Child rights’ group seeks swift action after Concourt victory on identity protection
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Cape Town – In a groundbreaking ruling, the Constitutional Court has extended the identity protection of minors in the justice system to when they reach adulthood.
It has also declared sections of the Criminal Procedure Act unconstitutional because they do not protect the identities of child victims of crime.
Parliament has now been given 24 months to make amendments according to the law.
The court bid by the Centre for Child Law was inspired by the Zephany Nurse case.
Zephany was 17 years and nine months old when she was discovered by her biological parents, and learnt the media planned to identify her by the name she now goes by: Miché Solomon.
Solomon may now be named as she successfully applied to have prohibitions on her naming lifted.
She has also published a book on her life’s story.
The centre argued that Zephany’s case was not unique and many other children faced the risk of being identified, which could be harmful.
In welcoming yesterday’s ruling, the centre said it was a strong endorsement of children’s rights and the need to protect their well-being throughout different stages of their lives.
“Evidence shows that identification of children’s identities can have a catastrophic impact on their lives. The following harms can result: trauma and regression, stigma, shame, and the fear of being identified.
"The centre does not discourage the media from reporting on cases. It discourages reporting that identifies child victims, witnesses and offenders before and after they turn 18 as such reporting has long lasting negative consequences,” the centre said.
It also said that it looked forward to engaging with Parliament.
“The centre calls on Parliament to expeditiously put in place the necessary legislative processes that will need to be carried out as the new year begins.”
The apex court’s ruling was a confirmation order of a Supreme Court of Appeal order.
The Constitutional Court has also made provision for 18-year-olds to consent to the publication of their identity.
When consent is not granted, then permission may be sought from a competent court.
“Stories matter. Many stories matter. Stories have been used to dispossess and to malign.
“But stories can also be used to empower, and to humanise. Stories can break the dignity of people. But stories can also repair that broken dignity.
"This case is about real-life stories, in particular, about children. It is about the way in which these are told, who decides when this should be done, and the numerous effects of storytelling.
“On the question of ongoing protection, the minority held that section 154(3) (of the Criminal Procedure Act) did not meet what was constitutionally required to protect children,” the judgment read.
It noted that there was some precedent, in other areas of law, for protections to be afforded to children extending into adulthood.
Several media houses, the minister of Justice and Correctional Services and the national director of public prosecutions (NDPP) were respondents in the matter.
The minister contended that a wide interpretation of section 154(3) ought to be ascribed as the legislature did not intend for child victims to be excluded from the protection of the section.
The minister also submitted that child accused, victims or witnesses would suffer prejudice if the anonymity protection was removed once they turned 18.
Pressed several times for comment on the judgment, the Department of Justice and Correctional Services and the NDPP did not respond.
Children’s rights organisation Molo Songololo’s director, Patrick Solomons, said South Africa had comprehensive child rights frameworks and the judgment added to them.
“Many young adults' rights may have been violated, and now they will have further protection. The court making provision for consent in naming is also a positive step, as someone one day might like to share their story,” Solomons said.