Centre for Child Law Heads of Argument Child Identiity Case

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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case no: 23871/15
In 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

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TABLE OF CONTENTS
OVERVIEW..........................................................................................................................3
The 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.................................................. 11
Legislative framework...................................................................................................... 11
The evidence of the individuals affected ...................................................................... 13
Expert evidence on the harms of identification ........................................................... 27
PART 2: THE RIGHTS AT STAKE .............................................................................. 39
The 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..................................... 57
The 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................................................................................................ 99
The 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

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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?

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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 18th 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.
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.

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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.
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
3
FA, p 41, para 74. See in particular Annexure AMS 17, p 151.

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protections of section 154(3) of the CPA merely because they do not testify at
trial. They therefore seek:
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.

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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 18.8
12.2 Even in respect of the alternative constitutional challenges, the Minister
does not oppose these and instead abides them.9
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.10
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.
8
Minister’s Answering Affidavit (“Minister’s AA”), pp 781 – 788, paras 3, 5.
9
Ibid, paras 4, 6.
10
See FA, p 16 – 18, paras 11 – 13 for a list of publications owned by the media respondents.

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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 restrictions11 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
11
Particularly section 63(5) of the Child Justice Act 75 of 2008.

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in a specific case, it is the media that must do so. The 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 18.12
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.13
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 oppositionto 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
12
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.
13
Media Respondents’ Answering Affidavit (“AA”), pp 507 – 508, paras 88 – 90.

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countervailing interests because it largely disregards the interests of
children.
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.

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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

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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.

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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.14
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.15
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 risk
of being identified. In what follows, we briefly summarise their experiences.
14
Founding affidavit (“FA”), p 25, paras 26 and p 33, para 52.
15
Ibid, p25, para 27.

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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.16
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.17
35 At the time of her discovery, KL was 17 years of age.18 Media reports
contained suggestions that the media was prohibited from publishing any
information regarding KL’s identity but that the prohibition would fall away
when she turned 18 at the end of April 2015.19
16
Ibid, p33, para 53-54.
17
Ibid, p 34, para 54-57.
18
Ibid, p 26, para 33.
19
Ibid, p 27, paras 34.1-35.

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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.20
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.21
38 Despite obtaining an interim court order in these proceedings to protect her
anonymity,22 KL has still faced constant threats of being identified:
38.1 In July 2015, KL’slegal 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.23
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
20
KL’s affidavit, Annexure AMS 1, pp 63-64, paras 20 – 24.
21
FA, p 34 -37, para 57-63.
22
SFA, p 259, Annexure AMS 24.
23
Reply, pp 805 – 807, para 34.5; Annexure AMS 40 – 41, pp 925 – 927.

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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.24
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.25
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.26 A number of other publications
picked up and reported on the New Age story27 and at least two also
included the name of KL’s aunt in their articles.28
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.29
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
24
Reply, pp 812 – 813, para 43.2.; Annexure AMS 46, pp 934 – 937.
25
Reply, p 812, para 43.1.
26
Supplementary affidavit, pp 972-3, para 8; Annexure SA3, pp 982-984.
27
Annexure SA8, pp 993-4
28
Annexure SA9, p 995 and Annexure SA12, p 1001-2.
29
KL’s affidavit, pp 62 – 64, paras 18 – 24.

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by Ms Lena Goosen, the social worker who has worked most closely
with KL.30
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.31 The media
respondents incorrectly assume that their invasion of MVB’s privacy has
assisted her healing process.32
42.1 MVB’s court-appointed curator, Advocate Louise Buikman SC, provides
a direct rebuttal to these claims.
30
Dr Del Fabbro’s report, pp 382 – 383; Affidavit by Ms Goosen, pp 945 – 949.
31
Answering affidavit, p483 para 52.
32
AA, pp 483,486, 502, paras 52, 53.3, 81.

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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.33
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.34
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.35
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.36
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.
33
Advocate Buikman SC’s Affidavit, p 881, para 34.
34
Ibid, pp 882, paras 35.
35
Ibid, p 870 para 7; para 9.1.
36
Ibid, Annexure LB 2, pp 896 – 898.

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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.37
45.2 These media reports included salacious gossip about MVB’s alleged
relationship with a young man, with no possible public interest value.38
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.39
47 In light of these experiences, MVB and other child victims in her position
require the protection of section 154(3).
37
Ibid, pp 875 – 876, paras 19 – 22.
38
Ibid, pp 877 – 878, para 25 – 28, Annexure LB 10, pp 923 – 924.
39
Ibid, pp 879 – 882, paras 32 – 37.

