesses and are
therefore as deserving as protection.
211.3 As the Constitutional Court held in Sarrahwitz1 the irrational denial of
equal protection to individuals who are equally vulnerable is a
limitation of section 9(1) of the Constitution.
No justification for the limitation of rights
212 Under section 36(1) of the Constitution, limitations of rights must be
sanctioned by a law of general application and should be adequately
justified. Section 36(1) provides:
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including–
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
1 Sarrahwitz v Maritz NO and Another 2015 (4) SA 491 (CC) at para 49.
84
213 Section 36(1) calls for a proportionality analysis which requires weighing up
the competing considerations. In S v Bhulwana; S v Gwadiso2 the Court
explained this proportionality analysis as follows:
“[T]he Court places the purpose, effects and importance of the infringing legislation on one side of the scales and the nature and effect of the infringement caused by the legislation on the other. The more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be.”3
214 The state, or any other party seeking to justify the limitations, bears the onus
of showing that these limitations are reasonable and justifiable.4
215 It is clear that the rights at issue are of great importance. Given the harms of
identification in the media and the absence of effective alternative
protections, the exclusion of child victims from the protection of section
154(3) is a severe limitation of their rights.
216 It is not in keeping with the protective purpose of section 154(3) to exclude
child victims while extending anonymity protections to child witnesses and
offenders. Child victims are as much in need of protection of their
anonymity, if not more so, than child offenders and witnesses.
217 The Minister has conceded that there is no legitimate purpose for denying
child victims protection under section 154(3), as he elects to abide the
decision of this Court on this issue.
2 1996 (1) SA 388 (CC).3 Id at para 18.4 On the nature of this onus, see Minister of Home Affairs v NICRO 2005 (3) SA 280 (CC) at para 35.
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218 As a result, it has been left to the media respondents to justify the limitations
of children’s rights. They appear to contend that any limitation of child
victims’ rights is justified by the need to promote media freedom and open
justice.
219 There is little connection between this purpose of promoting media freedom
and open justice and this limitation of child victims’ rights.
219.1 As has been discussed in extensive detail above, the Constitutional
Court and foreign courts have all held that the identity of a child
generally has little value in media reporting.
219.2 In this light, the denial of anonymity protections to child victims does
little to advance the cause of open justice and media freedom.
220 There are less restrictive means available to advance open justice and
media freedom.
220.1 Those restrictive means are already embodied in section 154(3), as it
allows the media to attend criminal trials and to report fully on the
cases, provided that they respect child victims’ anonymity.
220.2 It is for this reason that the Constitutional Court and foreign courts
have viewed automatic anonymity protections such as section 154(3)
as an effective tool for balancing children’s rights with media freedom
and open justice.
86
221 Furthermore, the examples of statutes in Canada, New Zealand, New South
Wales, and the United Kingdom all demonstrate that other open and
democratic societies with a similar commitment to freedom of expression and
open justice have accepted the need for automatic anonymity protections for
child victims. Those examples are set out in Annexure A to these heads of
argument.
The media respondents’ approach is unsustainable
222 In contrast with the position taken by the Constitutional Court and foreign
courts and law-makers, the media respondents persist in claiming the
identification of child victims of crime is somehow essential to media freedom
and open justice. They do so on several flawed grounds.
223 The media respondents incorrectly assert that anonymisation leads to
greater falsification of news reports and less media accountability in reporting
on criminal matters.5
223.1 This claim is far-fetched and is not supported by any evidence.
223.2 If it were true, then it would mean that media coverage of victims of
sexual violence and children accused of crimes, whose anonymity is
currently protected under section 153 and 154 of the CPA, would be
riddled with inaccuracies and false reporting. There is nothing to
suggest that this is the case.
5 AA, pp 503 – 504, para 83.1 – 83.2. Reply, p 831, para 75.
87
224 The media respondents assert that anonymisation reduces the “human
interest” value of reporting on crimes involving children.6
224.1 It is not correct for the media respondents to attempt to equate
“human interest” with the public interest. Our courts have consistently
noted, there is a difference between what the public finds interesting
and what is in the public interest:
“It seems obvious that what it is in the public interest for the public to know may not in fact be interesting to the public and that what the public finds interesting it may not be in the public interest for the public to know. … Prurient or morbid public curiosity, no matter how widespread, about things which are ordinarily regarded as private or do not really concern the public cannot be the test [for public interest].”7
224.2 Attention-grabbing, sensational reporting on children that uses their
real names and photographs may have “human interest” value, but it
cannot be suggested that it is in the public interest for such information
to be published.
224.3 Furthermore, it is significant that the media respondents never claim
that the human interest value of a story requires the use of a child
victim’s real name. KL’s case is a very good example. Members of
the public are well aware of and engaged in the story of “Zephany
Nurse”, but KL’s identity has not been revealed. This makes clear that
the human interest value of using names can be satisfied by using
appropriate pseudonyms.
224.4 Anonymisation does not require bland acronyms or disjointed stories
about “X and Y”, as the respondents claim. The use of appropriate 6 AA, pp 501 – 508, paras 79 – 90. Reply, pp 831 – 832, para 76.7 Independent Newspapers Holdings Ltd and Others v Suliman [2004] 3 All SA 137 (SCA) at paras 42 – 43.
88
pseudonyms would address most of the media respondents’ concerns.
Some degree of journalistic creativity is necessary, but that minor
imposition is trivial in comparison with the harms of identifying a child
victim, witness or offender in the media.
225 The media respondents argue that anonymisation of stories about child
victims reduces readership and viewership which will consequently affect
media revenues.8
225.1 This argument makes the deeply problematic assumption that the best
interests of the child and respect for child victims’ dignity and privacy
can be trumped by commercial considerations.
225.2 This proposition must be forcefully rejected. The best interests of the
child principle requires that a child’s interests be given paramount
importance in all matters. Media organisations cannot seek to make
profit at the expense of children.
225.3 Moreover, the media respondents’ claims are not supported by any
evidence. As owners of many of the largest media organisations in
the country, the media respondents have ready access to readership
figures and would have no difficulty in providing statistics to support
their claims if they were true. No evidence has been forthcoming.
