While the Centre for Child Law argues that when child offenders, witnesses or victims are named by the media before and after the age of 18 it harms them, media houses say there should not be an open ban on the identification of any children involved in criminal cases.

The matter was heard in the Constitutional Court on Tuesday. Advocate Steven Budlender – representing the centre – argued that children's anonymity should be protected and if the media wants to ‘out’ those accused or convicted of a crime it should approach the court. Budlender argued that there was no proper explanation as to why child victims should not be protected.

A News24 report notes there were two applications before the court – first an application for confirmation of part of an order which was handed down by the SCA. The order declared section 154(3) of the Criminal Procedure Act to be constitutionally invalid to the extent that the provisions do not protect the identity of child victims in criminal proceedings.

A second application for leave to appeal against the second part of the SCA order which held that section 154(3) is constitutionally valid even though it does not ensure ongoing anonymity of child accused persons, victims and witnesses once they turn 18.

The case stems from the Zephany Nurse kidnap matter which was heard in 2016. During arguments on Tuesday, Budlender said: ‘We accept for present purposes that the position is that the SCA order is limited to criminal proceedings. That does mean that there will be some children who remain at risk but if this court confirms the order and sends it to Parliament, you can be rest assured that my clients will be there to lobby Parliament to say, 'you should go further than the SCA,’ he said. The News24 report notes the application to prevent the naming of child victims, witnesses and offenders after they turn 18 was first dismissed in the Gauteng High Court (Pretoria) and was then appealed to the SCA. It ordered that the legislature make the necessary amendments to the Criminal Procedure Act but, in the meantime, has ‘written’ in the prohibition into the relevant clause. Advocate Budlender said: ‘The debate today is the default position; the applicant contends for a default position as 154(3) already exists which says you may not identify the children concerned unless the court gives you permission to do so.’

But Advocate Wim Trengove – representing the respondents – argued that the ad hoc protection that the law affords children is the appropriate one. ‘What I am here to oppose is the idea that there should be an open ban on the identification of any children involved in criminal cases,’ Trengove argued, according to the News24 report. Speaking about the Zephany Nurse case, Trengove said if the story broke before the criminal proceedings then she would be unprotected. ‘The protection of a victim only kicks in when criminal proceedings start off,’ he said. Trengove also added that the respondents don’t take issue with the proposition that the child victims of crime often ‘suffer great trauma by the crime itself and that that trauma is exacerbated by public disclosure of it’. Judgment was reserved.

Full News24 report