Centre for Child Law and Others v Media 24 Limited and Others

1. Case Title & Citation

Case Title: Centre for Child Law and Others v Media 24 Limited and Others

Official Citation: ZACC 46

2. Court Name & Bench

Court Name: Constitutional Court of South Africa

Name of Judges: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J

Bench Type: Full Bench with majority (Mhlantla J) and partial dissenting judgments (Cameron J & Froneman J, Jafta J)

3. Date of Judgment

Exact Date: 4 December 2019

4. Parties Involved

Appellant(s):

Centre for Child Law (First Applicant)

KL (Second Applicant)

Childline South Africa (Third Applicant)

National Institute for Crime Prevention and the Reintegration of Offenders (Fourth Applicant)

Media Monitoring Africa Trust (Fifth Applicant)

• Respondent(s):

Media 24 Limited (First Respondent)

Independent Newspapers (Pty) Limited (Second Respondent)

Times Media Group Limited (Third Respondent)

Minister of Justice and Correctional Services (Fourth Respondent)

National Director of Public Prosecutions (Fifth Respondent)

5. Facts of the Case:

KL was abducted as a newborn and found 17 years later, drawing significant media attention. She was a possible, but not confirmed, witness in her abductor’s trial. With her 18th birthday approaching, concerns arose that Section 154(3) of the Criminal Procedure Act migCase: KLht not protect her identity, as she was nearly an adult and not a confirmed witness. Concerned about her privacy, KL and the Centre for Child Law requested that media outlets maintain her identity confidential. When this was not guaranteed, they urgently applied to the High Court. They wanted Section 154(3) to be interpreted to protect child victims and to extend this protection beyond age 18, or to have the section declared invalid if it failed to do so.

6. Issues Raised The Constitutional Court addressed two central legal questions:

• Scope of Protection for Child Victims: Whether Section 154(3) of the CPA prevents the media from disclosing the identity of children as victims of crimes in criminal proceedings (even if not testifying), and if not, whether this is constitutionally valid.
• Ongoing Anonymity Protection: Whether the protection afforded by Section 154(3) to child accused, witnesses, and victims ceases to operate once the child turns 18, and if so, whether this is constitutionally valid.

7. Arguments of the Parties

• Appellant(s) (Centre for Child Law and Others, supported by Minister & NDPP):

Child Victims: Argued that Section 154(3) either already applied to child victims or should be declared constitutionally invalid for their exclusion. They contended that the lack of protection for child victims infringes the right to equality (Section 9(1)) due to irrational differentiation, and the best interests of the child (Section 28(2)), dignity (Section 10), and privacy (Section 14). They stated that existing common law or statutory protections for child victims were inadequate and requiring them to seek interdicts was unrealistic and inconsistent with the Constitution.

Ongoing Protection: Submitted that the protection afforded by Section 154(3) should not cease when a child turns 18, as the “life-long consequences” of childhood experiences implicate children’s rights. Expert evidence highlighted the severe psychological and emotional harm, re-traumatisation, and hindrance to rehabilitation and reintegration caused by the threat of identification into adulthood, including the “ticking-clock effect” on trials. They argued that less restrictive means exist for the media to report without disclosing identities.

• Respondent(s)  (Media Respondents):

Child Victims: Opposed extending Section 154(3) to child victims, arguing that the provision’s language and purpose only protect child accused or witnesses during criminal proceedings while they are under 18. They asserted that existing provisions in the CPA and Child Justice Act provided sufficient anonymity protections for child victims.

Ongoing Protection: Contended that there was no constitutional basis for indefinite protection after a child turns 18. They argued that such broad protection would unjustifiably limit the principles of open justice and freedom of expression (Section 16). They also cautioned against judicial overreach in extending a criminal sanction through a reading-in.

8. Judgment : The Constitutional Court issued the following order:

The Supreme Court of Appeal’s declaration that Section 154(3) of the CPA is constitutionally invalid to the extent that it does not protect the identity of children as victims of crimes in criminal proceedings is confirmed.

Leave to appeal against the Supreme Court of Appeal’s dismissal of the challenge to the constitutionality of Section 154(3) on the issue of ongoing protection is granted.

The appeal is upheld.

Section 154(3) of the CPA is declared constitutionally invalid to the extent that the protection afforded to children does not extend beyond their reaching the age of 18 years.

This declaration of constitutional invalidity is suspended for 24 months to allow Parliament to correct the defect.

Pending Parliament’s action, Section 154(3) of the CPA is to read as follows (with additions underlined for clarity): “No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused person under the age of eighteen years or of a witness or of a victim at or in criminal proceedings who is under the age of eighteen years: Provided that the presiding judge or judicial officer may authorise 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 person. (3A) An accused person, a witness or a victim referred to in subsection 3 does not forfeit the protections afforded by that subsection upon reaching the age of eighteen years, but may consent to the publication of their identity after reaching the age of eighteen years, or if consent is refused their identity may be published at the discretion of a competent court.

