The Lifelong Anonymity of Child Victims, Witnesses and Accused In Criminal Proceedings
Section 154(3) of the Criminal Procedure Act
The Constitutional Court handed down judgment on 4 December 2019 regarding the application concerning the scope of protection provided by section 154(3) of the Criminal Procedure Act 51 of 1977 (CPA). This provision deals with the anonymity of child victims, witnesses and accused in criminal proceedings.
Section 154(3) of the CPA prohibits the media from publishing any information, which reveals or may reveal the identity of an accused or a witness at or in criminal proceedings if they are under the age of 18. This is unless the court orders that the publication would be just and equitable. Any violation of this section carries with it a criminal sanction of imprisonment of up to five years, a fine or both. This section, however, does not provide the same protection for victims in criminal proceedings.
Arbitrary differentiation between child accused/witnesses and child victims
The Constitutional Court held that because only child accused and child witnesses at criminal proceedings were protected from their identities being published and there is no similar protection for child victims, there was a clear void in the law. The Constitutional Court further held that the exclusion of child victims in section 154(3) limited the right to equality, as it amounted to an arbitrary differentiation. This means that child victims were not offered equal protection and benefit of the law. Furthermore, this void in section 154(3) ran contrary to the best interest of children and their rights to privacy and dignity. The Constitutional Court confirmed the declaration of invalidity.
Protection of children
The Constitutional Court held that the overarching purpose of section 154(3) of the CPA is child protection, more specifically, protection from the potentially harmful effects of publication of their names and identities as a result of being implicated in criminal proceedings.
In respect of the issue of ongoing protection, the best interests of the child principle merged with the rights to dignity and privacy, to warrant ongoing protection for child participants into adulthood. The position is unclear whether the media may publish a child victim’s identity prior to criminal proceedings commencing.
The lifelong protection stands unless, once an adult, that individual consents to the publication of their identity. Alternatively, if the consent is refused, a competent court may be approach by the media to request an upliftment of the publication ban.