Centre for Child Law and Others v Media 24 Limited and Others (871/2017) [2018] ZASCA 140; 2018 (2) SACR 696 (SCA); [2018] 4 All SA 615 (SCA) (28 September 2018)

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[2018] ZASCA 140
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Centre for Child Law and Others v Media 24 Limited and Others (871/2017) [2018] ZASCA 140; 2018 (2) SACR 696 (SCA); [2018] 4 All SA 615 (SCA) (28 September 2018)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 871/2017
In
the matter between:
CENTRE
FOR CHILD
LAW
FIRST
APPELLANT
KL
SECOND
APPELLANT
CHILD
LINE SOUTH
AFRICA
THIRD
APPELLANT
NATIONAL
INSTITUTE FOR CRIME PREVENTION
AND
THE REINTEGRATION OF OFFENDERS
FOURTH
APPELLANT
MEDIA
MONITORING AFRICA
TRUST
FIFTH
APPELLANT
and
MEDIA
24
LIMITED
FIRST
RESPONDENT
INDEPENDENT
NEWSPAPERS (PTY) LTD
SECOND
RESPONDENT
TIMES
MEDIA GROUP
LIMITED
THIRD
RESPONDENT
MINISTER
OF JUSTICE
AND
CORRECTIONAL
SERVICES
FOURTH
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
FIFTH
RESPONDENT
Neutral
citation:
Centre
for Child Law & others v Media 24 Limited & others
(871/17)
[2018] ZASCA 140
(28 September 2018)
Coram:
Maya P
and Willis, Swain, Van der Merwe and Mocumie JJA
Heard:
7 September 2018
Delivered:
28
September 2018
Summary:
Section 154(3)
of the
Criminal Procedure Act 51 of 1977
– declaration of
constitutional invalidity because of a failure to protect the
anonymity of children as victims of crime
at criminal proceedings.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Hughes J sitting as court of
first instance):
1 The appeal is
dismissed.
2 The cross-appeal is
upheld to the extent that para 1 of the order of the court a quo is
set aside, and replaced with the following
orders:
‘
(1)(a)  It is
declared that the provisions of
s 154
(3) of the
Criminal Procedure
Act 51 of 1977
are constitutionally invalid to the extent that they
do not protect the anonymity of children as victims of crimes at
criminal
proceedings.
(b) Parliament is to
remedy the aforesaid constitutional invalidity within 24 months of
the date of this order.
(c) Pending Parliament's
remedying of the aforesaid constitutional invalidity,
s 154(3)
of the
Criminal Procedure Act 51 of 1977
is deemed to read as follows:
'No person shall publish
in any manner whatever any information which reveals or may reveal
the identity of an accused under the
age of 18 years
or of a
victim
or of a witness at criminal proceedings who is under the
age of 18 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 particular person.'
(d) In
the event that Parliament does not remedy the aforesaid
constitutional invalidity within 24 months of this order, paragraph

(c) shall become final.
(e) The orders of
constitutional invalidity are referred to the Constitutional Court
for confirmation.’
3 The date of the order
of constitutional invalidity will be the date of this order.
4 The appellants and the
respondents are ordered to pay their own costs in respect of the
appeal and cross-appeal.
JUDGMENT
Swain
JA
(Maya
P and Van der Merwe JA concurring):
[1]
This appeal originates in an order granted in the Gauteng Division of
the High Court, Pretoria, on 21 April 2015 in which an
interim
interdict was granted to protect the anonymity of the second
appellant, one KL. On the return day of the order the appellants

sought declaratory orders in the following terms:
(a) Declaring that the
protection of anonymity afforded by s 154(3) of the Criminal
Procedure Act 51 of 1977 (the CPA) applied to
victims of a crime who
were under the age of 18 years;
(b) In the alternative,
an order was sought declaring this section of the CPA
unconstitutional and invalid to the extent that it
failed to confer
protection on victims of a crime who were under the age of 18 years;
(c) Declaring that
children subject to this section of the CPA do not forfeit the
protection offered by the section upon reaching
the age of 18 years;
(d) In the alternative,
an order was sought declaring this section of the CPA
unconstitutional and invalid to the extent that children
subject to
the section forfeit the protection afforded by it upon reaching the
age of 18 years.
[2]
The court a quo granted an order declaring that the protection
afforded by s 154(3) of the CPA applied to victims of crime who
were
under the age of 18 years. It, however, also held that the section
does not continue to protect child victims, witnesses and
accused
after they turn 18 years and dismissed the appellants’
alternative constitutional challenges. The court a quo thereafter

granted to the appellants leave to appeal and to the respondents
leave to cross-appeal, against the orders granted.
[3]
To place the appeal in context, the circumstances of KL that required
her anonymity to be protected, were that she was abducted
from
hospital on 30 April 1997, when she was two days old. She was 'found'
in February 2015, when she was 17 years old. Her case
and the ensuing
criminal trial have been the subject of intense media scrutiny, both
in South Africa and abroad.
[4]
The provisions of s 154(3) of the CPA provide as follows:
'No person shall
publish in any manner whatever any information which reveals or may
reveal the identity of an accused under the
age of 18 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
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 particular person.'
[5]
The appellants therefore sought two extensions to the provisions of
the section:
(a) The first was to
extend the publication ban to the identification of any child victim
of crime and;
(b)
The second was to extend the duration of the ban on the
identification of children indefinitely into adulthood.
[6]
The appellants and the first, second and third respondents (the media
respondents), agree that the protection of children's
anonymity
requires a case-by-case determination by a court. However, they do
not agree on two central issues in the appeal. The
first issue is
whether there should be any limitation of the media’s right to
impart information concerning the identity
of child victims (the
victim extension) and children who forfeit the protection of their
anonymity on attaining the age of 18 years
(the adult extension). If
there is to be a limitation, the second issue that arises is the
nature and extent of the limitation,
before a court may determine
whether anonymity or publicity is in the best interests of a child in
a particular case.
[7]
As set out above, the appellants sought as primary relief declaratory
orders based upon an interpretation of the section. It
was submitted
that the section properly interpreted protected child victims and
continued to protect them after they had attained
their majority.
Based upon a 'purposive manner of interpretation' of the section, the
court a quo declared that the protection
it offered applied to
victims of crime who were under the age of 18 years.
[8]
The interpretation advanced by the appellants as regards the victim
extension, was based upon the submission that the section
gives
expression to the State's positive duties to protect children's
rights and to secure their best interests in the criminal
process.
Accordingly, when interpreted in the light of this protective
purpose, the phrase 'witness at criminal proceedings' in
the section
was reasonably capable of an interpretation that applied to all child
victims of crime. It was submitted that there
was no basis for
thinking that Parliament wanted, or was prepared to allow, such
arbitrary treatment of vulnerable child victims.
The fourth
respondent, the Minister of Justice and Correctional Services,
confirmed this was never the intention and that the section
should be
interpreted as applying to all child victims.
[9]
The media respondents’ answer was that the proper approach to
statutory interpretation, was to consider from the outset
the context
and the language together, in the light of the Constitution. Since
the violation of the section carried a criminal
sanction, its
interpretation had to be informed by the presumption that it ought to
be interpreted strictly in favour of individual
liberty. The language
did not include a victim who was not a witness in the criminal
proceedings. The purpose was to protect children
who participated in
criminal proceedings against the disclosure of their identities. On
this basis the appellant's wider interpretation
of the section was
not correct.
[10]
The appellants’ submissions as regards the adult extension,
were that on a proper interpretation of the section, children
who
were subject to its protection did not lose this protection when they
turned 18. This was because the section had to be interpreted
in line
with what was described as 'the principle of ongoing protection'.
This principle was said to be one in which 'childhood
actions or
experiences that are felt in adulthood are also the proper concern of
s 28(2) of the Constitution'.
According
to the appellants an interpretation that ensured ongoing protection,
better promoted s 28(2) and protected child victims,
witnesses,
accused and offenders from the severe harm of identification.
[11]
The media respondents’ answer was that on a proper
interpretation of the section it only prohibited publication of the

identity of an accused or witness in criminal proceedings, who at the
date of publication was under the age of 18 years. This was
the
ordinary meaning of the prohibition, the purpose being to protect
children against the glare of publicity during their participation
in
criminal proceedings. In addition, there was no legal basis for the
so-called 'principle of ongoing protection'.
[12]
In my view, the language of the section is unambiguous and the
interpretation contended for by the appellants, whether in respect
of
the victim extension or adult extension, is unduly strained. The
section is an exception to the open justice rule and by virtue
of the
fact that it carries a criminal sanction, it must be interpreted in
favour of individual liberty. This is particularly so
where the right
to freedom of expression is implicated. The court a quo accordingly
erred in the interpretation it placed upon
the section, in respect of
the victim extension. Indeed, counsel for the appellants did not
pursue this ground of relief with any
vigour.
[13]
I turn to consider the alternative submission by the appellants. This
was that the section must be declared unconstitutional
and invalid to
the extent that it does not afford protection to child victims, and
because it does not afford ongoing protection
to children who are
protected by the section, but who forfeit this on attaining the age
of 18 years.
[14]
The extension of the anonymity protection for children, whether by
way of the victim extension or the adult extension, is in
conflict
with the rights to freedom of expression and freedom of the press and
other media, entrenched in s 16(1)
(a)
of the Constitution. It
is also in conflict with the open justice principle. The correct
approach to resolving a conflict of this
nature was dealt with in
Johncom Media Investments Ltd v M & others
[2009] ZACC 5
;
2009 (4) SA 7
(CC). At para 19 the following was stated:
'Section 16 of the Constitution
confers upon everyone the right to freedom of expression. The section
itself limits the right. This
does not, however, mean that the right
is insulated against the general limitation contemplated in s 36 of
the Constitution. Nor
does the Constitution accord hierarchical
precedence to any particular right entrenched in the Bill of Rights
over other rights
referred to therein.'
In
para 21 the following was added:
'Section 16 thus
defines the ordinary bounds of the right to freedom of expression.
But over and above that defined scope, there
may be limitations
placed on the right, provided that they meet the requirements of s 36
of the Constitution.'
[15]
For present purposes, I will refer to the right to freedom of
expression which includes freedom of the media, as well as the

