Dissertation

Making a Case for the Continued Protection of Identity of Young Offenders Who Turn 18 During Criminal Proceedings under South African Law Compared with the Law of England and Wales

van der Walt, Adéle

2017

Overview

1.1 IntroductionIn South Africa child offenders are dealt with under the Child Justice Act. Prior to the implementation of the Child Justice Act and the ratification of the United Nations Convention on the Rights of the Child (CRC), South Africa never had a “…separate, selfcontained and compartmentalised system for dealing with child offenders.The Child Justice Act came into operation in April 2010 and the main features of the Act focus on special mechanisms, processes and procedures when children are in conflict with the law. The Act was designed to protect children and the emphasis is on reform and re-integration.However, on the issue of identification of child offenders by the media, the Child Justice Act cross references Section 154(3) of the Criminal Procedure Act which makes it an offence for any person to publish (in any manner) any information which reveals or may reveal the identity of an accused under the age of 18 years. The rule is not absolute – it is accompanied by a proviso that judicial officers may authorise the publication of as much information as he or she may deem fit if the publication thereof would in their opinion be just and equitable in the interest of any particular person.This section has become controversial, because the media interprets it to mean that identity protection falls away once the offender reaches the age of 18 years. Children’s rights lawyers take a different view, insisting that the protection of the identity of child offenders would be meaningless if it does not continue into adulthood. In South Africa, this dispute has given rise to a recent test case Centre for Child Law and others v Media 24 Limited and others. It is notable that the same issue has also been brought before the courts in England and Wales, creating an opportunity for mutual learning.The purpose of this mini-dissertation is to make a case for the continued protection of the identity of young offenders who turn 18 during criminal proceedings under South African Law, compared with the law of England and Wales. The scope of this mini-dissertation has been limited to only include child offenders and not child witnesses and to further focus on the publication of the identity of these child offenders in the media, rather than on closed proceedings for the protection of privacy.The central research question is whether a compelling case can be made for the continued protection of the identity of young offenders who turn 18 during criminal proceedings under South African Law. In order to support the central question, subsidiary research questions will include what the aim and scope is of the Child Justice Act, as set out in the pre-amble of the Act, does the breaching of the child’s right to the protection of his identity when he or she turns 18 during trial, leave space for the interpretation that the protection is absolute? How do the Constitution of South Africa and relevant domestic and international instruments apply to children and young offenders in conflict with the law? Can the continued application of the child’s right to privacy, dignity, the child’s best interest, limitation of rights and the competing rights of the media, be justified after the age of 18 years, when the young person is no longer a child? Although there has been a recent judgment7 in the High Court which goes against the case being made here, there will be an appeal and therefore the researcher is of the opinion that a case can still be made.

• Publisher: ProQuest Dissertations & Theses
• Subject: Birthdays / Case law / Childrens rights / Constitutional law / Criminal law / Criminal procedure / Criminal sentences / Criminology / Journalism / Jurisdiction / Juvenile offenders / Law / Legislation / Murders & murder attempts / Periodical literature / Periodicals / Privacy / Reconciliation / Restorative justice / Sex offenders / South African Studies / Stigma / Sub Saharan Africa Studies / Trials / Victimization
• ISBN: 9798380926508