Cape Town - A legal battle inspired by the Zephany Nurse case to protect the identities of child victims, witnesses and offenders once they reach adulthood is expected in the Supreme Court of Appeal (SCA) on Friday.
The case, initiated by the Centre for Child Law, started when Zephany, who was 17 years and nine months old when she was discovered by her biological parents, learnt the media planned to identify her by the name she now goes by.
Zephany was kidnapped from Groote Schuur Hospital in 1997 when she was just two days old and went for 17 years thinking the people she lived with were her biological family.
In a twist of fate, they were reunited in 2015 after Zephany and her younger biological sister were enrolled at the same school and pupils remarked on how remarkably alike they looked.
The centre argues before the SCA that Zephany’s case is not unique and many other children also face the risk of being identified, and harm could flow from it.
In 2016 Judge President John Hlophe convicted a 51-year-old Lavender Hill woman for the kidnapping. At the time the court granted an urgent application protecting Zephany’s identity.
That order was followed by a matter heard in the Pretoria High Court that found child victims’ identities must be protected.
The Centre for Child Law said, however, that the order did not extend to when a child turned 18.
The organisation argues that the court has acknowledged a child had lesser moral responsibility for what they did or what happened to them in childhood, and therefore it was impermissible to “punish an offender for actions in their childhood”.
Several media houses, as well as the Minister of Justice and Correctional Services and the National Director of Public Prosecutions, are cited as respondents.
“A child’s right to privacy is closely intertwined with the section 10 right to human dignity.
“The Constitutional Court has noted that pseudonyms are an appropriate means to protect vulnerable persons. In NM v Smith, the 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 real names as the ‘use of pseudonyms would not have rendered the book less authentic’. Stripping children of the protection that they enjoy under section 154(3) merely because they have reached the age of 18 is thus unconstitutional,” they argued.
Justice And Correctional Services spokesperson Steve Mahlangu said they were ready to appear in court.
“It should be anticipated that necessary preparations are in place in terms of readiness from all parties,” Mahlangu said.