principle of open justice, as the right of the media to impart
information. In determining whether the victim and adult extensions

to s 154(3) of the CPA, constitutionally violate the right of the
media to impart information, a two-stage test has to be applied.
This
was described in
Coetzee v Government of the Republic of South
Africa; Matiso & others v Commanding Officer, Port Elizabeth
Prison & others
[1995] ZACC 7
;
1995 (4) SA 631
(CC) para 9 in the following
terms:
'This Court has laid down that,
ordinarily, one adopts a two-stage approach for determining the
constitutionality of alleged violations
of rights in chap 3 of the
Constitution . . . If so, the second stage calls for a decision
whether the limitation can be justified
in terms of s 33(1) of the
Constitution.'
As
pointed out in
Johncom
para 22, although this case was concerned with the interim
Constitution, the final Constitution is structured in the same way
and requires the same approach.
[16]
The crucial issue is whether the limitation of the right of the media
to impart information, whether in terms of the victim
or adult
extensions to the section, are reasonable and justifiable in terms of
s 36 of the Constitution. The section provides as
follows:
'(1) The rights in the Bill of Rights
may be limited only in terms of law of general application to the
extent that the limitation
is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including –
(a)
the nature of the
right;
(b)
the importance of
the purpose of the limitation;
(c)
the nature and
extent of the limitation;
(d)
the relation
between the limitation and its purpose; and
(e)
less restrictive
means to achieve the purpose.
(2) Except as
provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights.'
[17]
In
Johncom
para 24, the enquiry envisaged by s 36 of the
Constitution was described in the following terms:
'The process of
determining whether a limitation is reasonable and justifiable within
the contemplation of s 36 involves the balancing
of competing
interests. It entails taking account of the considerations enumerated
in s 36. This process has been described as
a proportionality
analysis.'
[18]
In
National Coalition for Gay and Lesbian Equality & another v
Minister of Justice & others
1999 (1) SA 6
(CC) para 35, the
proportionality analysis was described in the following terms:
'The balancing of different interests
must still take place. On the one hand there is the right infringed;
its nature; its importance
in an open and democratic society based on
human dignity, equality and freedom;
and the nature and extent of
the limitation
. On the other hand there is the importance of the
purpose of the limitation. In the balancing process and in the
evaluation of
proportionality one is enjoined to consider the
relation between the limitation and its purpose
as well as the
existence of less restrictive means to achieve this purpose
.'
(Emphasis added.)
[19]
The proportionality analysis requires that the right of the media to
impart information in an open and democratic society based
on human
dignity, equality and freedom, be considered together with the nature
and extent of the limitation of this right and then
balanced against
the purpose of the limitation, which in the case of the adult
extension, is the protection of the anonymity of
children on reaching
the age of 18 years. Whether the purpose of the proposed limitation
may be achieved by less restrictive means,
also has to be considered.
An examination of the nature and extent of the limitation of the
media's right to impart information,
reveals that it is unlimited and
has no exceptions. As a result, according to the media respondents,
the following types of publications
will be prohibited:
(a) An autobiography
about someone who was a victim or witness of crime as a child, or was
a child offender, published in their
adulthood;
(b) News articles that
disclose the identity of adults who were child victims, and that
celebrate the recovery of victims from the
trauma of their
experiences as children; that publicise their stories as sources of
inspiration to others and that present them
as role-models and people
taking control of their lives;
(c) News articles that
celebrate the rehabilitation and reintegration of young offenders,
which may motivate and inspire others
to overcome adversity in their
own lives; and
(d)
News articles about the conviction and sentences of former child
accused, which draw attention to miscarriages of justice and

important social and political issues.
[20]
Willis JA in his judgement, recognises that difficulties lie in
casting any protection (and therefore the nature and extent
of any
limitation) with precision, and that vague generalities would be
inimical to the rule of law. In addition, he recognises
that it will
be difficult to strike an appropriate legislative balance in some
cases, but believes these problems may be overcome
by public debate
and by affording Parliament sufficient time to remedy the situation.
[21]
I disagree with the approach of Willis JA. Only once the
constitutional validity of s 154(3) of the CPA has been determined,

may Parliament be afforded the opportunity to remedy the situation.
Willis JA, however, relies upon certain dicta of Mogoeng CJ
in the
case of
My
Vote Counts NPC v Minister of Justice and Correctional Services &
another
[2018] ZACC 17
;
2018 (8) BCLR 893
(CC) as support for the proposition
that it is sufficient for this court to articulate the proposed
limitation on the right of
the media to impart information in broad
terms, but with sufficient clarity to give Parliament a fair sense of
what is required
of it. The justification he advances for this is
that the detailed formulation of the limitation of the right was best
left to
Parliament.
[22]
However, the remarks of the Chief Justice in
My
Vote Counts
were not uttered in the context of an
a
priori
determination of whether the Promotion of Access to Information Act 2
of 2000 (PAIA), was inconsistent with the Constitution and
invalid.
The complaint was that PAIA did not allow for the continuous and
systematic recordal and disclosure of information, as
to the private
funding of political parties. Having determined the constitutional
invalidity of PAIA in this respect, the Constitutional
Court then
ordered Parliament to amend the act to provide for the recordal,
preservation and facilitation of reasonable access
to information on
the private funding of political parties, within a period of 18
months. It was in the latter context that these
remarks were made.
Quite clearly, they do not absolve a court from its primary
responsibility of examining the nature and extent
of the limitation,
and taking this aspect into account as an essential part of the
proportionality analysis.
[23]
As regards whether the purpose of the proposed limitation may be
achieved by less restrictive means, the indeterminate nature
and
extent of the limitation, as well as the wide diversity of factual
situations to which it could be applied, precludes a meaningful

examination of this issue. The importance of the factual matrix, in
carrying out the proportionality analysis was described in
the
following terms in
Independent Newspapers (Pty) Ltd v Minister for
Intelligence Services: In Re Masetlha v President of the Republic of
South Africa
& another
2008 (5) SA 31
(CC) para 161:
'As in all
proportionality exercises, the factual matrix will be all-important,
and the court concerned will itself have to make
an order based on
its enquiry into the specific way in which constitutionally protected
interests interact with each other, and
particularly with the
intensity of their engagement.'
[24]
As part of the proportionality analysis, I turn to examine the right
of the media to impart information in an open and democratic
society
based on human dignity, equality and freedom. The importance of the
right to freedom of expression was described in
Islamic Unity
Convention v Independent Broadcasting Authority & others
[2002] ZACC 3
;
2002
(4) SA 294
(CC) para 27, in the following terms:
'Notwithstanding
the fact that the right to freedom of expression and speech has
always been recognised in the South African common
law, we have
recently emerged from a severely restrictive past where expression,
especially political and artistic expression,
was extensively
circumscribed by various legislative enactments. The restrictions
that were placed on expression were not only
a denial of democracy
itself, but also exacerbated the impact of the systemic violations of
other fundamental human rights in South
Africa. Those restrictions
would be incompatible with South Africa's present commitment to a
society based on a "constitutionally
protected culture of
openness and democracy and universal human rights for South Africans
of all ages, classes and colours".'
[25]
As observed in
Johncom
supra para 28, the limitation of the
right to freedom of expression not only affects the media but also
affects the right of members
of the public to receive information. In
Midi Television (Pty) Ltd t/a E-TV v Director of Public
Prosecutions (Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) para 6, the
following was stated:
'It is important to
bear in mind that the constitutional promise of a free press is not
one that is made for the protection of the
special interests of the
press. As pointed out by Anthony Lewis, in a passage that was cited
by Cameron J in
Holomisa
v Argus Newspapers Ltd
:
"Press exceptionalism – the idea that journalism has a
different and superior status in the Constitution – is
not only
an unconvincing but a dangerous doctrine." The constitutional
promise is made rather to serve the interest that all
citizens have
in the free flow of information, which is possible only if there is a
free press. To abridge the freedom of the press
is to abridge the
rights of all citizens and not merely the rights of the press
itself.'
[26]
Not only the right to freedom of expression is implicated by the
proposed adult extension, but also the open justice principle.
In
Independent Newspapers
paras 43 and 45-46, it was affirmed
that 'the default position is one of openness' and that:
'In each case, the court will have to
weigh the competing rights or interests carefully with the view to
ensuring that the limitation
it places on open justice is properly
tailored and proportionate to the end it seeks to attain. In the end,
the contours of our
constitutional rights are shaped by the
justifiable limitation that the context presents and the law permits
. . .
At the end of the
day, a court is obliged to have regard to all factual matter and
factors before it in order to decide whether
the limitation on the
right to open courtrooms passes constitutional muster.'
[27]
It is clear that the adult extension severely restricts the right of
the media to impart information and infringes the open
justice
principle. In the absence of any limitation on the nature and extent
of the adult extension, the relief sought by the appellants
is
overbroad and does not strike an appropriate balance between the
rights and interests involved. Accordingly, the proposed limitation

on the right of the media to impart information is neither reasonable
nor justifiable, in terms of s 36 of the Constitution. The