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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.40
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.41
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.42
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.43
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
40
SFA, pp 206 – 207, paras 33, 35.
41
Media 24 v National Prosecuting Authority: In Re S v Mahlangu 2011 (2) SACR 321 (GNP).
42
SFA, p 208, para 38.
43

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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.44
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.45 The media
respondents deny that he was exposed to any danger,46 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)47 and the fact that an
effigy of his co-accused was hung from a tree on the day of sentencing.48
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.49
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.
44
SFA, pp 208 – 209, paras 41 – 42.
45
Ibid, p 209, para 42 – 43.
46
AA, pp 536 – 537, para 144.
47
48
49
Ibid, p 209,para 44. The media respondents denythis,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.

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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.50
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.51
56 After DS turned 18, various media houses published DS’s identity and posted
pictures of DS on their websites.52 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.53
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.54
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.
50
51
52
DS’s affidavit, p 310, para 11 (English translation).
53
54
Ibid, pp 312-313, para 22-29.

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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.55
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.56
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.57
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.58
55
MO’s affidavit, p 452, para 7.
56
Ibid, pp 452 -453, paras 7-9.
57
Ibid, pp 453- 454, paras 10-12.
58
Ibid, pp 454-455, paras 17-19.

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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.
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.59
59
SFA, p 216, para 62-63.

25
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.
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.60
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
60
P’s affidavit, pp 331-332, para 10-15.

26
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”.61
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.62
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.63
65.1 X was meant to testify at the trial, however the accused pleaded guilty
and X was spared the ordeal of testifying.64
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.65
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.
61
Ibid, p 333, para 20-24.
62
Supporting affidavit by Joan Van Niekerk, p 344-345 para 20.2 -20.5.
63
X’s affidavit, p 351, para 2-3.
64
65
Ibid, p 352, paras 9 – 12.

27
She explains how anonymity allowed her to transition into adulthood
and assisted in her process of healing.66
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.67
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.68
66
Ibid, pp 353 – 354, paras 13 – 14, 20-22.
67
Supporting affidavit by Joan Van Niekerk, p 345 paras 21.1 – 21.5.
68
Supporting affidavit by William Bird, p 394, para 11.2; Annexure WRB 2, pp 424 – 426.

28
67.2 In a 2013 study, MMA identified no less than 274 examples of stories
that violated the rights of children.69
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.
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.70
70.2 Dr Giada Del Fabbro, a psychologist with considerable clinical,
assessment and therapeutic experience in the field of child and
adolescent psychology.71
69
Further supporting affidavit by William Bird, p 964, para 7.
70
FA, SFA and Replying Affidavit.
71
Report by Dr Del Fabbro, Annexure AMS 37, pp 370 – 388; Annexure AMS 50, pp 950 – 954.

29
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.72
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.73
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:
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.74
72
Supporting affidavit by Ms Van Niekerk, Annexure AMS 34, pp 335 – 348.
73
Supporting affidavit by Ms Smit, Annexure AMS 35, pp 356 – 369.
74
Dr Del Fabbro’s report, p 379, para 25.

30
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.75
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 acutely. As a result,
crime leaves children with deep psychological scars that can remain
throughout their adult lives.76
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 generallyunderstood is that the offence committedby 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.”77
75
Ibid, pp 379 – 380, at paras 27 – 33.
76
SFA, pp 223, para 86; Dr Del Fabbro’s report, pp 373 – 374, paras 6 – 12.
77
Affidavit by Ms Smit, p 360, para 12.

31
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.
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.

32
77.5 As a result, the adult may be confronted with the story again and again,
wearing down their defences.78
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”79
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.80
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”.81
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
78
Dr Del Fabbro’s report, p 380, paras 34 – 39. SFA, p 224 – 225, para 90.
79
80
SFA, pp 226 – 227, paras 94 – 96; Dr Del Fabbro’s report, pp 374 – 375, paras 13 – 14.
81
See: S v Saayman 2008 (1) SACR 393 (E).

