The story of Amy’Leigh de Jager (6) touched thousands (if not millions) of South Africans. The beautiful little girl was kidnapped at school on the morning of September 2. Missing person notices indicated that four men in a white Toyota Fortuner had grabbed her and drove off. Social media posts asking South Africans to be on the lookout for her went viral and many felt that their prayers had been answered when she was found in the early hours of the next morning. Tharina Human, Laetitia Nel and Pieter van Zyl have since been charged in connection with her kidnapping. Human is reportedly a teacher and was friends with Any’s mother. When the accused appeared in the Vanderbijlpark Magistrate’s Court earlier this week, the courtroom was packed and certain media members were not allowed into the courtroom. Attorney Willem de Klerk was able to assist the media by articulating the argument that the media was by default allowed to be in court. He added that media members may take photos and videos in courtrooms as long as court is not in session. The state prosecutor initially wanted an order barring the media from publishing photographs of the accused, but withdrew this request after opposition from De Klerk. Click here to see Vaalweekblad’s video. · May journalists and members of the public access South African courtrooms? In terms of the Constitution of South Africa, every accused has the right to a public trial. Section 152 of the Criminal Procedure Act states that “Criminal proceedings to be conducted in open court except where otherwise expressly provided by this Act or any other law, criminal proceedings in any court shall take place in open court, and may take place on any day.” The principle of open justice applies in South Africa and the media plays an important role in giving effect to it. South Africans have the right to know what happens in our courts of law, except where the presiding officer in a case decides that proceedings will not be open to the media. One example is when, during the rape case against Nicholas Ninow, the media and public were asked to leave the courtroom while his victim (now 8) testified. Because many South Africans work during court hours and are unable to attend court proceedings, the media provides them with information on court cases, thereby giving effect to the public’s right to know what happens in our courtrooms. In terms of the Constitution, residents of South Africa have the right to receive information in the public interest . The media, on the other hand, has the mandate of informing the public on such matters and should not be stifled unjustifiable in executing this mandate. · May the media identify minor crime perpetrators and victims? This became topical during the so-called the Zephany Nurse case. Nurse (who was raised as Miché Solomon) was abducted from hospital shortly after her birth. When she was 17, learners at her school noted a striking similarity between Solomon and a younger learner. DNA tests proved that she was the missing Nurse baby that had disappeared from Groote Schuur hospital in 1997. A newly released book titled ‘Zephany’ identifies her and tells her story. Section 154(3) of the Criminal Procedure Act prohibits the publication of content that could lead to the identification of minor witnesses and offenders. In the Supreme Court of Appeal case of Centre for Child Law and Others v Media 24 Limited and Others, the court found section 154(3) of the Criminal Procedure Act 51 of 1977 to be constitutionally invalid to the extent that its provisions do not protect the anonymity of children crime victims during criminal proceedings.
In s aubsequent judgment, the Constitutional Court made the following order:
“On appeal from and in an application for the confirmation of the order of the Supreme Court of Appeal, the following order is made:
1. The declaration by the Supreme Court of Appeal that section 154(3) of the Criminal Procedure Act 51 of 1977 is constitutionally invalid to the extent that it does not protect the identity of children as victims of crimes in criminal proceedings is confirmed.
2. Leave to appeal is granted against the part of the order of the Supreme Court of Appeal that dismissed an appeal challenging the constitutionality of section 154(3) of the Criminal Procedure Act on the issue of ongoing protection.
3. The appeal is upheld.
4. Section 154(3) of the Criminal Procedure Act is declared constitutionally invalid to the extent that the protection that children receive in terms thereof does not extend beyond their reaching the age of 18 years.
5. The declaration of constitutional invalidity is suspended for 24 months to afford Parliament an opportunity to correct the defect giving rise to the constitutional invalidity.
6. Pending Parliament’s remedying of the aforesaid defects, section 154(3) of the Criminal Procedure Act is 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.
(3A) An accused person, a witness or victim referred to in subsection 3 does not forfeit the protections afforded by that subsection upon reaching the age of eighteen years but may consent to the publication of their identity after reaching the age of eighteen years, or if consent is refused their identity may be published at the discretion of a competent court.”
7. In the event that Parliament does not remedy the constitutional defects within 24 months of this order, paragraph 6 of the order shall continue to apply.”