constitutional challenge to the provisions of s 154(3) of the CPA on
this basis, must accordingly fail.
[28]
I turn to consider the
victim extension. The constitutional challenge to s 154(3) of the
CPA, is that the section does not extend
anonymity protection to
children under the age of 18 years, who are the victims of a crime.
The nature and extent of the limitation
on the right of the media to
impart information is clear. It is limited to prohibiting the
publication of the identity of a victim
at criminal proceedings, who
is under the age of 18 years. The purpose of the limitation, as in
the cases of an accused and a witness
under the age of 18 years, is
to protect children at criminal proceedings from the glare of
publicity. The reason for this is self-evident.
[29]
There is, however, an additional purpose to the limitation. That is
to ensure that s 154(3) of the CPA complies with the equality

provisions of s 9 of the Constitution. Although the section grants
anonymity to an accused and a witness at criminal proceedings
who are
under the age of 18 years, it offers no protection at all to the
victim at criminal proceedings, who is also under the
age of 18
years. The exclusion of child victims from the provisions of s 154(3)
of the CPA, is irrational and in breach of s 9(1)
of the
Constitution, which guarantees the right to equal protection and
benefit of the law to everyone. The denial of equal protection
to
child victims, who are equally vulnerable, cannot be justified.
[30]
The
importance of the right of the media to impart information and the
nature and extent of the limitation of this right, when balanced

against the dual purpose of the limitation of this right, leads to
the conclusion
that
the limitation on the right of the media in this instance, is
reasonable and justifiable in terms of s 36 of the Constitution.
The
constitutional challenge to s 154(3) of the CPA, on the basis that it
does not extend anonymity protection to children under
the age of 18
years who are the victims of a crime, must accordingly succeed.
[31]
In reaching these conclusions I have not relied upon foreign
jurisprudence to which we were referred, by the parties. In
City
of Cape Town v South African National Roads Authority Limited &
others
[2015] ZASCA 58
;
2015 (3) SA 386
(SCA) para 31 the
following was stated:
'A court attempting to transplant a
rule from a foreign jurisdiction should of necessity have regard to
the differing constitutional
contexts between that country and this.
The Constitutional Court recently affirmed that the following
principles apply in considering
the use of foreign law:
"
(c)
The similarities and differences between the constitutional
dispensation in other jurisdictions and our Constitution must be
evaluated.
Jurisprudence from countries not under a system of
constitutional supremacy and jurisdictions with very different
constitutions
will not be as valuable as the jurisprudence of
countries founded on a system of constitutional supremacy and with a
constitution
similar to ours.
(d)
Any doctrines, precedents and
arguments in the foreign jurisprudence must be viewed through the
prism of the Bill of Rights and
our constitutional values."
All law in this country must be
grounded in constitutional values and respect must be given to the
fundamental rights set out in
the Bill of Rights. The adoption of a
rule from another country must be considered in that context . . . .'
[32]
I agree with the submissions made by the media respondents, that
there is considerable variation in foreign statutes that provide
for
the extension of child anonymity protection into adulthood. The media
respondents submit that numerous considerations (and
qualifications
and conditions) are brought to bear in constructing these extensions,
in that;
(a) Foreign statutes
variously protect offenders, victims and witnesses; first-time and
repeat-offenders and deceased persons.
(b) Foreign statutes
differ in how they regulate cases of emergency and endangerment and
investigations.
(c) Foreign statutes
impose different conditions for anonymity protection (for instance,
the party's cooperation in the criminal
proceedings and the quality
of the evidence given).
(d) Foreign statutes
differ in defining who may apply to the court for a lifting of the
publication ban.
For
these reasons, I have not placed reliance upon foreign jurisprudence.
[33]
I sympathise with the objective of the appellants in seeking to
protect the anonymity of children as victims, witnesses and
offenders
of crime, once they reach adulthood. However, whether the law
requires amendment and if so, the nature and extent of
any such
amendment, is a task more appropriately left to the Legislature. The
Minister of Justice and Correctional Services supports
the victim and
adult extensions to the protection of the anonymity of children. The
Minister is therefore able to take the appropriate
steps to receive
representations from interested parties and facilitate public debate
on this issue, with a view to possibly introducing
appropriate
legislation in Parliament.
[34]
The appellants have been unsuccessful in their appeal against the
dismissal by the court a quo of the adult extension. The
media
respondents have also been substantially unsuccessful in their
cross-appeal against the order by the court a quo declaring
that the
protection offered by s 154(3) of the CPA applies to victims of
crime, who are under the age of 18 years. Although the
declaratory
order of the court a quo to this effect falls to be set aside, it
will be replaced by a declaration of constitutional
invalidity and a
reading in to the section, pending its amendment by Parliament, which
has the same practical effect. For this
reason the appellants in
respect of the appeal and the media respondents in respect of the
cross-appeal, should each pay their
own costs. The order preserves
the order made by the court a quo on 21 April 2017, to protect the
identity of the second applicant
KL, pending the outcome of any
appeal to the Constitutional Court.
[35]
I grant the following order:
1 The appeal is
dismissed.
2 The cross-appeal is
upheld to the extent that para 1 of the order of the court a quo is
set aside, and replaced with the following
orders:
‘
(1)(a)  It is
declared that the provisions of
s 154
(3) of the
Criminal Procedure
Act 51 of 1977
are constitutionally invalid to the extent that they
do not protect the anonymity of children as victims of crimes at
criminal
proceedings.
(b) Parliament is to
remedy the aforesaid constitutional invalidity within 24 months of
the date of this order.
(c) Pending Parliament's
remedying of the aforesaid constitutional invalidity,
s 154(3)
of the
Criminal Procedure Act 51 of 1977
is deemed to read as follows:
'No person shall publish
in any manner whatever any information which reveals or may reveal
the identity of an accused under the
age of 18 years
or of a
victim
or of a witness at 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 particular person.'
(d) In the event that
Parliament does not remedy the aforesaid constitutional invalidity
within 24 months of this order, paragraph
(c) shall become final.
(e) The orders of
constitutional invalidity are referred to the Constitutional Court
for confirmation.’
3 The date of the order
of constitutional invalidity will be the date of this order.
4 The appellants and the
respondents are ordered to pay their own costs in respect of the
appeal and cross-appeal.
K
G B Swain
Judge
of Appeal
Willis
JA (Mocumie JA concurring):
The
issues with which this appeal is concerned
[36]
This appeal is concerned with the constitutionality of the provisions
of s 154(3) of the Criminal Procedure Act 51 of 1977
(CPA).  The
subsection reads as follows:
‘
No person shall publish in any
manner whatsoever any information which reveals or may reveal the
identity of an accused person 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
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 particular person
.’
[37]
The difficulties raised by this case are not unique to South Africa.
For example, in some Commonwealth countries such as Australia,

Canada, New Zealand and the United Kingdom of Great Britain and
Northern Ireland, similar provisions apply, the distinguishing

feature being that the protection extends not only to child witnesses
and offenders but also to children as victims, without their

necessarily being witnesses.
[1]
In a number of instances,
the protection extends even after the child has attained the age of
18 years, unless having reached adulthood,
that person consents to
publication or the court authorises such publication.
[2]
In all these countries,
the protection seems to apply only ‘in connection with criminal
proceedings’ or similar circumstances.
[3]
In other words, there may
be a pervasive
lacuna
when it comes to children who have been the victims of crime but
where no criminal proceedings have been instituted.
[38]
Invoking the 'best interests of the child' provisions of s 28(2) of
the Constitution, the appellants have sought an order either
that the
protection in the s 154(3) of the CPA, relating to the identity of
accused persons and witnesses in criminal proceedings,
who are under
18 years of age, extends to all persons who were victims of crime at
a time when they were under the age of 18 years
or, alternatively,
that there should be a reading-in of such additional terms. Moreover,
the appellants seek an order that the
prohibition is to apply,
indefinitely, after the victim attains the age of 18 years.
[39]
Put differently, the following questions have been raised in this
appeal: (a) does s 154(3) permit publication in the media
of the
identity of persons who were victims of crime at a time when they
were children but who have not yet testified in criminal
proceedings
or are not to be called so to testify; (b) if so, does this survive
constitutional scrutiny and (c) whether the protection
which may or
may not be afforded under s 154(3) terminates once the child turns 18
years of age and (d) if so, whether this, in
turn, survives
constitutional scrutiny?
[40]
The appellants have been astute to emphasise that they do not seek an
absolute prohibition on the identification of the children
with which
this appeal may be concerned. They are content that the qualification
in s 154(3) that a judge or judicial officer may,
in appropriate
circumstances, authorise publication should remain. The difficulty is
that, self-evidently, this qualification relates
only to cases that
are actually before the judge or judicial officer concerned. What is
to happen where a child is a victim but
there is no case pending
before a court, relating to those particular circumstances?
[41]
The appellants contend that the protection which they seek should be
the default position and that each situation should be
decided on a
case-by-case basis. Practical difficulties, making the law cumbersome
and burdensome, may arise if the net, requiring
court authorisation
of publication of the identity of the child victim is too widely
cast.
The
facts of this case
[42]
The facts of this case evoke strong emotions. The second appellant,
widely known to the public as ‘Zephany Nurse’,
although
this is not her real name, had been abducted from hospital when she
was two days old. She was ‘found’ in February
2015, when
she was 17 years’ old. The person whom she had grown up
believing was her mother was prosecuted in a criminal
trial. The
matter was news not only in South Africa but also abroad. Journalists
camped outside the second appellant’s home
and school. She was
forced to go into hiding.
[43]
Questions then arose as to the extent and duration of the second
appellant’s anonymity. In March 2015 the first appellant,
the
Centre for Child Law, wrote to various prominent media houses,
requesting an undertaking that they would not reveal the second