225.4 Finally, if the respondents’ claims were true then it would follow that
the CPA’s existing anonymity protections for victims of sexual offences
and children accused of crimes have led to a reduction in readership
8 AA, pp 507 – 508, paras 88 – 90. Reply, pp 832 – 834, paras 77 – 78.
89
and less media coverage of these issues. Again, there is no evidence
to suggest this.
226 We stress that section 154(3) already caters to those rare cases where it is
in the public interest to publish the identity of a child victim: an application
can be brought to court to lift the anonymity protections.
227 In this light, concern for media freedom and open justice provides no
justification for excluding child victims from all protection under section
154(3) of the CPA. The outright exclusion of these children is an entirely
disproportionate violation of their rights.
228 Accordingly, section 154(3) is unconstitutional and invalid to the extent that it
excludes child victims.
The appropriate remedy
229 This Court’s remedial powers are set out in section 172(1) of the Constitution
which provides:
“(1) When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including -
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”
90
230 In the event that this Court concludes that section 154(3) is the extent that it
excludes non-testifying child victims, it is required to declare it invalid to this
extent. This is required by section 172(1)(a) of the Constitution and is dealt
with by prayer 2.1 of the Notice of Motion.9
231 What then arises is how that constitutional defect is to be remedied, in terms
of section 172(1)(b) of the Constitution. This involves the question of what is
“just and equitable”. There are two options available to this Court in this
regard.
232 First , this Court could adopt the remedy of reading-in that is contemplated in
prayer 2.2 of the Notice of Motion.10
232.1 This would involve this Court making an order that section 154(3) of
the CPA should be deemed to read as though it provides as 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 eighteen years or of a witness at criminal proceedings who is under the age of eighteen years or of a victim of a crime under the age of eighteen years: Provided that the presiding judge or judicial officer may authorize 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.”
232.2 A reading-in order is an effective and appropriate remedy where the
constitutional invalidity of a statutory provision can be cured with
sufficient precision without unduly interfering with the statutory
scheme.11
9 NOM, p 4, prayer 2.110 NOM, p 5, prayer 2.211 Ibid at para 74.
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232.3 The Constitutional Court has indicated that reading-in is particularly
effective in curing the under-inclusiveness of legislation that serves a
protective purpose. In C v Department of Health and Social
Development, Gauteng,12 Skweyiya and Froneman JJ
acknowledged that:
“Reading-in is most commonly used to cure unconstitutionality based on the under-inclusiveness of a statutory provision that unjustifiably infringes the rights of identifiable groups that are excluded from certain benefits.”13
232.4 The proposed reading-in orders are necessary to provide effective
protection for children’s rights by curing the under-inclusiveness of
section 154(3) of the CPA.
232.5 Moreover, it is highly significant that the Minister contends that
Parliament intended section 154(3) to protect child victims and for
these protections to continue after children who are subject to this
protection turn 18. These reading-in orders would merely align the
text of section 154(3) with this legislative intention.
232.6 These reading-in orders are also formulated with sufficient precision,
in a way that preserves the balance of interests that is embodied in
section 154(3). Parliament has already decided that the appropriate
way to balance children’s rights with the right to media freedom and
open justice is to provide automatic and indefinite anonymity
protections to children, subject to the courts’ power to lift these
12 C and Others v Department of Health and Social Development, Gauteng, and Others 2012 (2) SA 208 (CC).
13 Ibid at para 51. For other examples of cases where the Constitutional Court has used reading-in to extend protective legislation to include additional vulnerable groups, see: Khosa and Others v Minister of Social Development and Others 2004 (6) SA 505 (CC); Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC); Satchwell v President of the Republic of South Africa & another 2002 (6) SA 1 (CC
92
protections where this is just and equitable. The reading-in orders
merely ensure that this balance is applied to equally vulnerable groups
of children.
232.7 Finally, any choice of reading-in order this Court makes is not the final
word on the matter, as Parliament may amend or fine-tune this remedy
as it sees fit.14
233 The second option is for this Court to suspend the declaration of invalidity for
a period of two years for Parliament to consider how best to correct the
defect. The applicants have no difficulty with this approach, provided that it
is coupled with an interim reading-in order to operate during this period.
233.1 The interim reading-in order would be in the same terms as indicated
in paragraph 232.1 above, but would apply until such time as
Parliament effects amendments to section 154(3) to bring it into
compliance with the Constitution.
233.2 The interim reading-in will ensure effective protection for child victims
immediately, but also allow scope for Parliament to perform its
constitutionally ordained role. As the Constitutional Court has
explained:
“With interim reading-in, there is recognition of the Legislature’s ultimate responsibility for amending Acts of Parliament: reading-in is temporary precisely because the Court recognises that there may be other legislative solutions. And those are best left to Parliament to contend with.”15
14 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at para 7615 Gaertner and Others v Minister of Finance and Others 2014 (1) SA 442 (CC) at para 84
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234 The media respondents raise two primary criticisms of the proposed remedy.
235 The media respondents suggest that this relief would place an untenable
burden on the media and courts, as the media would be required to go to
court each time they wish to lift the extended anonymity protections under
section 154(3).16
235.1 This is entirely unfounded.17 The media respondents have not shown
that they face any difficulties or hardship in approaching courts for
permission to publish the identities of child witnesses and accused
under section 154(3).
235.2 The media’s conduct in DS and MO’s cases show that the media
have no difficulty approaching the court to lift anonymity protections
or to gain access to in camera proceedings.
235.3 As a result, is difficult to see how the inclusion of child victims within
the protection of section 154(3) or continued protection after child
victims, witnesses or accused turn 18 would impose an untenable
burden on the media or the courts.
235.4 The media respondents also fail to show how any burden they may
experience is greater than the burden which they seek to impose on
child victims, witnesses and offenders. The media respondents’
position is that it is better to place the burden and risk of approaching
a court for relief on some of the most vulnerable members of society
16 AA, pp 508 – 509, paras 91 – 99. 17 Reply, pp 798 – 799, para 25.
94
who generally lack the information or resources to bring such an
application. This is not tenable in the light of the approach taken by
our Constitution, particularly section 28(2).
235.5 Moreover, any increase in the number of applications to court to lift
anonymity protections is to be welcomed. As upper guardians of all
children, it is appropriate that the courts have the final say on whether
the best interests of the child are being adequately respected on a
case-by-case basis. It is certainly preferable and more in keeping
with the Constitution than a position where the media make this
assessment for themselves.
