In 2015, the story of “Zephany Nurse” captured the hearts and minds of South Africans. Zephany was stolen at birth. Her distraught parents did everything they could to find her, but failed. She grew up happy, in a loving home, totally unaware. Then, when she was 17, a younger girl at her school noticed an uncanny resemblance between the two of them. They were sisters. The truth emerged.
Zephany’s mother — the woman who raised her — was arrested and a criminal trial ensued shortly before Zephany’s 18th birthday.
There was, of course, a “media furore”, as the Constitutional Court put it. And in the course of the criminal process, it emerged that there was a gap in the law: although the Criminal Procedure Act protects the identities of children when they are accused of crimes and when they are witnesses to crimes, it does not protect them when they are victims or survivors of crimes.
The protection afforded by the Act also cuts off at age 18 — so even were the courts to have treated Zephany like other child witnesses, this would only last a few months. Her lawyers, the Centre For Child Law, wrote to all the big media houses asking for an undertaking that they would protect her identity. It was not provided, so they went to court. Three big media houses — Media 24, Independent Newspapers and Times Media — fought tooth and nail, all the way to the Constitutional Court.
On Wednesday, the court found that the law’s unequal treatment of child accused and child witnesses, on the one hand, and child victims on the other, was unconstitutional.
Justice Nonkosi Mhlantla said that the purpose of the law was to protect children. Child victims “experience a particular type of vulnerability” that also warranted protection and this was in line with the “protective purpose of the impugned position”.
There was no legitimate government purpose in excluding child victims, and even the minister and national director of public prosecutions agreed. The differentiation infringed her right to equality, to privacy, to dignity and went against the injunction that in any matter concerning a child, its best interests must be protected.
Mhlantla acknowledged the importance of the principle of open justice and the media’s right to freedom of expression, but said it was already encroached upon by the law as it stood. “The inclusion of victims only marginally expands this encroachment,” she said.
On this finding, Mhlantla’s judgment had the backing of the whole court. It was also the view of the high court and the Supreme Court of Appeal. But when it came to extending that protection beyond the age of 18, the justices differed.
Mhlantla, for the majority, held that the protection should continue because it would be harmful for the child knowing and anticipating that their name could be disclosed at a later stage. “It is not in the best interests of the child to live in fear that their identity and involvement can be exposed once they turn 18”.
“The experts show that the risk of identification into adulthood can undermine the long-term healing process of victims, witnesses and accused and lead to re-traumatisation and hinder rehabilitation.” It was also in line with the principles of restorative justice, she found.
Mhlantla differentiated between the public interest and what was interesting to the public. “Public interest can still be served without revealing the names and identities of the children,” she found.
The ongoing protection did not amount to a blanket ban — it was a “default position”, which the media could apply to a court to change. This was “a subtle intrusion into the domain of freedom of expression and open justice”.
It was on this “narrow” issue of what the default position should be that Justices Edwin Cameron and Johan Froneman disagreed. They said that they would tilt the balance in favour of open justice. “Secret court proceedings, unnamed witnesses, shrouded documents: these are anathema to the judicial process.”
An additional reason for eschewing anonymity was not to feed into societal stigma — “there should be no stigma in being a victim of a crime. No shame in being a witness to a crime,” they held.
Mhlantla agreed, but said “unfortunately, society at large has in many ways betrayed those who have survived or witnessed violence, be it sexual, physical or psychological. Social contexts have shaped how survivors judge themselves and how they are judged by others.”
She added that what was crucial was agency — “we should not ascribe if, how or when a person should be prepared to share their experiences with the public”.
As it happened, after the Constitutional Court heard argument but before judgment was handed down, Zephany Nurse came out publicly and revealed her name. She is Miché Solomon.