appellant’s identity. None of them agreed to do so. Some
contended that the protection would lapse, once the second appellant

attained the age of 18 years.
[44]
On 21 April 2015, the high court granted an urgent interim interdict,
protecting the identity of the second appellant until
the proceedings
in this case had been finalised.
[45]
In the meantime, in July 2015, it was discovered that a book on the
story of the second appellant’s life was due to be
published,
bearing a photograph of the second appellant on its cover. The threat
of legal action dissuaded the publisher from proceeding
to publish
the book with the photograph on the cover. In March 2016,
The
Daily Voice
,
owned by the second respondent, Independent Newspapers (Pty) Ltd,
published a series of articles about the story, carrying ‘pixellated’

photographs of the second appellant. A complaint to the Press
Ombudsman was successful. He held that the articles breached the

court order and the Press Code.
[46]
In June 2016,
You
Magazine
,
published by the first respondent, carried a story in which it
included photographs of the second appellant’s biological

sister, reporting on the widely circulated perception that the
sisters were very similar in appearance. In August 2016,
New
Age
newspaper published a story on its website that the second appellant
was pregnant, mentioning her aunt by name.  The story
was
‘relayed’ by at least two other publications. When
photographs of the second appellant’s first meeting with
her
biological parents were published in the
Daily
Voice
,
this complicated her relationship with them.
[47]
The appellants have put before the court examples of several
‘real-life’ instances, where the media, contending
that
the protection of minors, whether as witnesses or perpetrators of
crimes, is lost once they attain their majority, have gone
ahead and
published details of identity, as soon as the age of 18 has been
reached. In any event, the media contend that s 154(3)
affords the
second appellant no protection at all, as she is neither an accused
person nor a witness to a crime.
The
decision of the high court and the stance of the relevant organs of
state
[48]
The Gauteng Provincial Division of the High Court in Pretoria (Hughes
J), issued a declarator that the provisions of s 154(3)
applied to
victims of crime who were under the age of 18 years but refused to
extend the protection, once the victim has attained
what is
effectively the age of majority in South Africa.
[4]
The high court directed
that each party was to pay its own costs in the proceedings. The
appellants sought leave to appeal against
the refusal to extend the
protection beyond the age of majority, as well as the order as to
costs. The respondents sought leave
to cross-appeal against the
declarator that was issued. Leave, both to appeal and to cross-appeal
to this court, was granted by
the court a quo.
[49]
Both the Minister of Justice and Correctional Services and the
National Director of Public Prosecutions (NDPP), the fourth
and fifth
respondents respectively, have supported the appellants’
contentions both in this court and the high court and
have agreed to
abide the decision of this court. For convenience, I shall refer to
the first, second and third respondents, all
of whom have substantial
media interests, as ‘the media respondents’.
The
appellants’ contentions
[50]
The appellants have reasoned that protecting the anonymity of child
victims, witnesses and offenders involves a balancing of
two sets of
rights and interests that may, from time to time, compete with one
another. The appellants contend that, on the one
hand of the scales
are the constitutional rights of children and, on the other, the
right of freedom of expression, together with
the principle of open
justice.
[51]
The appellants argue that the starting point is s 28(2) of the
Constitution, which provides that the best interests of the
child are
of ‘paramount importance in every matter concerning the child’.
Referring to
J
v National Director of Public Prosecutions
,
[5]
(
J
v NDPP
)
they submit that this is not only a constitutional principle but also
a self-standing right.
[6]
That right requires,
moreover, so the appellants contend, that the interests of children
are afforded the ‘highest value’
[7]
and that, accordingly,
their interests are ‘more important than anything else,’
even though this does not, of course,
relegate everything else to
unimportance.
[8]
The expert evidence in
support of the appellants’ contentions
[52]
The appellants filed the affidavits by the following experts, in
support of their contentions: Professor Ann Skelton, director
of the
Centre for Child Law, a member of the Committee on the Rights of the
child and an expert on what may be described as ‘legal
justice
for children’; Dr Giada Del Fabbro, a psychologist having wide
experience in clinical psychology, including the assessment
and
therapeutic experience of young children and adolescents; Ms Joan Van
Niekerk, a former director of Childline and a social
worker who has
worked with thousands of child victims and child offenders and Ms
Arina Smit, a manager at the clinical unit of
the South African
National Institute for Crime Prevention and the Reintegration of
Offenders (NICRO), who has worked with more
than one thousand child
offenders over the past 17 years.
[53]
The expert evidence shows that children who are victims of crime tend
to suffer from a range of psychological harm as a result
of being
identified in the media. The harm includes further trauma, stigma,
shame and fear, affecting the child victim’s
ability to recover
and return to normal life. Dr Del Fabbro explained that, in general,
identification can re-traumatise children
and undermine the long-term
healing process. The fear of identification may also prevent child
victims from reintegrating into
their communities. The threat of
being identified in the media may also prevent a child victim from
trusting those around her,
which is necessary to obtain adequate
family support.
[54]
More generally, the threat of being identified in the media has the
pervasive effect of discouraging not only the reporting
of crimes
against children, but also child victims co-operating with the
investigators. These facts were recognised by the Supreme
Court of
Canada in
AB
v Bragg
.
[9]
There it said as follows:
‘
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 the
authorities
.’
[10]
These
aspects received strong emphasis in the evidence of Ms Van Niekerk.
The
media respondents’ contentions
[55]
The media respondents do not dispute the expert evidence of the
appellants but contend that it is not necessarily true that
it is
always the case that it is harmful to be known as the victim of a
crime. Moreover, the media respondents have argued that
the relief
sought by the appellants is far-reaching, indiscriminate and without
precedent anywhere in the world. They submit that
it does not strike
an appropriate balance between the rights of children, on the one
hand, and the right of freedom of expression
and open justice, on the
other. The ‘open justice principle’ is, in their view,
summarised in the provisions of s 152
of the CPA which provides that
‘all criminal proceedings in any court shall take place in any
court’ except ‘where
otherwise expressly provided for by
this Act or any other law’.
[56]
The media respondents contend that
s 32
of the
Superior Courts Act 10
of 2013
encapsulates the principle that should apply in this case.
The section provides that:
‘
Save as is otherwise provided
for in this Act or any other law, all proceedings in any Superior
Court must, except insofar as any
such court may in special cases
otherwise direct, be carried out in open court
.’
In
similar vein, the media respondents have referred to the affirmation
in the Constitutional Court in
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services &
another: In Re Masethla v President of the Republic
of South Africa &
another
[11]
that ‘the default position is one of openness’.
[12]
So too, they have referred to the speech in the United Kingdom’s
House of Lords in
In
re S
(
A
child
)
[13]
in which the ‘general and strong rule’ in favour of
openness and general public access to information concerning court

proceedings was affirmed.
[14]
There can be no question that, as general principles, these are to
prevail in our country.
[57]
The media respondents have described the relief sought by the
appellants as ‘victim extension’ and ‘adult

extension’. They reason that if the arguments of the appellants
prevail, the prohibition on the disclosure of identity would
apply
even when the identification of the child is harmless or for the
benefit of the child, it would effectively prohibit identification
of
the child’s family because their identification will ordinarily
have the effect of revealing the identity of the child.
The ban, in
the media respondents’ submission, would apply not only to the
so-called ‘mass media’ but also to
academic journals and
publications; it would apply even where a guardian or a child, after
attaining the age of majority, has consented
to the publication; it
would cover situations, such as motor accidents, where it may be
uncertain whether the child is the victim
of criminal conduct such as
culpable homicide. The media respondents cautioned against the
so-called ‘chilling effect’
of the limitations on
disclosure of identity for which the appellants have argued. The
media respondents also referred us to the
decision in the United
Kingdom in
R
(
on
the application of JC
)
v
Central Criminal Court
[15]
in which, while acknowledging the difficulty of the question, it was
held that the protection of the identity of persons under
the age of
18 years did not extend into their adulthood. Persuasive though the
reasoning may have been, it will, of course, not
necessarily prevail
under our own constitutional dispensation.
[58]
The following scenarios were sketched by the media respondents: a
child is injured in a motor accident as a result of another’s

reckless and negligent driving but the child’s school may not
make the matter known in its newsletter or at an assembly,
neither
may the church pray for her recovery; so too, where the child is a
victim of a robbery at home or in a motor vehicle hi-jacking

incident; a child displays extraordinary bravery in the face of a
crime but no one may publicly commend the fact; even once a child

dies, whether in childhood or in later adulthood, the ban would
remain.
[59]
In summary, the media respondents contend that, although there may be
a few exceptional instances where the law does not adequately
protect
persons who were the victims of crime at a time when they were
children, the extensions that the appellants require are
neither
constitutionally permissible nor constitutionally required. The media
respondents have pointed out that in terms of s 4(1)
(b)
of the
Child Justice Act 75 of 2008 (the CJA), the prosecution of all
persons who are under the age of 18 years at the commencement
of the
proceedings against them must take place in the child justice courts
and, in terms of s 63(5) thereof, must take place in
camera. In
addition, the media respondents have drawn attention to the fact that
in terms of s 153(1) of the CPA, presiding officers
in criminal
prosecutions have a wide discretion to direct that proceedings be
held behind closed doors, more particularly, in terms
of s 153(2)
thereof, in order to protect witnesses and may, in terms of s 154(1)
thereof, direct restrictions on publication.
[60] Moreover, we were
reminded that, in terms of ss 153(3), 153(3A), 154(2)
(a),
170A
and 335A(1) of the CPA, special protections are afforded to victims
of sexual offences and extortion and, in
Director
of  Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
,
[16]
the Constitutional Court held that s 28(2) of the Constitution
obliges both prosecutors and the court
mero
motu
to
consider the application of ss 153(3) and 170A of the CPA to protect
child complainants and witnesses.
[17]
The media respondents also drew our attention to the fact that s
154(3) of the CPA prohibits, without the authorisation of the
court,
the disclosure of the identity of an accused person who is under the
age of 18 years.  In similar vein, we were reminded
that s
4(1)(
b
)
of the CJA applies to all children who were under the age of 18 years
and that in terms s 63(5) of that Act (the CJA), all proceedings
in
child justice courts must be held in camera.
[18]
[61] It is true that s
153(3) of the CPA protects the disclosure of the identity of victims
of sexual offences and extortion.
[19]
It is also true that s 154(3) of the CPA prohibits, without the
authorisation of the court, the disclosure of the identity of an

