The first judgment penned by Mhlantla J and concurred in by Mogoeng CJ, Khampepe J, Ledwaba J, Madlanga J, Nicholls J and Theron J, held that the overarching purpose of section 154(3) of the CPA is child protection; protection from the potentially harmful effects of publication of their names and identities as a result of being implicated in criminal proceedings. Since this protection is only afforded to child accused and witnesses, there is a lacuna in the law as it pertains to protecting child victims in criminal proceedings. The first judgment held that the exclusion of child victims in section 154(3) limited the right to equality, as it constitutes an arbitrary differentiation that does not offer equal protection and benefit of the law. This lacuna also infringes the best interests of the child and their rights to privacy and dignity, which limitations were neither reasonable nor justifiable. It declared section 154(3) constitutionally invalid to the extent that it does not protect the identity of child victims in criminal proceedings. Accordingly, the declaration of invalidity was confirmed. Parliament was given 24 months to cure the defect. In the interim, a reading-in to section 154(3) was made.
May 15, 2023
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