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

The case arose from the kidnapping of KL as a two-day-old baby. Seventeen years later, she was found and reunited with her biological parents. The woman who raised her was criminally charged. KL was a potential witness but would turn 18 before the criminal proceedings commenced. The Centre for Child Law, along with KL and other applicants, challenged section 154(3) of the Criminal Procedure Act 51 of 1977, which protected the anonymity of child accused and witnesses but not child victims. They also sought ongoing protection beyond the age of 18. Media houses opposed, arguing that reporting could occur without restriction once KL turned 18, and that ongoing protection would unjustifiably limit freedom of expression and open justice.

• Does section 154(3) of the Criminal Procedure Act unconstitutionally exclude child victims from anonymity protection in criminal proceedings?
• Does section 154(3) violate the right to equality by differentiating between child accused, witnesses, and victims?
• Does section 154(3) infringe the best interests of the child, dignity, and privacy rights by failing to protect child victims?
• Should anonymity protection afforded by section 154(3) extend beyond the age of 18 (ongoing protection)?
• How should competing constitutional rights—freedom of expression, open justice, best interests of children, dignity, and privacy—be balanced?
• What is the appropriate remedy: confirmation of invalidity, reading-in, and suspension?

1. The Supreme Court of Appeal's declaration of invalidity regarding child victims was confirmed. 2. Leave to appeal on ongoing protection was granted and the appeal upheld. 3. Section 154(3) was declared constitutionally invalid to the extent protection does not extend beyond age 18. 4. The declaration was suspended for 24 months. 5. Pending parliamentary remedy, section 154(3) was read to include victims and a new subsection (3A) providing ongoing protection subject to consent or court order. 6. If Parliament does not remedy the defects within 24 months, the interim reading-in continues. 7. Each party to pay its own costs.

1. Section 154(3) of the Criminal Procedure Act violates section 9(1) of the Constitution by irrationally differentiating between child accused/witnesses and child victims, offering no legitimate government purpose for the exclusion. 2. The exclusion of child victims infringes the best interests of the child (section 28(2)), dignity (section 10), and privacy (section 14), and this limitation is not justified under section 36. 3. The failure to provide ongoing anonymity protection beyond age 18 violates the best interests of children, dignity, and privacy because the threat and anticipation of future identification harms children while they are still minors. 4. The purpose of section 154(3) is child protection; its protective function extends to shielding children from the harmful effects of anticipated future disclosure. 5. Default ongoing protection with consent-based or court-supervised exceptions represents a less restrictive means of achieving the legitimate purposes of freedom of expression and open justice while adequately protecting children's constitutional rights. 6. The limitation on freedom of expression and open justice caused by anonymity protection is minimal, as media can fully and accurately report without disclosing identities. 7. Courts may use suspended declarations of invalidity coupled with interim reading-in as appropriate constitutional remedies, respecting separation of powers while protecting vulnerable groups.

Mhlantla J emphasised the importance of restorative justice for child accused, noting that ongoing protection facilitates rehabilitation and reintegration. The judgment discussed stigma and shame associated with victimhood, witnessing crime, and offending, noting that default anonymity empowers individuals with agency to decide when to share their stories. The Court noted the 'ticking-clock effect' whereby fear of imminent disclosure upon turning 18 may compromise children's participation in proceedings and the quality of justice. Cameron J and Froneman J in their partial dissent cautioned against using state power to limit knowledge and emphasised that perpetuating anonymity may reinforce stigma rather than challenge it. They argued that society should err on the side of openness and combat stigma directly rather than through enforced silence. They expressed concern that the NM v Smith approach to HIV/AIDS may have inadvertently contributed to silence and stigma. Jafta J observed that section 28 rights are confined to persons under 18 and cannot be extended to adults through interpretation. He noted that the absence of a statutory provision does not itself constitute a limitation of rights, and that Parliament is the appropriate institution to extend protection through legislation. He emphasised that courts may only invalidate legislation where there is actual inconsistency with the Constitution, not merely where a broader protective scheme might be desirable.

This landmark judgment significantly expands anonymity protection for children in the criminal justice system. It affirms that child victims deserve equal protection to child accused and witnesses, addressing a serious lacuna in the law. The judgment establishes that the best interests of the child principle can justify limitations on freedom of expression and open justice. It introduces a default position of ongoing anonymity protection into adulthood, recognising that childhood trauma and stigma persist beyond age 18. The case demonstrates the Court's willingness to use interim reading-in to protect vulnerable groups while respecting parliamentary law-making. It emphasises restorative justice, agency, and the need to combat stigma. The judgment balances competing constitutional values and places the burden on media houses rather than child victims to seek court orders regarding publication.