33
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.
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

34
parents suffered as a result of her disappearance while she herself was
living a normal life.82
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.83
84 All of the individuals who have provided affidavits express anxiety about the
stigmatisation that results from public identification:
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”.84
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’.85 She also says that she
does not want her children to see her labelled as being the “killer girl”.86
82
Dr Del Fabbro’s report, pp 382 – 383, para 44 – 53; confirmed in the affidavit of Leana Goosen, pp 945 –
949.
83
SFA, pp 228 – 229, paras 97 – 99.
84
KL’s affidavit, p 63, para 19.
85
P’s affidavit, p 334, para 29.
86

35
84.3 Similarly DS, does not want to forever be known as “the Griekwastad
murderer”.87
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”.88
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.
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.89
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.90
87
DS’s translated affidavit, p 310, para 9
88
KL’s affidavit, p 63, para 20.
89
SFA, pp 229 – 231, paras 100 – 107.
90

36
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.91
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 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.”92
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.
91
Ibid, p 381, paras 40 – 43.
92
X’s affidavit, p 354, paras 20 – 21.

37
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;93
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.”94
91.3 They also admit that victims of sexual offences and child abuse would
suffer severe harms if identified by the media.95
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”.96
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
93
AA, pp 541, para 149.1.
94
AA, p 513, para 102.
95
AA, p 482, para 49.
96
AA, p 481, para 45.

38
with no expertise in this area – she is a legal editor of the Sunday Times97 –
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.98
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:
“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.”99
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.
97
AA, p 462, para 2. The deponent is a legal editor of the Sunday Times.
98
Supporting affidavit of Dr Del Fabbro, pp 951 – 953, paras 6 – 9; Reply, p 815, para 48.2.
99
Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 (2) SA 168
(CC) at para 96.

39
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.”
101 Section 28(2) is both a principle and a self-standing right:

40
“[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.”100
102 Paramountcy requires that children’s interests are to be afforded the “highest
value”,101 meaning that their interests are “more important than anything else”
albeit that “everything else is [not] unimportant.”102
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.”103
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 children
100
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;
101
S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) at para 42.
102
Centre for Child Lawv Minister of Justice and Constitutional Developmentand Others 2009 (6) SA 632 (CC)
at para 29 (“Centre for Child Law”).
103
Ibid at paras 26-9 (emphasis added)

41
merit special protection through legislation that guards and
enforces their rights and liberties.” 104
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:105
"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."106
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.”107
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”.
104
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)
105
S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC).
106
Ibid at para 20.
107
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.

42
106.1 This principle provides that the protection afforded by the section 28(2)
right does not necessarily terminate when a child turns 18.
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,108 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."109
(Emphasis added)
108
J v National Director of Public Prosecutions 2014 (2) SACR 1 (CC).
109
Ibid at para 43.

43
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.
111 In Centre for Child Law110 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
misdeedmight be too harsh because they are not yet adults. Hence
we afford children some leeway of hope and possibility.”111
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:
110
Centre for Child Lawv Minister of Justice and Constitutional Developmentand Others 2009 (6) SA 632 (CC).
See also Mpofu v Minister for Justice and Constitutional Developmentand Others 2013 (2) SACR 407 (CC).
111
Ibid at para 28.

44
113.1 As the Constitutional Court has recognised, the consequences of
childhood experiences and conduct that are felt in adulthood tend to be
more severe, because of the greater physical and psychological
vulnerability of the child.112
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.113
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 CPAwhen 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.
112
Ibid at paras 26 – 27.
113
Ibid at para 27.

45
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.”114
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.115
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.”116
(Emphasis added)
114
Bernstein and Others v Bester NO and Others 1996 (2) SA 751 (CC) at para 77.
115
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),albeitwithoutdeciding whether itremains
appropriate to the constitutional context.
116
NM v Smith ibid at para 132 (emphasis added).

46
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.117
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,118 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 remaintarred
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.”119
122 Similarly, in Toronto Star Newspaper Ltd v Ontario,120 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
117
Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development
2014 (2) SA 168 (CC) at para 56.
118
J v National Director of Public Prosecutions 2014 (2) SACR 1 (CC).
119
Ibid at para 44.
120
Toronto Star Newspaper Ltd v Ontario 2012 ONCJ 27 (CanLII).

47
“at the heart of liberty in a modern state” (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.”121
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.122
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.”123
121
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.
122
Sarrahwitz v Maritz NO and Another 2015 (4) SA 491 (CC) at para 54.
123
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).

48
124 The Constitutional Court’s recent judgment in Sarrahwitz v Maritz NO and
Another124 confirms that where a law seeks to protect a vulnerable class of
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.125 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.
124
Sarrahwitz v Maritz NO and Another 2015 (4) SA 491 (CC) at para 49.
125
S v Zuma and Others 1995 (2) SA 642 (CC) at para 16.