If Parliament fails to remedy the defects within 24 months, paragraph 6 of the order shall continue to apply.

Each party is to pay its own costs.

9. Legal Reasoning / Ratio Decidendi

Majority Judgment (Mhlantla J, with Mogoeng CJ, Khampepe J, Ledwaba AJ, Madlanga J, Nicholls AJ and Theron J concurring)

• Lack of Protection for Child Victims: The Court found a clear lacuna in Section 154(3) regarding anonymity protection for child victims not called as witnesses, noting that existing common law and statutory mechanisms (e.g., CJA, other CPA provisions) were insufficient or inaccessible.
• Infringement of Constitutional Rights (Child Victims):

Equality (Section 9(1)): Section 154(3) creates an irrational differentiation by protecting child accused and witnesses but not child victims, which is not rationally connected to the legitimate government purpose of child protection. This arbitrary distinction breaches the right to equality.

Best Interests of the Child (Section 28(2)): The lack of protection for child victims runs contrary to their best interests, as public identification exposes them to significant psychological harm, shame, and can deter reporting. It is unreasonable and impractical to place the burden of seeking interdicts on vulnerable child victims.

Privacy (Section 14) and Dignity (Section 10): The non-protection of child victims infringes their rights to privacy and dignity. Being a child victim relates to one’s “inner sanctum” and identity formation, making the expectation of privacy reasonable. Not having control over the disclosure of traumatic events strikes at the core of a child’s dignity.

• Justification Analysis (Child Victims): The limitation of these rights is not reasonable and justifiable under Section 36 of the Constitution. The Court emphasised that while open justice and freedom of expression are vital, less restrictive means exist for the media to report fully and accurately without disclosing a child victim’s identity. The importance of public interest does not equate to the public’s curiosity.
• Ongoing Anonymity Protection: The Court held that the failure of Section 154(3) to provide ongoing protection for child accused, witnesses, and victims after they turn 18 infringes their rights to dignity, privacy, and the best interests of the child.

Best Interests of the Child (Section 28(2)): A child’s vulnerability and need for protection do not end at 18. The anticipation of identification causes harm, undermining healing, rehabilitation, and reintegration, and potentially compromising the criminal justice system (“ticking-clock effect”).

Broader Considerations: Ongoing protection supports restorative justice for child offenders, helps counter stigma associated with victimhood or criminality, and promotes individual agency by allowing individuals to control their narrative of past traumatic events.

• Justification Analysis (Ongoing Protection): The limitation of open justice and freedom of expression by ongoing protection is considered minimal compared to the serious harms to child participants. Identifying the child is not essential for advancing these principles, and a default position (subject to consent or court discretion) provides a less restrictive means. The Court highlighted that the Minister of Justice and Correctional Services and the National Director of Public Prosecutions supported the applicants’ stance on ongoing protection, which eased concerns about judicial overreach.

Partial Dissenting Judgment (Cameron J and Froneman J)

• Agreed with the majority that Section 154(3) is constitutionally invalid for failing to protect child victims.
• Disagreed on the issue of ongoing protection, arguing that the default position should not be indefinite anonymity for adults who were formerly child participants. They prioritised the right of the public to know and the principle of open justice, stating that secrecy is anathema to the judicial process.
• They expressed concern that indefinite anonymisation could inadvertently perpetuate stigma and shame (e.g., related to HIV/AIDS), and that the courts already possess wide powers to grant anonymity when necessary, with Parliament able to introduce further statutory protections.

Partial Dissenting Judgment (Jafta J)

• Agreed with the majority that Section 154(3) is invalid due to the differentiation of child victims, breaching Section 9(1) of the Constitution.
• Disagreed with the conclusion that Section 154(3) violates the privacy and dignity rights of children or the right guaranteed by Section 28(2) of the Constitution (best interests of the child). He reasoned that the section’s purpose is to protect children, and therefore, its enforcement cannot harm the children it was enacted to protect.
• Argued that the rights in Section 28 are conferred on children only (persons under 18) and cannot be extended to adults. He stated that a legislative omission (the lack of ongoing protection for adults) does not, in itself, constitute a limitation of rights such as dignity or privacy, as these rights are not contingent upon legislation for their enjoyment.
• Concluded that the need for extending protection to adults should be referred to Parliament for law reform, as the courts’ role is to strike down inconsistent laws, not to create new legislative obligations based on perceived omissions where no right is directly limited by the existing text.

10. Conclusion:

The Court’s decision strengthens constitutional protections for children in South Africa’s criminal juthe stigma associated with publishing identities, while allowing Parliament time to enact comprehensive reforms. This approach promotes individual agency and aims to reduce stigma for children involved in criminal proceedings.