File photo: Pixabay
File photo: Pixabay

Concourt deciding on the extent of identity protection

By Staff Writer Time of article published May 8, 2019

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Cape Town – The Constitutional Court yesterday heard arguments in a case dealing with the protection of the identities of child victims, witnesses and offenders before and after they turn 18.

The case was initiated when Zephany Nurse discovered in 2015 that she was kidnapped in 1997 from Groote Schuur Hospital when she was just two days old.

Zephany had for 17 years thought that the people she lived with were her biological family, but in a twist of fate she discovered her biological family when she and her younger biological sister were enrolled at the same school and pupils commented on how remarkably alike they looked.

Zephany did not want the media to publish the name she currently goes by, and had asked the Centre for Child Law to help.

At the time the Western Cape High Court granted an urgent application protecting Zephany’s identity.

Following that ruling, another case was brought in the high court in Pretoria by the Centre for Child Law, arguing that the identities of all child victims, child witnesses and child offenders should be protected beyond the age of 18 years.

The high court in Pretoria had agreed that protection should be granted before the children turn 18, but did not agree with the extension of such protection after they turned 18.

The matter was appealed to the Supreme Court of Appeal (SCA) and in September last year the SCA found that section 154(3) was unconstitutional because it does not protect the anonymity of children as crime victims in criminal proceedings.

However, the majority of the SCA had also decided not to extend the protection to after the children turn 18 years.

The majority held that the adult extension severely restricted the right of the media to impart information and infringed the open justice principle.

The centre then appealed against parts of the judgment to the Constitutional Court.

The centre said: “The centre is of the view that for children to fully benefit from having their identity protected when they are under 18, this protection should extend to after they turn 18 to prevent significant and lifelong harm.

“Evidence shows that identifying children can have a catastrophic impact on their lives. The following 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 years old as such reporting has long-lasting negative consequences.”

The Centre for Child Law, Media Monitoring Africa, Childline and Nicro are arguing on behalf of Zephany, while major media houses, the Minister of Justice and Correctional Services and the Director of Public Prosecutions are respondents.

The media respondents argue that extending identity protection into adulthood would restrict the right of the media to impart information and infringe the open justice principle.

Cape Times

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