accused person who is under the age of 18 years. Furthermore, it is
true that trials of accused persons who are children must be

conducted in camera by specialist courts. Legislative protection of
the identity of children in criminal matters is not derelict
but it
does not, as a general rule, protect those children who are or have
been victims of crimes, without them being called as
witnesses in
particular cases relating thereto.
[62] A child who is the
victim of a crime perpetrated by an adult is not protected by the CJA
precisely because the trial will take
place in the ordinary criminal
courts. There is also the problem of ‘leaks’ to the media
– an ever-present reality
in a world of electronic social media
devices. Counsel for the media suggested that the law of defamation
would adequately protect
persons from disclosure of identity in
instances such as this. This submission fails adequately to take into
account not only the
huge expense of civil litigation, which most
ordinary citizens will find difficult, if not impossible to afford,
but also that
a defamation action in itself attracts further
publicity. Additionally, there is the sheer power of the social media
and its ‘multiplier
effect’ as a mathematical and social
reality.
[63] There are crimes,
other than those relating to sexual offences and extortion where
disclosure of the identity of children,
as victims, may be especially
harmful to them.
The animating
principle in this matter
[64]
Teddy
Bear Clinic for Abused Children and another v Minister of Justice and
Constitutional Development and another
[20]
is authority, in clear and emphatic terms, that ‘children merit
special protection legislation that guards and enforces their
rights
and liberties’.
[21]
It also affirmed that the provision in s 28(2) of the Constitution
that a child’s best interest are of paramount importance
in
every matter concerning the child, creates ‘both a
self-standing right and guiding principle in all matters affecting

children’.
[22]
Some
concrete examples of the complexity of the issues
[65]
The appellants presented us with some concrete examples of the
complexity of the issues in contention. The first example was
PN, who
was 15 years’ old when he was charged with the murder of the
leader of the Afrikaner Weerstandsbeweging (AWB), Eugene

Terre’blanche. The AWB has been a controversial organisation,
stirring up passions when it comes to the issue of ‘race’.

PN’s trial was held in camera and much effort was made by the
State, the court and his family to protect his identity. PN
turned 18
years of age the day before the verdict was handed down. He was
acquitted of the murder but his name and photograph were
thereupon
published in the media. In Ventersdorp, the home town of both PN and
Eugene Terre’blanche the racially charged
atmosphere there
became intense. PN was in danger of his life. He left Ventersdorp as
a result and has disappeared without trace.
[66]
The second was of DS, who also was 15 years’ old when he was
charged with murder and rape. Although the case attracted
much media
attention, his identity was largely protected for the duration of the
trial. He turned 18 years of age two days after
he had been
sentenced. On the day before his eighteenth birthday posters
advertised that his identity would be made known the next
day. This
indeed happened with the media publishing his name and photographs
under headlines such as: ‘Meet [DS], the Griekwastad
Killer’.
[67]
The third was MO, who was 17 when he was arraigned in court on
charges of culpable homicide. The magistrate had ordered that
his
identity could not be revealed. MO turned 18 years of age during the
trial. Notwithstanding the magistrate’s order, local
newspapers
went ahead and published his name and other identifying information
upon MO having attained his majority.
[68]
Vastly much more complex than the cases of PN, DS and MO is that of
MVB, a child victim of crime. The trial court found that
her family
was murdered by her brother and that she too was a victim of her
brother’s attack, having been severely injured
but not killed.
The case received huge media publicity. Almost unavoidably, the media
published information concerning her identity
in their reportage of
the case but the media’s intrusiveness into her dignity and
privacy was extensive. MVB’s name,
her photographs, details of
the institutions at which she had been receiving treatment and the
name of the school which she attended
were published. Upon her
release from hospital, she was pursued by the media with intimate
details about her life and her experiences.
MVB’s curator, an
advocate, Louise Buikman SC, filed an affidavit detailing the great
stress and harm that MVB suffered.
Despite a court order and
complaints to the Press Council, these intimate details have
continued to be published in the media.
Conclusions
concerning the constitutional adequacy of the protection of the
identity of children as victims of crime
[69]
The history of incidents involving children as victims, as outlined
above, makes it plain that the voluntarily adopted Press
Code is not
capable of adequately protecting these persons. In any event, the
Press Code applies only to those print and online
media organisations
that have agreed to be bound by it. The complaints procedure is
retrospective (applying ‘after the horse
has bolted’) in
the sense that it applies only once the damage has been done and not
in anticipation of it.
[70]
Subject to certain qualifications, freedom of expression, when
reporting on incidents in which children have been victims of
crime,
may fulfil important social functions. For example, where children
have been the victims of accidents, reporting thereon
may lead to
greater public awareness of the need for special care and protection.
Reporting on incidents such as the one that has
been directly
relevant in this case may be conducive to greater vigilance and
supervision at hospitals. Media coverage of cases
where children have
been the victims of sexual and other abuse may deepen society’s
awareness of the problem, how to look
out for it and to prevent it.
[71]
Lord Reith, the founding father of the British Broadcasting
Corporation (BBC) famously said, in a rather different context,
that
the function of the broadcaster was ‘to inform, to educate and
to entertain’.
[23]
When it comes to children who are victims of crime, information and
education are critically relevant. There is, however, to be
no
‘entertainment’ in such matters. Prurience is resolutely
to be discouraged. The appellants do not seek a blanket
ban on
reporting on the victims of crime. What they ask for is protection of
their identity. It is this protection of identity
– rather than
a total ban on news reporting – that is so important and which
strikes the balance between the freedom
of expression, on the one
hand and the aggregate of the rights to dignity, privacy and the best
interests of the child, on the
other.
[24]
Anonymisation has, for example, become the standard practice in
judgments where children are involved.
[25]
This principle is also apparent in s 74 of the Children’s Act
38 of 2005.
[72]
This sense of balance was apparent in
Johncom
Media Investments Limited v M & others
[26]
(
Johncom
)
in which Jafta AJ, delivering the unanimous judgment of the
Constitutional Court, said that any limitation of rights contained
in
the Bill of Rights of the Constitution, as contemplated in terms of s
36 thereof, involves the balancing of competing interests
in a
process that has been described as a ‘proportionality
analysis’.
[27]
In
Johncom
the Constitutional Court held that the effectively blanket
prohibition on the publication of news reporting of divorce
proceedings,
even where these involved the best interests of minor
children, could not be justified under our Constitution.
[28]
Counsel for the respondents submitted that the result in
Johncom
supported their contention that the interests of freedom and
expression and open justice prevailed over the protection for
children
sought by the appellants. In my opinion this is not correct.
Not only are divorce proceedings qualitatively different from
criminal
proceedings, but Jafta AJ pertinently said that one way to
strike a balance between these contending interests would be to
‘prohibit
publication of the identity of the parties’.
[29]
He went on to say:
‘
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 the evidence that would tend to reveal the identity of
any of the parties or the children
is also prohibited. The purpose
could be better achieved by less restrictive means
.’
[30]
It
bears repeating that the appellants have not sought an absolute ban
on news reporting in which children have been victims, but
something
very much less restrictive: publication which may disclose their
identity. Of especial importance is that the freedom
to ‘speak
one’s mind’, ‘the open market-place of ideas’
is in no significant way affected by the
relief which the appellants
have sought.
[31]
The
question of the ongoing protection or the so-called ‘adult
extension’: should the protection against disclosure
of
identity in criminal matters extend once the child attains his or her
majority?
[73]
A critical question is whether the rights of a child and the
protection afforded by s 28(2) terminate upon a child turning
18
years of age. The appellants refer to this as ‘the principle of
ongoing protection’, the media respondents as ‘adult