236 The media respondents then claim that the relief the applicants seek casts
the net too wide, as it would prohibit the publication of children’s identities in
circumstances where publication is considered beneficial – such as
circumstances of necessity or consent.18
236.1 This too is unfounded. Section 154(3) and the other CPA provisions do
not currently expressly permit publication in cases of consent or
necessity, unless a court grants permission. Yet there is no suggestion
that media, police or anyone else has experienced any difficulties in
this regard.
236.2 This is, no doubt, because section 154(3) already contains the
necessary flexibility to allow exceptions for publication in cases of
18 AA, pp 515 – 520, paras 107 – 113.
95
genuine consent and necessity, for all the reasons we have provided
above.19
236.3 In this light, the media respondents’ criticism of the remedy the
applicants propose should not distract from the need for expanded
protections under section 154(3) to protect the rights of these
children.
237 This Court should accordingly grant the relief sought in prayer 2 of the Notice
of Motion20 or, alternatively, adjust prayer 2.2 to provide for a suspension of
invalidity coupled with an interim reading-in.
19 See paragraphs 160 - 165 above.20 NOM, pp 4-5, prayer 2
96
PART 4: PROTECTION FOR CHILD VICTIMS, WITNESSES, ACCUSED AND OFFENDERS AFTER 18
238 A child’s need for protection from public identification does not stop when
they turn 18. Ongoing protection is needed under section 154(3) in order to
ensure that their rights are secured.
239 In this part, we address the following points in turn:
239.1 The need for ongoing protection once the child reaches adulthood;
239.2 Properly interpreted, section 154(3) of the CPA continues to protect
children after they turn 18; and
239.3 In the alternative, section 154(3) of the CPA is unconstitutional to the
extent that it fails to provide ongoing protection.
The need for ongoing protection in adulthood
The harms of identification
240 As outlined above, child victims, witnesses and offenders are exposed to
significant harm if they are identified. These include the harms of
traumatisation, shame, stigma, and the fear of being identified.
241 These children require ongoing protection into their adulthood for three
important reasons:
97
241.1 First , the vulnerabilities of their childhood do not disappear as soon as
they turn 18. They remain at risk of all the harms identified above.1
241.2 Second , as a result of the trauma they experienced in childhood,
adults who were victims, witnesses or offenders during their childhood
remain at great risk of suffering further psychological trauma if they are
publicly identified in adulthood and forced to relive the traumas of their
childhood. This is the harm of “regression”.2
241.3 Third , the fear of identification in adulthood is a further harm that child
victims, witnesses and offenders experience. Ongoing protection into
adulthood is needed in order to reassure and protect children while
they are still under the age of 18.3
242 We now turn to deal with the particular effects of identification on victims and
witnesses, on the one hand, and accused and offenders, on the other.
Child victims and witnesses
243 As outlined above, identification in the media poses additional risks for
victims and offenders.
244 The threat of identification in adulthood is an obstacle to the victim or witness
coming forward to report crimes or to testify. A victim or witness does not
merely need the assurance of automatic anonymity protection during their
1 SFA, p 222, para 83. 2 SFA, p 223, para 84.1. 3 SFA, p 223, para 84.2.
98
childhood. They must also be assured that they will not be identified later in
life.4
245 Moreover, the healing process requires that victims and witnesses be free of
constant reminders of the traumatic experiences in their childhood. Healing
is a life-long process and the need for protection does not disappear as soon
as the child turns 18. The danger of regression remains throughout a child
victim’s adult life.5
246 A child victim may decide to reveal their identity in their adulthood, once they
have come to terms with what happened to them. However, this must be on
their own terms. Contrary to what the media respondents’ suggest, it cannot
be permissible for the media to make this decision on behalf of the victim.6
Child offenders
247 Offenders are also at risk of substantial harm if they are identified after
turning 18. Notably, the media respondents concede all of the evidence on
the harms to child accused and offenders.7
Impact at pre-trial and trial stages
248 Child offenders face the problem of the “ticking clock” when they are
approaching the age of 18.8
4 SFA, pp 231 – 232, paras 108 – 111. 5 SFA, pp 232 – 234, paras 112 – 116. 6 AA, pp 489 - 491, paras 55 – 57.7 AA, p 513, para 102; pp 543 – 544, para 151. 8 SFA, pp 234 – 237, paras 117 – 124.
99
249 This is not because of sentencing issues, as the sentence will be based on
the age of the child at the time of the offence.9 Instead, the primary risk is
that the child will be identified when they turn 18, as happened to PN, DS,
and MO.
249.1 Where a criminal trial is still in progress in some form when the child
accused or offender turns 18, the media are then very likely to name
the child.
249.2 This accordingly creates an enormous pressure on any legal
practitioner with the child’s best interests at heart to seek to conclude
the trial as quickly as possible, before the child turns 18.10
250 This pressure can compromise the right to a fair trial because speed, rather
than the full exploration of the facts and the legal defences, may seem to be
of the essence in order to bring proceedings to an end before the child’s 18 th
birthday to avoid identification.11
250.1 This pressure may influence the child to plead guilty rather than to
face a lengthy trial, or to decide not to appeal.
250.2 This is a stressor that an adult offender does not have to contend with.
For an adult, the rules of the game remain constant. For a child, on the
media’s interpretation, the rules of the game can change during the
process when they turn 18.
9 See Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC).
10 SFA, p 235, para 119.11 Ibid, pp 235 – 236, para 120.
100
250.3 The pressure becomes particularly acute where the child offender is
fairly close to 18, or where there is likely to be a review or appeal of
the outcome.
251 This ticking clock syndrome caused by the media’s interpretation of section
154(3) is not only damaging but also unfair. Often, the child and/or his or her
legal representative is not in control of the delays. Thus a child might be
relatively young when the decision to embark on a trial is taken but repeated
postponements could result in the child turning 18 before the end of the
trial.12
252 The threat of being identified in the media at 18 also creates a difficult
environment for a child accused who must attend court during the trial. This
can significantly hinder a child’s ability to participate in criminal proceedings,
as well as making the trial even more of an ordeal.13
252.1 In her affidavit, Ms Smit discusses how children are particularly self-
conscious and attuned to how they are perceived:
“Children’s sense of self-worth is determined by the approval of the people around them and they are more acutely aware of how people respond to them. Language and nuance is very important and every gesture or comment may be a negative or positive input. If the child is aware that they are being watched by the media it affects their ability to participate in the criminal proceedings and they become more self-conscious. This is exacerbated if the child knows that the media may identify them when they turn 18. ”14 (paragraph 20)
12 Ibid, p 236, para 121.13 Ibid, pp 236 – 237, para 122 – 123.14 Ms Smit’s affidavit, p 364, para 23.
101
252.2 Ms Smit explains that this fear of identification may inhibit a child’s
ability or willingness to testify and participate in the proceedings:
“For the child to testify effectively, he will need to feel a sense of safety. There is no sense of safety if the child’s identity becomes known or if the child fears being identified when he or she turns 18. The child may feel it is futile to participate in the process because they will or have already been labelled and convicted by the public. This causes a sense of hopelessness and loss of control.”