49
128 The relationship between anonymity protections, media freedom, and open
justice have already been analysed in detail by the South African
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 pseudonymswould not have rendered the
book less authentic”.126
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,127 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
126
NM v Smith 2007 (5) SA 250 (CC) at paras 45-46 (emphasis added)
127
Johncom Media Investments Limited v M 2009 (4) SA 7 (CC).

50
proceedings, holding that this would protect children’s rights while
preserving media freedom.
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.”128
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.”129
128
Ibid at para 30.
129
Ibid at para 45.

51
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.
“[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.”130
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.131
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.132 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
130
Ibid at para 42.
131
Ibid at para 43.
132 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).

52
automatic and indefinite anonymity protections which may only be lifted with
the permission of the court:
“No person may, without the permissionof a court, in any manner publish
any information relating to the proceedings of a children’s court 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.133
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.134
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.
133
See the examples provided at paras 188 – 10 and paras Error! Reference source not found. – Error!
ference source not found. below.
134
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.

53
137 In Canadian Newspapers Co v Canada (Attorney General)135 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:
"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.”136 (Emphasis added)
138 In FN (RE)137 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."138
“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 publishbecause 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”.139
139 In AB v Bragg,140 the Canadian Supreme Court applied these principles to a
civil case involving a child who was the victim of online bullying. The Court
135
Canadian Newspapers Co v Canada (Attorney General) [1988] 2 SCR 122.
136
Ibid at 133.
137
[2000] 1 SCR 880.
138
Ibid at para 10.
139
Ibid at para 12.
140
[2012] 2 SCR 567.

54
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.141
140 By contrast, the respondents rely on certain dicta in the UK Supreme Court’s
2010 decision in In re Guardian News Media Ltd.142 There the UK Supreme
Court suggested that using names in media reports often has value.143 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.144
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,145 which addressed the need for
141
Ibid at para 28.
142
In re Guardian News Media Ltd [2010] UKSC 1.
143
See the quotations in AA, pp 504 – 505, para 84.
144
See paragraphs 0 - 226 below.
145
JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96.

55
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:
“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.”146
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.147
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.
146
Ibid at para 29.
147
Ibid at paras 7 – 16.

56
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.

57
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.

58
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.148
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.149
148
See paragraphs 71 - 90 above.
149
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.

59
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.”150
151 The Supreme Court of Canada has also emphasised this need for anonymity
protections. In AB v Bragg,151 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.””152
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.”153
150
Supporting affidavit by Ms Van Niekerk, p 344-345, para 12.
151
[2012] 2 SCR 567.
152
Ibid at para 26.
153
Ibid at para 25.

60
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”154
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.155
155.2 Such coverage impedes a child victims’ ability to return to their
communities without fear of intrusive media coverage. As MVB’s
154
155
Affidavit of Louse Buikman SC, p 873, para 14; Annexure LB 2, pp 896 -

61
curator ad litem points out, “anonymity will allow her the best chance at
creating a normal life”.156
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.”157
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”.158
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.
156
Affidavit of Louise Buikman SC, p 882, para 37.
157
Report by Dr Del Fabbro, p 377, para 23.
158
Reply, p 812, para 43.2; Annexure AMS 46, pp 934 – 937.

62
156.4 KL also suspects that the media has been offering payment to her family
members in exchange for information about her.159
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.160 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
159
Reply, p 811, para 41.
160
AA, pp 482 – 483, paras 49, 51.

63
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.161
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:162
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.
161
Supporting affidavit of Dr Del Fabbro, pp 951 – 953, paras 6 – 9; Reply, p 815, para 48.2.
162
AA, pp 482 – 491, paras 49 – 57.

64
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 child.
However, it is important for the law to err on the side of caution by offering

65
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.163
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,
163
SFA, p 246, para 150.

66
including identifying information. It was only by chance that this
was discovered before publication.164
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.165
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 if the
164
Ibid, p 247 – 248, para 150.2; Annexure AMS 38, pp 389 – 390; Annexure AMS 40, p 925.
165
Ibid, pp 247 – 248, paras 150.3 – 150.6.

67
child is in the fortunate position of knowing that an application
is required.166
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.167
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.
166
SFA, p 247 – 248, para 150.
167
SFA, p 248, paras 150.7 – 150.9.

68
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
victims who do not testify at trial.168 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.
168
AA, pp 491 - , para 59 -

69
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.
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

70
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).
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:169
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.
169
AA, p 495, para 63.

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