extension’. In other words, do the experiences and acts of a
child, protected in terms of s 28(2), extend life-long?
[74]
The constitutional rights to dignity and privacy introduce balance
into the equation in which the freedom of expression is
to be
measured against the interests of a child, even after that child has
attained adulthood. These rights to dignity and privacy
provide the
bridge across the divide of the respective submissions of the
contending parties. Section 10 of the Constitution enshrines
every
person’s right to dignity and s 14 everyone’s right to
privacy.  In
Bernstein
and others v Bester and others NNO
[32]
Ackermann J said that a person’s right to privacy extends only
to these aspects in regard to which a legitimate expectation
of
privacy can be harboured.
[33]
He went on to say that a high level of protection is given to the
individual’s intimate personal sphere of life and
the
maintenance of that sphere’s basic preconditions.
[34]
[75]
It is well-established in our law that, insofar as privacy is
concerned, this right becomes more powerful and deserving of
greater
protection the more intimate the personal sphere of the life of a
human being which is at issue.
[35]
There is, moreover, a connection between a person’s rights both
to privacy and to dignity. As the Constitutional
Court said
in
Teddy
Bear Clinic:
‘Privacy fosters human dignity insofar as it is premised on and
protects an individual’s entitlement to a “sphere
of
private intimacy and autonomy”.’
[36]
[76]
A person’s rights to dignity and privacy have been strengthened
under the Constitution but it may assist our understanding
of the
depth of their vitality if we remind ourselves that, at common law,
every person had the right not only to
dignitas
(inner tranquillity) but also to
fama
(reputation),
which were protected.
[37]
Melius
De Villiers in 1899 in
The
Roman and Roman-Dutch Law of Injuries: A Translation of Book 47,
Title 10, of Voet’s Commentary on the Pandects
,
[38]
described
dignity as a ‘valued and serene condition’ and went on to
say that ‘Every person has an inborn right
to the tranquil
enjoyment of his peace of mind. . .’ Reference, with approval
thereto, has frequently been made by our courts.
[39]
[77]
There have been indications in the Constitutional Court that the
protection afforded to children as children
(for
acts and experiences qua minors)
should
extend even into their adulthood. In
Centre
for Child Law v Minister of Justice and Constitutional Development &
others (National Institute for Crime Prevention
and the
Re-Integration of Offenders as Amicus Curiae
),
[40]
the majority of the Constitutional Court decided it was
constitutionally impermissible to apply the minimum sentencing
provisions
to persons for crimes committed while they were children
because, as children, they had needed ‘special protection’.
[41]
In
J v
National Director of Public Prosecutions & another
[42]
the Constitutional Court unanimously decided that there was a need to
protect a person as an adult from being on the register of
sexual
offenders for crimes committed as a child.
[43]
The Constitutional Court has also directed that the anonymity in a
claims for damages arising from injuries experienced as a child

extended even once that child became an adult.
[44]
[78]
This principle of extending the protection of children, as children,
even once they had attained adulthood, has indeed found
application
in other parts of the world.
In
R v
McDonald,
[45]
the New Zealand High Court concluded that ‘an order for
permanent suppression of Jane’s identity is appropriate in
this
case’.
[46]
‘Jane’ had been raped and murdered.  In Australia in
New South Wales, s 15A(1) the Children’s Criminal Procedure
Act
1987 prohibits the subsequent publication of the identity of a person
who ‘was a child’ at the time to which the
proceedings
relate.
[79]
In
JXMX
v Dartford and Gravesham NHS Trust
[47]
the English Court of Appeal recognised that when it came to the
interests of children, the open justice principle  had to
yield
in favour of anonymity when reporting on court proceedings in
matters  involving children and that courts should ‘normally

make an anonymity order . . . without the need for any formal
application’.
[48]
[80]
In
R
v Secretary of State for Justice
[49]
the English Court of Appeal, after a careful review of the importance
of the ‘open justice principle’ and the right
of the
public in ‘knowing how difficult and sensitive cases of this
sort are decided’, made an ‘anonymity order’

protecting publication of the identity of an adult person who, as a
young man, had murdered his former girlfriend and her boyfriend.
[50]
[81] Moreover, there is,
in my opinion, a necessary logic in extending the protection of child
victims into their adulthood. It
is the facts that give rise either
to lawfulness or unlawfulness. Facts do not change with the passage
of time. They remain constant.
The effluxion of time may permit a
change from unlawfulness to lawfulness and vice versa (eg the
ratification of a contract or
prescription) but ordinarily there must
be some additionally relevant act, either of commission or omission,
for the change to
occur. In other words, there must, in addition,
have been the doing or not doing of an act by the holder of that
right, which is
relevant to the lawfulness thereof. As a general
rule, the passage of time does not, in and of itself, change rights.
There may,
of course, be exceptions. Access to secret material
(‘classified information’) in State archives would be an
obvious
example.
[82]
The victim of a crime cannot change the fact of her victimhood. She
may, however, perform an act that permits the publication
of the fact
of her victimhood. The most obvious example would, of course, be the
giving of her consent thereto but without some
additionally relevant
fact (other than the mere passage of time), it would be offensive to
first principles of law for her to lose
her right to non-disclosure
of her victimhood to a crime. Relevant among these first principles
is that, in the absence of some
compelling reason otherwise, the law
prefers to come to the aid of the weak and vulnerable rather than the
strong and powerful.
This principle permeates the Bill of Rights in
the Constitution and has been made plain, over and over again, by the
courts since
the advent of democracy.
[51]
Another relevant principle is that, unless an injustice would result,
when it comes to lawmaking, simplicity is preferable to
complexity.
[52]
[83]
A default position in law that allows for a retrospective intrusion
into a person’s victimhood of crime as a child would,
in my
opinion, violate that person’s constitutional right to
dignity.
[53]
The knowledge, as a child, that one’s identity as a victim of
crime may be revealed upon the attaining of one’s majority,
may
haunt that child, causing her considerable emotional stress. In my
opinion, it verges on cruelty to sanction torment such as
this.
[84] A rule of law that,
save in exceptional circumstances, the identity of a child who was
victim of crime should be protected
from disclosure for life would be
easy for the people of this country to understand, remember, respect
and apply. It would be unacceptable
for victims to have to bear an
onus to obtain an injunction against allowing disclosure. If
disclosure is to be permitted, the
onus must rest on the person
wishing to make the disclosure. Ordinarily this will be the media
which, in the usual course of events,
are very much better placed to
obtain such an injunction than is a victim to obtain a converse
order.
[85]
A constitutional right, even one as important as freedom of
expression, may be limited.
[54]
As Kriegler J pointed out, when delivering the majority judgment of
the Constitutional Court in
Coetzee
v Government of the Republic of South Africa; Matiso & others v
Commanding Officer Port Elizabeth Prison & others
,
[55]
no right enshrined in the Bill of Rights in the Constitution is
absolute
.
[56]
There may be circumstances where the limitation of a right, even one
of fundamental importance, may be justified.
[57]
Kriegler J went on to say that, in most instances: ‘In making
the determination [whether the limitation of the right is justified]

. . . one really need not go beyond the test of reasonableness’.
[58]
Reasonableness depends on the facts of each particular case.
[59]
[86]
It is reasonable indeed not only that there should be protection of
the identity of persons who have been victims of crime
while they are
children, but also that this and the other protections of them as
witnesses and offenders should extend even when
they reach adulthood.
Their dignity and right to privacy require no less. The same applies
to those who were witnesses to crime
as children or were children
when they were offenders. This entails no serious sacrifice of the
principle of freedom of expression.
Identity may be especially
important in the sphere of public life and affairs. Children play no
role in public life and affairs
and, ordinarily, even once they have
grown up, what happened to them as victims of crime, what crimes they
witnessed and what crimes
they may have committed are not,
legitimately, publicly relevant.
[87]
Counsel for the media respondents have argued, fairly and correctly,
that criminal proceedings are quintessentially in the
public
interest. In this regard they have referred to the judgment of the
Constitutional Court in
S
v Shinga
(
Society
of Advocates
(
Pietermaritzburg
))
;
O’Connell & others v The State
[60]
and, yet again, to Lord Steyn’s speech in the United Kingdom’s
House of Lords in
In
re S (FC) (A Child)
.
[61]
[88]
In 1913 Lord Atkinson said in
Scott
v Scott
:
[62]
‘
The hearing of a case in public
may be, and often is, no doubt, painful, humiliating, or deterrent
both to parties and witnesses,
and in many cases, especially those of
a criminal nature, the details may be so indecent as to tend to
injure public morals, but
all this is tolerated and endured, because
it is felt that in a public trial is to be found, on the whole, the
best security for
the pure impartial and efficient administration of
justice, the best means for winning for it public confidence and
respect.’
[63]
These
values run deep among all those who hold dearly to the rule of law.
[89]
Lawyers and others will also have been educated about dangers of
secret trials in the history of the Court of the Star Chamber,
a
history which was crucial in shaping the principle of open justice.
The importance of open justice was stressed in
City
of Cape Town v South African National Roads Authority &
others
.
[64]
Secret trials can easily be used to settle political scores and
private vengeances. From this derives much of the general aversion