253 While trials of children accused of crimes are heard in camera in terms of the
CJA, the media may seek to lift these in camera provisions. The possibility
of being able to identify a child after they turn 18 adds further incentive for
the media to seek to gain access to the trial, as was evident in DS’s case.15
253.1 The media gained access to DS’s trial. During the trial, photographers
and journalists crowded around DS and his family, making it almost
impossible for him to be at ease or to communicate privately.
253.2 The media took many photos of him in court, which they could not and
did not publish at the time.
253.3 However, as soon as he turned 18, the media had hundreds of
photographs which they published in newspapers and on their
websites.
254 Without the possibility of being able to identify a child after they turn 18, the
media would have less incentive to gain access to trials involving children
accused of crimes, except in cases where access is genuinely in the public
interest.
15 SFA, p 237, para 123; DS’s affidavit, pp 312 – 313, paras 22 – 28.
102
Rehabilitation and reintegration
255 Most significantly, identification, and the threat of identification, may
undermine long-term rehabilitation and reintegration of child offenders.16
256 As the Constitutional Court acknowledged in Centre for Child Law,17 the law
treats child offenders differently to adult offenders because it recognises that
children have a greater capacity for rehabilitation:
“Not only are children less physically and psychologically mature than adults: they are more vulnerable to influence and pressure from others. And, most vitally, they are generally more capable of rehabilitation than adults.18
257 In J v NDPP,19 the Constitutional Court further recognised that a child
offenders’ rehabilitation and reintegration is undermined when a child is
publicly branded as an offender in adulthood:
“Child offenders who have served their sentences will remain tarred with the sanction of exclusion from areas of life and livelihood that may be formative of their personal dignity, family life, and abilities to pursue a living. An important factor in realising the reformative aims of child justice is for child offenders to be afforded an appropriate opportunity to be reintegrated into society. … [I]t is undoubted that there is a stigma attached to being listed on the Register even if the Sexual Offences Act closely guards the confidentiality of its contents. Given that a child’s moral landscape is still capable of being shaped, the compulsory registration of the child sex offender in all circumstances is an infringement of the best-interests principle.”20
16 SFA, pp 238 – 242, paras 125 – 139.17 Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632
(CC).18 Ibid at paras 27. 19 J v NDPP 2014 (2) SACR 1 (CC).20 Ibid at para 44.
103
258 It is for this reason that courts in other countries have acknowledged that
identification of a child offender in the media and in other public forums can
significantly hamper reintegration and rehabilitation:
258.1 In the United States Supreme Court’s decision in Smith, Judge v
Daily Mail Publishing Co,21 Rehnquist J acknowledged the value of
anonymity protections in the following terms:
“This insistence on confidentiality is born of a tender concern for the welfare of the child, to hide his youthful errors and ‘bury them in the graveyard of the forgotten past’. … The prohibition of publication of a juvenile’s name is designed to protect the young person from the stigma of his misconduct and is rooted in the principle that a court concerned with juvenile affairs serves as a rehabilitative and protective agency of the State. … Publication of the names of juvenile offenders may seriously impair the rehabilitative goals of the juvenile justice system and handicap the youths’ prospects for adjustment in society and acceptance by the public.”22
258.2 In R v DB,23 the Supreme Court of Canada overturned a sentencing
provision that stripped child offenders of anonymity if they were
sentenced to an adult offence. In doing so, the Court acknowledged
the international norms on anonymity for child offenders:
“International instruments have also recognized the negative impact of such media attention on young people. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) (adopted by General Assembly Resolution A/RES/40/33 on November 29, 1985) provide in Rule 8 (“Protection of privacy”) that “[t]he juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling” and declare that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published’.”24
21 Smith, Judge v Daily Mail Publishing Co 443 US 97 (1979).22 Ibid at pp 107-108.23 R v DB [2008] 2 SCR 3.24 Ibid at para 85.
104
On that basis, it approved the Quebec Court of Appeal’s finding that
“The justice system for minors must limit the disclosure of the minor’s
identity so as to prevent stigmatization that can limit rehabilitation”.25
259 These judicial pronouncements on the impact of public identification on
rehabilitation and reintegration are amply supported by the expert evidence
in this case. This evidence emphasises that ongoing protection is needed
into adulthood.
260 First , the experts stress that stigmatisation and shame are among the most
significant barriers to a child’s successful rehabilitation.26
260.1 Identification in the media represents one of the greatest threats in this
regard, as publication of a child’s identity brands them as a criminal in
the eyes of the public.27
260.2 Publicity can also cause an offender to internalise their portrayal as a
criminal, adding a further obstacle to the rehabilitation process.28
260.3 Anonymity provides an important safeguard against this stigma,
allowing child offenders to heal and come to terms with their actions,
260.4 In her affidavit, X explains that she was able to heal because she
could start afresh and “live a new life in which people don’t judge
me”.29
25 Ibid at para 32 (emphasis added) 26 SFA, pp 238 – 239, paras 127 – 131.27 Affidavit of Ms Smit, pp 360 – 361. para 13.28 Report by Dr Del Fabbro, pp 376 – 377, paras 17 – 18.29 X’s affidavit, p 353, paras 18 – 19.
