File photo: Itumeleng English/African News Agency (ANA)

Johannesburg - In yet another victory for the rights of children, the Constitutional Court ruled that the names of minors who are accused, are witnesses or victims in criminal proceedings may not be revealed even after they have turned 18.

The apex court, however, did rule that once a child embroiled in criminal proceedings turned 18, they may consent to the publication of their identity. 

If they refuse consent, their identity may be published at the discretion of a competent court.

Parliament was given 24 months to correct what these justices regarded as Constitutional defects in the Criminal Procedure Act in as far as it did not afford the additional protection to children.

These orders comes as a victory to the Centre for Child Law (CCL), who have called for the additional protection of children embroiled in the criminal legal system.

The Supreme Court of Appeal in Bloemfontein earlier ruled that Sections of the Criminal Procedure Act which did not protect the identity of child witnesses in criminal cases, had to be declared unconstitutional. 

This was because the Act did protect both child accused and witnesses, but not child victims.

The ConCourt now confirmed that child victims should be afforded the same protection.

The SCA, however, at the time turned down an application by the CCL that accused, witnesses and victims under the age of 18, should continue to remain unidentified, even after they had turned 18.

The CCL was not happy with that ruling and asked the ConCourt to take another look at this issue. Six justices on Wednesday extended the
protection to child witnesses, accused and victims into adulthood, while two minority judgments differed on the issue relating to ongoing protection.

In the majority judgment, written by Justice Nonkosi Mhlantla, it was said that these issues require a delicate balancing act between various constitutional rights and interests. On the one hand, the best interest of children and their rights to dignity and privacy, and on the other hand, the rights to freedom of expression and the principle of open justice.

The issue was sparked by the then 18-year-old kidnap victim, identified at the time as  Zephany Nurse. The high court in Pretoria ruled that her identity may not be revealed after she turned 18, pending the outcome of the Constitutional challenge.

But Nurse  - Miche Solomon - meanwhile asked to lift the ban as a book was published containing her life story.

This issue first arose when some media outlets threatened to reveal to identify  her once she turned 18.

The media outlets argued that the protection that a child enjoyed as a matter of law would come to an abrupt end and disappear as soon as a child turned 18, which left Zephany and others in the same boat, exposed to having their real identity made known.

Justice  Mhlantla said the purpose of freedom of expression and open justice is compelling, but the serious harm caused to children involved in the criminal justice system  outweigh the minimal harm to open justice.

Justices Edwin Cameron and Johan Froneman, in a minority judgment, agreed that child victims should be protected, but they disagree with the finding that ongoing protection should be afforded to all these children after they had turned 18.

They said we all have a right to know what is happening in our world. 

“We should be able to know, because knowledge affords options, invites challenges and empowers our human capacities. Governmental power should not be exercised to leave us in ignorance, for that infringes the dignity afforded to our condition as humans.”

They also said the principle of open justice  requires that when justice is administered in our name, we should know what is done in our name.

“Secret court proceedings, unnamed witnesses, shrouded documents: these are anathema to the judicial process. Apartheid taught us hard lessons in not compromising the elements of legal process, among which naming witnesses and accused are key,” they said.

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