among democrats to departures from the principle of open justice.
Against this, it should be remembered that not only do children
have
no political scores to settle but also, although capable of telling
lies, they generally lack the sophistication to sustain
private
vengeances long enough to deceive a court. Where children are victims
but not witnesses, in criminal proceedings, the risk
is even further
reduced.
[90]
It is not only the open justice principle that needs to be
considered. Sight must also not be lost of the fact that in
Midi
Television (Pty) Limited t/a eTV v Director of Public Prosecutions
(Western Cape)
,
[65]
this court held that: ‘The constitutional promise [of freedom
of expression] is made rather to serve the interest that all
citizens
have in the free flow of information’.
[66]
[91]
In
Glenister
v President of the Republic of South Africa & others
[67]
the Constitutional Court
held that; ‘Implicit in s 7(2) [of the Constitution] is the
requirement that the steps the state
takes to respect, protect,
promote and fulfil constitutional rights must be reasonable and
effective.’
[68]
In
S
v M
[69]
the Constitutional Court
emphasised that s 28(2) of the Constitution requires that the law
must make its ‘best efforts’
to minimise that harm that
can come to children, to protect them from abuse and to maximise
their opportunities to lead happy and
productive lives.
[70]
[92]
In the light of the above, s 154(3) of the CPA falls short of what is
constitutionally required not only in terms of protecting
children as
victims of crime but also insofar as this and the other protections
of them as witnesses and offenders may affect them
once they reach
adulthood. In this narrow sense, the subsection is therefore
‘unconstitutional’.
[93]
The court a quo accordingly correctly found that the provisions of s
154(3) should apply to victims of crime who are under
the age of 18
years but wrongly refused to extend the protection, once the victim
has attained the age of 18 years.
[94]
There may, of course, be situations where the public interest
justifies disclosure of the fact that a person, who has become
an
adult, was once a victim, while still a child. These are aspects upon
which Parliament may wish to receive representations before
passing
appropriate legislation.
[95]
I
have had the privilege of reading the fine judgment prepared by my
brother Swain. We both agree that a ‘reading in’,
without
further ado, of either the so-called ‘victim extension’
or ‘adult extension’ would be unduly strained
and was, in
any event, faintly argued by counsel for the appellants. We also
agree that s 154(3) of the CPA falls short of meeting
the
constitutionally required standard when it comes to protecting the
identity of children who have been the victims of crime.
We agree
that Parliament should be directed to remedy the situation.
[96] Swain JA and I
disagree on whether that protection of childhood victims is
constitutionally obligatory, even after a particular
child victim has
reached adulthood. Swain JA considers that a directive by this court
to Parliament to apply the so-called ‘adult
extension’
goes too far.  Swain JA deals extensively with a so-called
proportionality analysis in coming to his conclusions
on this issue.
In my opinion, in this particular case, the concept of a ‘balancing
exercise’ may be more helpful, although
we have both applied
our minds to much the same idea. Like Swain JA, I have also referred
to Kriegler J’s judgment in
Coetzee
on the exercise that
needs to be undertaken
.
In doing so, I come to a contrary
conclusion.
[97]
At first blush, it may seem that the difference between Swain JA and
me is finely calibrated. Regrettably, we are separated
by a
philosophical ocean. In my opinion, when it comes to the disclosure
of the identity of childhood victims of crime, logic,
common sense
and ordinary, everyday morality generate a constitutional imperative.
It is that the relevant time, which is determinative
of the issue, is
the time that the person was a child and not the time from which the
child has become an adult.
In
my opinion it is obvious that if, in balancing the competing
interests at stake in this matter, the fulcrum is the question of

onus, the scales must tilt in favour of those who have become adults
but were the victims of crime at a time when they were children.
What
should be done?
[98]
The second appellant was a victim in a matter in which criminal
proceedings had been taking place. It is not necessary for
this court
to decide what should happen where a child is a victim but there is
no relevant court case. Protecting the identity
of a child victim in
those circumstances is likely to be too difficult to monitor without
the risk of injustice. In any event,
it will be difficult to strike
an appropriate legislative balance. There will be cases where
obviously protection is necessary
but, on the other hand, as the
media respondents have fairly and correctly argued, there are dangers
in being over-zealous and
casting the net too wide. These are aspects
from which the legal public, the media and the legal community will
benefit from further
debate with contributions coming especially from
the academics and institutions such as the first appellant.
[99]
In
S v M
(Centre for Child Law as Amicus Curiae)
,
[71]
the Constitutional Court described the language of s 28 of the
Constitution as ‘comprehensive and emphatic’ and said

that ‘statutes must be interpreted and the common law developed
in a manner which favours protecting and advancing the interests
of
children’.
[72]
[100]
In
Glenister
v President of the Republic of South Africa & others
,
[73]
the majority of the Constitutional Court after having referred to s
7(2) of the Constitution which ‘requires the State to
respect,
protect, promote and fulfil the rights in the Bill of Rights’
said that: ‘Implicit in s 7(2) is the requirement
that the
steps the State takes to [do so] must be reasonable and
effective.’
[74]
.
[101]
Parliament may wish to consider a wide range of representations,
looking at this complex matter from different aspects, when
it deals
with the orders that follow. The difficulties lie in casting any
protection with precision. Vague generalities would be
inimical to
the rule of law.
[75]
In
My
Vote Counts NPC v Minister of Justice and Correctional Services and
Another
,
[76]
Mogoeng
CJ, delivering the unanimous judgment of the Constitutional Court,
affirmed as a general proposition, that the absence of
legislation
adequately to deal with imperatives set out in the Bill of Rights of
the Constitution should best ‘be left to
Parliament which bears
the legislative authority of the Republic’.
[77]
He went on to say: ‘Our duty is to articulate the unfulfilled
obligation in broad terms, but with sufficient clarity to give

Parliament a fair sense of what is required of it.’
[78]
[102]
The fact that the relevant Ministers have not opposed either the
original application or this appeal has been most helpful.
It not
only removes any urgency from the matter but also facilitates the
making of the appropriate order. If a generous amount
of time is to
be allowed for Parliament to remedy the situation, there will have to
be a fairly substantial ‘reading in’
of provisions in s
154(3) of the CPA to afford protection in the meantime. The attitude
of the Ministers has the consequence that
the court may be less
circumspect about the possibility of judicial overreach than might
otherwise be the case, pending Parliament’s
consideration of
the matter. Moreover, it will allow all interested persons to adopt a
carefully considered approach to the whole
question.
[103]
In all the circumstances of the matter it is appropriate (a) to
declare s 154(3) of the CPA constitutionally invalid to the
extent
that it does not protect children as victims of crime and also
insofar as protection of them as victims, witnesses and offenders

does not extend once they reach adulthood; (b) to afford Parliament a
generous amount of time to effect the necessary amendments;
(c) to
‘read in’ protection, pending Parliamentary review; (d)
to set aside paragraph 2 of the court a quo (that which
refused to
extend the protection after children attain the age of 18 years); (e)
to direct that costs should follow the result
and (f) to refer the
orders of this court to the Constitutional Court for confirmation.
The parties agreed that if the matter is
to be remedied by
Parliament, it should be given 24 months in which to do so.
The
order that would have been made if this was the majority judgment
[104]   If this had
been the majority judgment, the following order would have been made:
1 The appeal is upheld
with costs.
2 The cross-appeal is
dismissed with costs.
3 It is declared that the
provisions of
s 154(3)
of the
Criminal Procedure Act 51 of 1977
is
constitutionally invalid to the extent that it does not protect
children as victims of crimes in which there are criminal proceedings

and to the extent that any protection that they receive in terms
thereof does not extend beyond their reaching the age of 18 years.
4 Parliament is to remedy
the aforesaid constitutional invalidity within 24 months of the date
of this order.
5 Pending Parliament’s
remedying of the aforesaid defects,
s 154(3)
of the
Criminal
Procedure Act is
deemed to read as follows:
‘’
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
.’
(The underlined portion in the aforesaid deeming provision being that
which is ‘read into’ the subsection.)
6 Pending Parliament’s
remedying of the aforesaid constitutional defects,
s 154
of the
Criminal Procedure Act is
deemed to contain an additional provision,
being
s 154(3A)
, which reads as follows:
‘
(3A)
Children subject to subsection 3 above do not forfeit the protections
afforded by that subsection upon reaching the age
of eighteen years
but may, upon reaching adulthood, consent to publication of their
identity
.’
7 In the event that
Parliament does not remedy the aforesaid constitutional defects
within 24 months of this order, orders 5 and
6 above shall become
final.
8 Paragraph 2 of the
order of the court a quo is set aside.
9 The orders of this
court are referred to the Constitutional Court for confirmation.
______________________
N
P WILLIS
Judge
of Appeal
APPEARANCES:
For
the Appellants: S Budlender (with him, N L Dyirakumunda
and
C McConnachie)
Instructed
by:
Centre
for Child Law, Tshwane
c/o
Webbers Attorneys, Bloemfontein
For
the First, Second
and
Third Respondents: W Trengove SC (with him, J Bleazard)
Instructed
by:
Cliffe
Dekker Hofmeyr Inc, Sandton
c/o
Phatsoane Henney Attorneys, Bloemfontein
For
the Fourth
and
Fifth Respondents: D Mohlamonyane
Instructed
by:
The
State Attorney,
Pretoria
The
State Attorney, Bloemfontein
[1]
See
for example
s 15A(1)
of the New South Wales Children’s Criminal
Procedure Act 1987 in Australia; s 111(1) of Canada’s Youth
Criminal Justice
Act 2002 (S.C. 2002, C.1); s 438 of New Zealand’s
Children, Young Persons and Their Families Act 1989 and s 204 of
New Zealand’s Criminal Procedure Act 2011 of No 81; s 49 of the
United Kingdom’s Children and Young Persons Act 1933
c.12, 23
and
24 Geo 5
and s 45 of that country’s Youth Justice and
Criminal Evidence Act 1999 c.23.
See
also
Lindon
v R
[2014] NSWCCA 112.
R
v DH; R v AH
[2014] NSWCCA 326.
[2]
Ibid.
[3]
Ibid.
[4]
See
the Age of Majority Act 57 of 1972.
[5]
J
v National Director of Public Prosecutions & another
[2014]
ZACC 13
;
2014
(2) SACR 1
(CC); 2014(7) BCLR 764 (CC)
(
J
v NDPP
)
para 35.
[6]
J
v NDPP
(supra)
para 35. See also
Minister
of Welfare and Population Development v Fitzpatrick & others
[2000] ZACC 6
;
2000
(3) SA 422
(CC);
2000 (7) BCLR 713
para 17.
[7]
S
v M (Centre for Child Law as Amicus Curiae)
[2007]
ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) para 42.
[8]
See
Centre
for Child Law v Minister of Justice and Constitutional Development &
others
[2009] ZACC 18
;
2009 (6) SA 632
(CC);
2009 (2) SACR 477
(CC);
2009
(11) BCLR 1105
(CC) (
Centre
for Child Law v Minister of Justice
)
para 29.
[9]
AB
v Bragg
[2012]
2 SCR 567.
[10]
Para
26.
[11]
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services &
another: In Re Masethla v President of the Republic
of South Africa
& another
[2008]
ZACC 6
;
2008 (5) SA 31
(CC); 2008 (8)  BCLR 771 (CC).
[12]
Para
43.
[13]
In
re S
(
A
Child
)
(HL)
[2004] UKHL 47
AC 593; [2004] 3 WLR 1129; [2004] 4 All ER 683;
[2005] EMLR 11.
[14]
Para
15.
[15]
R
(
on
the application of JC
)
v
Central Criminal Court
[2014]
EWCA Civ 1777.
[16]
Director
of  Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
[2009]
ZACC 8; 2009 (4) SA 222 (CC); 2009 (2) SACR 130 (CC); 2009 (7) BCLR
637 (CC).
[17]
Para
144.
[18]
‘
.
. .
was
10 years or older but under the age of 18 years when he or she was—
(i)
handed
a written notice in terms of section 18 or 22;
(ii)
served
with a summons in terms of section 19; or
(iii)
arrested
in terms of section 20, for that offence.’
[19]
‘
(3)  In criminal proceedings relating to a charge that the accused committed or attempted to commit
(a)
any sexual offence as contemplated in
section 1
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007
, towards or in connection with any other person;
(b)
any act for the purpose of furthering the commission of a sexual offence as contemplated in
section 1
of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in