105
260.5 P also reflects on the harms of this stigma: “[B]eing known forever by
everyone for something bad that you did when you were a child can,
in a way, be the end of your life”.30
261 Second , identification in the media can impede the therapy process that is
necessary for rehabilitation. This process will often continue well into
adulthood:31
261.1 Group therapy is undermined as the stigma of identification makes the
offender wary of interacting with others for fear of recognition and
being judged.32
261.2 Family therapy is also threatened, as family members may be
reluctant to associate themselves with the offender when their identity
and their past offences are made public.33
261.3 The offender may also distrust family members, suspecting them of
giving personal information to the media.34
262 Third , the long-term prospects of reintegration into the community are also
severely threatened if the child offender’s anonymity is removed in
adulthood.35
30 P’s affidavit, p 334, para 29. 31 SFA, pp 238 – 239, paras 129 – 130.32 Affidavit of Ms Smit, pp 367 – 368, para 29.33 Ibid.34 Ibid.35 SFA, pp 240 – 242, paras 133 – 139; Affidavit of Ms Smit, p 365, para 25.
106
262.1 Without anonymity, it is very difficult for a child offender to resume a
normal life and to receive the support and assistance of his or her
community.
262.2 P and X demonstrate that continued anonymity into adulthood can
make rehabilitation and reintegration possible. Both remained
anonymous and were able to finish their schooling. Both are now
married with children and have supportive spouses and families. This
was made possible because they were able to control who knew about
their past, allowing them to maintain positive relationships and trust.
262.3 P explains the role that anonymity played in allowing her to create a
normal life:
"I think that if my identity was known to everyone, the people who have supported me would have found it more difficult to do that - because being publically connected to me would have been hard for them. So having my identity kept confidential meant that I was not alone. I could choose who to share my private information with - only the people who I really knew and could trust"36 (paragraph 19)
262.4 X relates a similar experience of gradual, ongoing rehabilitation,
facilitated by continued anonymity:
“My process of healing from the terrible incident that happened in my teens was slow and difficult. I did have some counselling in the years at the children’s home, but for me healing really came in adulthood.
It is very clear to me that an important part of my transition to successful adulthood has been the ability to live my life normally without having people watching me or talking about me.
I am now able to look back on that incident with insight, and am able to separate off from it, so that I am emotionally stable.”37
36 Affidavit of P, pp 332 – 333, para 19. See also the observations of Ms Van Niekerk on P’s case, pp 344 – 345, para 20.
37 Affidavit of X, p 353, paras 13 – 15.
107
263 P and X were lucky to be spared (thus far) the ordeal of being identified by
the media, allowing them to build new lives. But the danger and
consequences of identification are too significant to be left to chance.
The absence of effective alternative protection
264 The inadequacies of alternative protections have been addressed in detail in
considering the need for protection for child victims. The alternative
protections available to child victims, witnesses, accused and offenders after
they turn 18 are often even less effective than those available to child
victims.
CPA provisions
265 There are four deficiencies in the protections afforded by the CPA to child
victims, witnesses, accused and offenders after they turn 18.
266 First , the provisions of section 153 and section 154 do not provide tools to
protect the anonymity of child victims, witnesses and offenders after they turn
18 and while the trial is ongoing.38
266.1 In the case of child offenders, the only available protection is an order
under section 153(1) read with 154(1) of the CPA, declaring the
proceedings in camera and making a specific order that the accused’s
identity should not be revealed. As section 154(1) makes clear, an
accused’s identity should ordinarily be revealed, requiring special
38 SFA, pp 202 – 203, paras 25 – 26; Reply, pp 836 – 837, para 87.
108
circumstances for ongoing anonymity. This places the burden
squarely on the offender to show why anonymity is necessary.
266.2 In the case of child victims who do not testify at the trial, sections 153
and 154 offer no specific anonymity protections at all, except in cases
of sexual offences and extortion (153(3) read with 154(2)). The only
possibility available is to declare the proceedings in camera in their
entirety, however, even then only information arising from the
proceedings would be restricted.
266.3 Finally, in the case of witnesses, the Court may use section 153(2) to
prevent publication of the witness’s identity either indefinitely or “for a
particular period” if it appears that there is a likelihood of harm.
However, this protection is dependent on the court and the parties
being alive to the need for this protection.
267 Second , the other CPA anonymity protections are blunt instruments that
require the proceedings to be declared in camera before a person’s
anonymity can be protected. That is a more severe restriction of the rights to
media freedom and open courts than the far more limited section 154(3).39
268 Third , even where other protections under the CPA are available, courts,
prosecutors and defence lawyers may be unaware of the need to provide
protection to children.40
39 Reply, p 837, para 87.2.40 Reply, p 836, para 87.1.
109
268.1 Few courts, prosecutors or defence lawyers are sufficiently aware of
the need to make such an order.
268.2 While, in theory, all of these officials should be alive to the need to
protect the best interests of the child, the reality is often different.
268.3 This is where section 154(3) is needed to provide an automatic set of
protections irrespective of the awareness and ability of the defence
and the prosecution.
269 Finally, other CPA provisions only provide protection for so long as the
criminal proceedings are ongoing. They do not provide protection once the
proceedings have closed.41
269.1 Therefore, even if these provisions had been used in DS and PN’s
cases, they would not have prevented the media from revealing their
identities once the judgment had been handed down.
269.2 For children such as P and X, the CPA provisions could offer them no
protection at all if there was a threat that they would be identified in the
media.
270 In apparent recognition of the shortcomings of these other protections, the
media respondents concede that there might be a need to extend the
protection of section 154(3) “for a more limited period, for instance to the
conclusion of the criminal proceedings, or to the age of 21 years”.42 This
41 Reply, p 837, para 87.3. 42 AA, p 544, para 151.3.
110
concession is a welcome acknowledgment of the shortcomings of section
154(3), but it does not go far enough.43
270.1 While media interest in a child’s case tends to be greatest during and
shortly after the trial, this interest may be reignited at any time. In the
case of offenders, this interest will be particularly acute when they
come up for parole or are released.44
270.2 For offenders like DS, this is a particular concern. As he explains in
his affidavit, he fears that the media will be waiting for him when he is
released from prison and that any significant event in his life will result
in renewed publicity.45
270.3 The harms of being identified in adulthood also remain equally strong.
Child victims, witnesses and offenders continue to face the risk of
regression to the state of trauma they experienced during childhood.
The ability of offenders to reintegrate and rehabilitate is also placed in
jeopardy.
270.4 In this light, anonymity should remain the default and should be lifted
only with the permission of the court under section 154(3).
