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).

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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.

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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.

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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.

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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.

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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.

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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.

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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 -

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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.

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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

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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.

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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.

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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.

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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

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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

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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.

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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.

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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.

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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.

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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

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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.

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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

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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.

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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

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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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