connection with any other person; or
(
c)
extortion or any statutory offence of demanding from any other person some advantage which was

not due and, by inspiring fear in the mind of such other person, compelling him to render such

advantage,
the court before which such proceedings are pending may, at the request of such other person or, if
he is a minor,
at the request of his parent or guardian, direct that any person whose presence is not necessary at
the
proceedings or any person or class of persons mentioned in the request, shall not be present at the
proceedings:
Provided that judgment shall be delivered and sentence shall be passed in open court if the court is of the opinion

that the identity of the other person concerned would not be revealed thereby.
’
[20]
Teddy
Bear Clinic for Abused Children and another v Minister of Justice
and Constitutional Development and another
[2013]
ZACC 35
;
2014 (2) SA 168
(CC);
2014 (1) SACR 327
(CC);
2013
(12) BCLR 1429
(
Teddy
Bear Clinic
).
[21]
Para
1. See also
De
Reuck v Director of Public Prosecutions, Witwatersrand Local
Division, & others
[2003] ZACC 19
;
2004 (1) SA 406
(CC); 2003(2) SACR 445
[2003] ZACC 19
; ;
2003 (12) BCLR 1333
para 63.
[22]
Para
65. See also
Minister
of Welfare and Population Development v Fitzpatrick & others
[2000] ZACC 6
;
2000 (3) SA 422
(CC);
2000 (7) BCLR 713
paras 17-18.
[23]
See
for example
https://www.cps.org.uk/files/reports/original/111027112808-20090324PublicServicesToInformEducateAndEntertain.pdf
(Accessed
10 September 2018).
[24]
See
for example
Johncom
Media Investments Limited v M & others
[2009]
ZACC 5
;
2009 (4) SA 7
(CC);
2009 (8) BCLR 751
paras 42-45.
[25]
See
for example
Johncom
v M
(
supra
);
J
v NDPP
(
supra
)
fn 3
;
AD & another v DW & others
(
Centre
for Child Law as Amicus Curiae; Department of Social Development as
Intervening Party
)
[2007] ZACC 27
;
2008 (3) SA 183
(CC);
2008 (4) BCLR 359
(CC);
S
v M
(
Centre
for Child Law as Amicus Curiae
)
[2007] ZACC 18
;
2008 (3) SA 232
(CC); 2007 (12) 1312 (CC).
[26]
Johncom
Media Investments Limited v M and others
[2009] ZACC 5; 2009 (4) SA 7 (CC) ; 2009 (8) BCLR 751 (CC).
[27]
Para
23.
[28]
Paras
30-31.
[29]
Para
30.
[30]
Ibid.
See also
National
Coalition for Gay and Lesbian Equality & another v Minister of
Justice & others
1999
(1) SA 6
(CC);
1998 (12) BCLR 15
para 35.
[31]
Islamic
Unity Convention v Independent Broadcasting Authority & others
[2002] ZACC 3
; ;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
para 27;
S
v Mamabolo (eTV & others Intervening
)
[2001] ZACC17
[2001] ZACC 17
; ;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
paras 28 and
37.
[32]
Bernstein
and others v Bester and others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC); 1996 (4) BCLR 449.
[33]
Para
75.
[34]
Para
77.
[35]
See,
for example,
Investigating
Directorate: Serious Economic Offences and others v Hyundai Motor
Distributors (Pty) Ltd and others: In re Hyundai
Motor Distributors
(Pty) Limited and others v Smit NO and others
[2000] ZACC 12
; ;
2001
(1) SA 545
(CC); 2000 (10) BCLR 1079.
[36]
Para
64.
[37]
See,
for example,
Khumalo
and others v Holomisa
[2002] ZACC12
[2002] ZACC 12
; ;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
paras
17, 18 and 19.
[38]
Juta’s:
Cape Town
at
p24.
[39]
See,
for example,
Minister
of Police v Mbilin
i
1983 (3) SA 705
(A) at 715G-716A;
Jacobs
en ’n Ander v Waks en Andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 542C-E;
Argus
Printing and Publishing Company Limited v Inkatha Freedom Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A) at 585E-G;
Argus
Printing and Publishing Company Limited v Esselen’s Estate
1994 (2) SA 1
(A) at 23D-H. See also
Teddy
Bear Clinic v Minister of Justice
(supra) para 56.
[40]
Centre
for Child Law v Minister of Justice and Constitutional Development &
others (National Institute for Crime Prevention
and the
Re-Integration of Offenders as Amicus Curiae
)
[2009] ZACC 18; 2009 (6) SA 632 (CC); 2009 (2) SACR 477 (CC); 2009
(11) BCLR 1105
(CC).
[41]
Paras
24-38.
[42]
J
v National Director of Public Prosecutions & another
[2014] ZACC 13; 2014 (2) SACR 1 (CC); 2014 (7) BCLR 764 (CC).
[43]
Para
43.
[44]
Member
of the Executive Council for Health and Social Development, Gauteng
v DZ obo WZ
[2017]
ZACC 37
;
2018 (1) SA 335
(CC);
2017 (12) BCLR 1528
(CC) fn 1.
[45]
In
R
v McDonald
[2015]
NZHC 511
.
[46]
Para
93.
[47]
JXMX
v Dartford and Gravesham NHS Trust
[2015] EWCA Civ 96.
[48]
Para
34.
[49]
R
v Secretary of State for Justice
[2016] UKSC.
[50]
Paras
38-40.
[51]
See
especially s 9 of the Constitution.
[52]
See
for example International Bar Association (IBA) ‘The rule of
law and the law of rules’
14
February 2018
https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=7bd6542d-e5b1-43f4-9810-96344b2ccd35
(
Accessed
12 September 2018)
[53]
Section
10 of the Constitution.
[54]
See
s 36 of the Constitution.
[55]
Coetzee
v Government of the Republic of South Africa; Matiso &
others
v Commanding Officer Port Elizabeth Prison & others
1995
(4) SA 631 (CC); 1995 (10) BCLR 1382.
[56]
Paragraph
11.
[57]
Ibid.
[58]
Ibid.
[59]
See,
for example,
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-G;
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) para 45 and
the authorities therein cited;
Za
v Smith & another
[2015] ZASCA 75
;
2015 (4) SA 574
(SCA);
[2015] 3 All SA 288
(SCA)
para 24.
[60]
S
v Shinga
(
Society
of Advocates
(
Pietermaritzburg
))
;
O’Connell & others v The State
[2007]
ZACC 3
;
2007 (4) SA 611
(CC);
2007 (2) SACR 28
(CC);
2007 (5) BCLR
474
(CC) especially para 26.
[61]
In
re S (FC) (A child)
(supra)
para 30..
[62]
Scott
v Scott
[1913]
AC 417.
[63]
At
463. See also
Attorney
General (Nova Scotia) v MacIntyre
[1982]
1 SCR 175
at 185.
[64]
City
of Cape Town v South African National Roads Authority & others
[2015]
ZASCA 58
;
2015 (3) SA 386
(SCA);
[2015] All SA 517
(SCA);
2015 (5)
BCLR 560
(SCA) especially paras 12-13, 18-19, 21 and 44-47
.
[65]
Midi
Television (Pty) Ltd t/a eTV v Director of Public Prosecutions
(Western Cape)
)
[2007] ZASCA 56
;
[2007] 3 All SA 318
(SCA);
2007 (9) BCLR 958
(SCA).
[66]
Para
6.
[67]
Glenister
v President of the Republic of South Africa & others
[2011]
ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC)
.
[68]
Para
189.
[69]
S
v M
(
Centre
for Child Law as Amicus Curiae
)
[2007] ZACC 18
;
2008 (3) SA 232
(CC); 2007 (12) 1312 (CC).
[70]
Paras
19-20.
[71]
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18; 2008 (3) SA (CC).
[72]
Para
15.
[73]
Glenister
v President of the Republic of South Africa & others
[2011] ZACC 6
; 2011 (3) SA (CC); 2011 97) BCLR 651 (CC).
[74]
Para
189.
[75]
See
example Beinart B, ‘The Rule of Law’
1962
Acta
Juridica
99.
[76]
My
Vote Counts NPC v Minister of Justice and Correctional Services and
Another
[2018]
ZACC 17; 2018 (8) BCLR 893 (CC).
[77]
Paras
75-76.
[78]
Para
76.