Common law remedies
271 The limitations of interdictory relief and other common law remedies have
already been addressed in extensive detail above.46 It is clear that this relief
43 Reply, p 838, para 89.44 Ibid.45 DS’s affidavit, p 310, paras 9 – 10. 46 See paragraphs 167 - 169 above.
111
is not adequate to provide sufficient protection for all child victims, witnesses,
accused and offenders after they turn 18.
The Press Code
272 Similarly, the Press Code is also insufficient to provide adequate protection.
After a child has turned 18, the various protections afforded to children are
no longer available.47
Properly interpreted, section 154(3) confers ongoing protection
273 On a proper interpretation of section 154(3), we submit that children who are
subject to its protection do not lose that protection when they turn 18.
274 As explained above, it is important to interpret section 154(3) in a manner
that gives best expression to its protective purpose and the rights of children.
275 In particular, it is important to view section 154(3) of the CPA in line with the
“principle of ongoing protection” explained above; the principle that the
consequences of childhood actions or experiences that are felt in adulthood
are also the proper concern of the section 28(2) of the Constitution.1
276 When read in light of this principle of ongoing protection, section 154(3) is
reasonably capable of an interpretation that does not strip children of
protection as soon as they turn 18.
47 See paragraph 8 of the Press Code, quoted in AA, p 498, para 71.1 J v National Director of Public Prosecutions 2014 (2) SACR 1 (CC) at para 43. See the analysis at
paragraphs - 114 above.
112
276.1 The text of section 154(3) states that persons “under the age of
eighteen years” receive automatic protection of their anonymity.
276.2 This age-based qualification determines when a person receives this
protection. It does not prescribe when this protection ends.
276.3 There is no express indication in the text that a child who is protected
under section 154(3) loses this protection as soon as he or she turns
18 years of age.
276.4 An interpretation that ensures ongoing protection gives better
expression to children’s constitutional rights and the principle of
ongoing protection embodied in section 28(2) of the Constitution. This
interpretation protects child victims, witnesses, accused and offenders
from the severe harms of identification addressed above.
277 Furthermore, when read with the Child Justice Act, it is clear that section
154(3) must continue to apply to child offenders.
277.1 Section 63(6) of the CJA makes section 154(3) of the CPA applicable
to proceedings in the child justice courts “with the changes required by
the context regarding the publication of information”.
277.2 As noted above, the courts have consistently held that when a child
offender is tried in terms of the Child Justice Act, the trial must
continue under that Act even after the child turns 18.
113
277.3 For example, in S v Melapi,2 the Court emphasised that section 4(1) of
the Act makes it clear that the Act applies to any offender who was
under the age of 18 years when he or she was handed a written
notice, served with a summons, or arrested, even if they are over the
age of 18 at the time of the trial. The Court held that to strip a child of
the protections of the CJA would render section 4(1) nugatory, as well
as depriving children of their constitutional rights.3
277.4 This approach has been followed in a range of other High Court cases,
including S v SN4 and T and Another v S.5
277.5 When section 154(3) of the CPA is read in the context of the
expansive protections of the CJA, it is clear that the anonymity
protections afforded by section 154(3) must also continue to apply to
child offenders after they turn 18. This is a change “required by the
context” of the CJA.
277.6 It would be absurd for a child offender who turns 18 to retain all his or
her other rights under the CJA, yet he or she would be stripped of all
anonymity protections under section 154(3) of the CPA.
278 If the protections under section 154(3) of the CPA apply to child offenders
after they turn 18, then these protections must also apply to child victims and
witnesses. It would be highly anomalous to afford offenders more protection
than victims or witnesses.
2 2014 (1) SACR 363 (GP).3 Ibid at para 52. 4 S v SN [2015] ZAWCHC 5 (9 January 2015)5 T and Another v S [2015] ZAFSHC 214 (5 November 2015).
114
279 As has been explained above, the interpretation contended for by the
applicants does not cause any significant restriction on freedom of
expression or open justice. Instead, it ensures that children’s rights are
balanced with these countervailing considerations on a case-by-case basis.
That is the balance that currently applies to children who are subject to the
protection of section 154(3). There is no reason to upset that balance merely
because a child has reached the age of 18.
280 On this basis the applicants are entitled to an order in terms of prayer 3 of
the Notice of Motion, declaring that children subject to section 154(3) of the
CPA, read together with section 63(6) of the CJA to the extent applicable, do
not forfeit the protections afforded by the section upon turning 18.6
Alternatively, section 154(3) is unconstitutional to the extent that it does not confer ongoing protection
281 If it is held that section 154(3) is not reasonably capable of an interpretation
that extends protection after a child turns 18, then we submit that section
154(3) is unconstitutional to that extent.
Limitation of rights
282 An interpretation that entails that children subject to section 154(3) lose its
protection upon turning 18 would be inconsistent with the Constitution in the
following respects.
6 NOM, p 5, prayer 3
115
283 First , section 154(3) would breach section 28(2) of the Constitution.
283.1 Depriving children of the protection of section 154(3) when they turn
18 has harmful effects, both before and after a child turns 18.
283.2 In light of the principle of ongoing protection, the harms of identification
that may occur in adulthood are also the concern of the section 28(2).
283.3 In addition, a child’s fear of being identified after turning 18 is a
concrete harm that affects children here and now and is also subject to
the protection of section 28(2).
283.4 Stripping a child of all protection on turning 18 also makes the
protections afforded by section154(3) entirely arbitrary. Comparing the
experiences of PN and DS with those of P and X, it is clear that a
child’s anonymity is made dependent on factors entirely beyond their
control. If a child is fortunate to have a speedy trial that concludes
before they turn 18, their anonymity may remain intact. However, if
the trial is delayed by circumstances beyond their control and they turn
18 during the trial, then they will be exposed to heightened risks of
being identified. Such arbitrariness is not in keeping with the best
interests of the child. Automatic anonymity protection is necessary to
remove this arbitrariness.
284 Second , stripping a child of all protection under section 154(3) of the CPA
also limits their right dignity.
116
284.1 Children who are victims or witnesses of crimes should not be
stigmatised and re-traumatised throughout their adult lives.
284.2 Similarly, children accused or convicted of crimes should be spared
the lifelong brand of criminality.
284.3 Identification in the media is one of the surest ways in which this
stigma and shame is caused and aggravated. Section 154(3) serves to
protect children against this stigma and the need for this protection
does not fall away when a child reaches 18.
285 Third , this would also breach the right to privacy of the children concerned, in
terms of section 14 of the Constitution.
285.1 The fact that a person was a victim, witness, accused, or offender
during childhood is a deeply personal fact, the publication of which
threatens an intimate core of a person’s private life.
285.2 It should be left to the individual to decide to whom and when they
reveal this fact as part of the long-term process of healing and
rehabilitation.
286 Finally , it would breach the right to a fair trial of the accused and offenders, in
terms of section 35(3) of the Constitution.
286.1 As has been explained in detail above, the threat of identification on
turning 18 may cause children to plead guilty or to curtail the trial in
other ways, thus denying the child the benefit of a full and fair trial.
117
286.2 This threat may also inhibit a child’s participation in the trial.
286.3 This undermines the procedural and substantive fairness of the trial
process.
No justification for these limitations
287 The limitations of these rights are not justified under section 36(1) of the
Constitution.
288 The importance of the rights at stake and the severity of the harms provide
compelling reasons for declaring these limitations to be without justification.
289 As with the exclusion of child victims from section 154(3) of the CPA, the
Minister implicitly concedes that there is no justification for these limitations
of children’s rights.
290 The media respondents again appear to contend that open justice and media
freedom requires the identification of child victims, witnesses, and offenders
after they turn 18. However, this justification rings hollow for all the reasons
stated above:
290.1 The identification of child victims, witnesses, and offenders in
adulthood does not substantially advance media freedom or open
justice. In the vast majority of cases, a person’s identity is a mere
“sliver of information” that does little to add to the story.
118
290.2 In any event, there is a less restrictive means available to advance
media freedom and open justice while protecting the rights of these
children. That less restrictive means is already contained in section
154(3). Children’s anonymity should be protected by default, while
allowing the courts to lift this protection where reporting on a child’s
identity is found to be in the public interest.
290.3 Lastly, as is demonstrated in Annexure B to these heads of argument,
statutory examples from Canada, New Zealand and Australia
demonstrate that other open and democratic societies have embraced
the need for indefinite anonymity protections for children, that extend
into adulthood.
291 For these reasons, there is no justification for stripping children of the
protection that they enjoy under section 154(3) of the CPA merely because
they have reached the age of 18.
292 Accordingly, section 154(3) to the extent that it fails to provide ongoing
protection to child victims, witnesses and offenders.
The appropriate remedy
293 We have dealt with this Court’s remedial powers and the relevant principles
above.1
1 Paragraphs 229 to 233 above
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294 In the event that this Court concludes that section 154(3) is the extent that it
fails to provide ongoing protection, it is required to declare it invalid to this
extent. That is dealt with by prayer 4.1 of the Notice of Motion.2
295 This Court then has the two options already highlighted in relation to
remedying the constitutional defect.
296 First , this Court could adopt the remedy of reading-in in accordance with
prayer 4.2 of the Notice of Motion.3
296.1 This would involve this Court making an order that section 154 of the
CPA should deemed to contain an additional section 154(3A) which
provides:
“(3A) Children subject to section subsection (3) above do not forfeit the protections afforded by the section upon reaching the age of 18 years.”
296.2 For the reasons already explained,4 we submit that such an order is
justified.
297 Second , this Court could suspend the declaration of invalidity for a period of
24 months and grant an interim reading-in order with the same formulation.5
298 We have already addressed above the media respondents’ criticisms of the
proposed remedy.6 We submit that these criticisms are without merit.
2 NOM, p 5, prayer 4.13 NOM, p 5, prayer 4.24 Paragraphs 232.1 to 232.7 above5 See paragraph 233.2 above6 Paragraphs 234 to 236 above
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299 This Court should accordingly grant the relief sought in prayer 4 of the Notice
of Motion7 or, alternatively, adjust prayer 4.2 to provide for a suspension of
invalidity coupled with an interim reading-in.
7 NOM, p 5, prayer 4
121
CONCLUSION
300 For all the reasons provided above, we submit that the applicants are entitled
to the relief sought in Part B of the Notice of Motion.
301 The applicants are also entitled to an order directing the media respondents,
alternatively the Minister, to pay their costs, including the costs of two
counsel.
STEVEN BUDLENDER
NZWISISAI DYIRAKUMUNDA
CHRIS MCCONNACHIE
Counsel for the applicantsChambers, Johannesburg19 October 2016
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Annexure A – comparative foreign provisions regarding the protection of child victims
Canada
1 In Canada, the Youth Criminal Justice Act 2002 protects the anonymity of all child victims and witnesses where the offender is a youth offender. Section 111 provides:
“Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.”
2 This provision applies to child victims and witnesses where the offender is a youth offender,1 and provides a blanket and mandatory ban on the publication of identifying details of victims and witnesses in such cases.2
New Zealand
3 In New Zealand, all children involved in criminal proceedings in the Youth Courts – as victims, witnesses or offenders – receive automatic and indefinite anonymity protection.3 This is in terms of section 438 of the Children, Young Persons and Their Families Act 1989.
4 In general courts, child victims and witnesses now have extensive anonymity protections as a result of reforms introduced in 2011. Section 204 of the Criminal Procedure Act 2011 provides that in criminal proceedings outside of the youth courts, the identifying information of a complainant or witness under 18 years of age must not be published.
“(1) Unless the court, by order, permits publication, no person may publish the name, address, or occupation of a person who is under the age of 18 years who—
(a) is the complainant; or1 In cases involving adult offenders, these automatic protections do not apply. This lacuna was partially
filled by the Victims Bill of Rights Act, 2015 which came into effect in July 2015. Courts are required to make an order protecting the anonymity of child victims, on application (see section 486.4(1)-(2) of the amended Criminal Code). However, this still leaves a disparity in the treatment of the victims of child offenders and the victims of adult offenders.
2 This protection is only lifted if the victim or witness publishes that information themselves after they turn 18 (or before they turn 18, with the consent of their parents), or applies to court to allow publication and the court is satisfied that publication would be in the public interest (section 111(2)-(3)).
3 The Youth Court deals with offences committed by children between 12 and 16 years of age, excluding certain serious offences.
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(b) is called as a witness in any proceeding in respect of an offence.
(2) Despite subsection (1), the name, address, or occupation of a child who dies as a result of the offence may be published.
(3) Nothing in subsection (1) prevents publication of the name of the defendant or the nature of the charge.
(4) The court must make an order permitting any person to publish the name, address, or occupation of a complainant or witness, if—
(a) the complainant or witness, having reached the age of 18 years, applies to the court for such an order; and
(b) the court is satisfied that the complainant or witness understands the nature and effect of his or her decision to apply to the court for the order; and
Australia
5 In Australia, the bulk of criminal law and procedure is legislated at state level. Australia’s most populous state, New South Wales, has its most progressive regime for the protection of the anonymity of child victims.
6 Section 15A(1) of the New South Wales Children’s’ Criminal Procedure Act 1987 provides express protection for all children involved in criminal proceedings, including child victims. Section 15A(1) provides:
“(1) The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if:
(a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or
(b) the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or
(c) the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or
(d) the person is otherwise involved in the proceedings and was a child when so involved, or
(e) the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed.”
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7 It is clear that subsection (1)(a) covers both child offenders4 and child victims.5 Subsection (1)(c) covers witnesses.
8 The protection in section 15A is automatic and applies unless reporting is authorised under one of the exceptions provided for in the following sections.
9 Section 15D allows the publication of the name of a person otherwise protected with his or her consent if they are over 16 years old, or with the consent of the court if they are under 16 years of age. The court is not to give such consent unless it is satisfied that it is in the public interest that consent be given.
United Kingdom
10 In the United Kingdom, section 49 of the Children and Young Persons Act 1933 prohibits the publication of the name, address, school or any other matter that is likely to identify a person under 18 as being “concerned in the proceedings” before the Youth Courts.6 A child or young person is “if concerned in the proceedings” they are a victim, witness or defendant.7
11 These examples show there is widespread recognition of the need for automatic anonymity protections for child victims.
4 See, for example, R v DH; R v AH [2014] NSWCCA 326.5 See, for example, Lindon v R [2014] NSWCCA 112.6 Children and Young Persons Act 1933, s 497 In the general courts, the courts have a discretion to impose anonymity protections under section 45 of the Youth Justice and Criminal Evidence Act, 1999.
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Annexure B – Comparative foreign provisions regarding ongoing protection
Canada
1 In Canada, the anonymity protections afforded to child victims, witnesses and offenders in the youth courts are indefinite and may only be lifted in prescribed circumstances.
1.1 Section 110(1) of the Youth Criminal Justice Act 2002 provides for automatic anonymity protections for child offenders.0
1.2 Section 111(1) prevents the publication of the identity of child victims and witnesses. This restriction on publication also continues after the child turns 18 years of age.
1.3 This protection may only be lifted if a child publishes that information themselves after turning 18 (or before, with the consent of their parents) or by order of court.0
New Zealand
2 In criminal matters heard in the Youth Court in New Zealand, child victims, witnesses and offenders receive automatic and indefinite anonymity protections. The anonymity protections provided by section 438 of the Children, Young Persons and Their Families Act 1989 do not terminate when a child turns 18.
3 With respect to victims and witnesses outside of the Youth Court, section 204 of the Criminal Procedure Act 2011 also provides ongoing protection after these children turn 18. Section 204(4) requires that in order for the automatic name suppression to be lifted, the victim or witness must apply to the court after they have reached the age of 18. By implication, the automatic suppression must otherwise remain in place.
Australia
4 As outlined in Annexure A, the Australian state of New South Wales affords extensive anonymity protections for child victims, witnesses and offenders under section 15A(1) of the New South Wales Childrens’ Criminal Procedure Act 1987. These protections are indefinite and continue in force after a child turns 18.
0 This is subject to exceptions in 110(2), where a child is sentenced to an adult offence, where a child has been convicted of a violent offence and a court orders the lifting of the anonymity protection, and where publication occurs in the course of the administration of justice.0 Section 110(3)-(4) (offenders) and Sections 111(2) – (3) (victims and witnesses).
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5
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TABLE OF CASES
South African cases
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)
Bernstein and Others v Bester NO and Others 1996 (2) SA 751 (CC)
Biowatch Trust v Registrar Genetic Resources & Others 2009 (6) SA 232 (CC)
C and Others v Department of Health and Social Development, Gauteng, and Others 2012 (2) SA 208 (CC)
Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC)
Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC)
City of Cape Town v South African National Roads Authority Limited and Others 2015 (3) SA 386 (SCA)
Dawood and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC)
Democratic Alliance v African National Congress 2015 (2) SA 232 (CC)
Democratic Alliance v Speaker, National Assembly 2016 (3) SA 487 (CC)
Gaertner and Others v Minister of Finance and Others 2014 (1) SA 442 (CC)
Gory v Kolver NO and Others 2007 (4) SA 97 (CC)
Hoffmann v South African Airways 2001 (1) SA 1 (CC)
Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA)
J v NDPP 2014 (2) SACR 1 (CC)
Johncom Media Investments Limited v M 2009 (4) SA 7 (CC)
Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC)
Media 24 v National Prosecuting Authority: In Re S v Mahlangu 2011 (2) SACR 321 (GNP)
Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC)
Mpofu v Minister for Justice and Constitutional Development 2013 (2) SACR 407 (CC)
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
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National Media Ltd and Another v Jooste 1996 (3) SA 262 (A)
NM v Smith 2007 (5) SA 250 (CC)
Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (6) SA 443 (CC)
Sarrahwitz v Maritz NO and Another 2015 (4) SA 491 (CC)
S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)
S v Melapi 2014 (1) SACR 363 (GP)
S v Saayman 2008 (1) SACR 393 (E)
S v SN [2015] ZAWCHC 5 (9 January 2015)
T and Another v S (184/2015) [2015] ZAFSHC 214 (5 November 2015)
Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development 2014 (2) SA 168 (CC)
Foreign cases
Australia
Lindon v R [2014] NSWCCA 112
R v DH; R v AH [2014] NSWCCA 326
Canada
AB v Bragg [2012] 2 SCR 567
Canadian Newspapers Co v Canada (Attorney General) [1988] 2 SCR 122
FN (RE) [2000] 1 SCR 880
Toronto Star Newspaper Ltd v Ontario 2012 ONCJ 27.
R v DB [2008] 2 SCR 3
United Kingdom
In re Guardian News Media Ltd [2010] UKSC 1
JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96
United States
Smith, Judge v Daily Mail Publishing Co 443 US 97 (1979)
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