CAPE TOWN: 06 December 2022

The Women’s Legal Centre challenges the constitutionality of certain provisions of the Criminal Procedure Act which places a prohibition on the publication of any information relating to persons accused of sexual offences before the accused has pleaded to the charges.

This constitutional challenge follows criminal charges laid against Ms Caroline Peters. Ms Peters, who is represented by the Women’s Legal Centre, is a lifelong gender and community activist, publicly identified a man accused of rape by posting his name on social media after he appeared in Wynberg Court on a charge of rape. The accused had not yet pleaded to the sexual offence charge. Ms Peters was supporting the rape complainant when she attended at court. The accused thereafter laid criminal charges against Ms Peters for contravening section 154(2)(b) of the Criminal Procedure Act which criminalises the publication of this information before the accused has pleaded either guilty or not guilty.

The prohibition on the publication of any information relating to an accused, including their name and the charges they face, before they have pleaded is only applicable to cases of sexual offences and extortion (and similar offences to extortion), but not to any other offences, including serious offences, such as murder, robbery, public violence, assault, and fraud. This distinction unjustifiably violates sections 16(1)(a) and/or (b) of the Constitution (freedom of expression) and constitutes indirect discrimination against women (who are primarily the victims of sexual violence) and, thus, violates sections 9(1), (2) and (3) of the Constitution (the right to equality). As the discrimination is based on listed grounds – i.e. on the grounds of sex and gender – it is automatically unfair in terms of s 9(5) unless the State establishes that the discrimination is fair.

Currently, the publishing of any details of an accused (of a sexual offence) before he has pleaded constitutes a criminal offence and on conviction carries the potential of a fine, or imprisonment for a period not exceeding three years, or both. The consequences for both victims and their supporters who name a person accused of a sexual offence before they have pleaded is therefore extremely serious and ironic given that the law effectively protects the rights of those accused of a sexual offence over the rights victims and activists who speak out about sexual violence. This case also highlights the compelling reasons to publish the details of such an accused before they have pleaded, for example, it may assist in further investigations to obtain vital evidence, encourage additional victims to come forward, and expose serial sex offenders.

On Monday, 5 December 2022, the Women’s Legal Centre, representing Ms Peters as the applicant, filed a constitutional challenge in the Western Cape High Court against the Minister of Justice and Correctional Services. The Notice of Motion applies for an order declaring section 154(2) (b) read with section 153(3)(a) and section 154(5) as unconstitutional and invalid, as well as orders amending this section and section 335A to remove the prohibition of the publication of an accused details before he has pleaded.

The Women’s Legal Centre believes that this prohibition silences women and their supporters who speak out against sexual violence. This constitutional challenge forms part of the work of the Women’s Legal Centre which challenges the current laws that continue to silence women and their supporters; laws which are in stark contrast to government’s messaging of encouraging women and communities to speak out against the unacceptably high levels of sexual violence against women in South Africa.

Please below court papers:

  1. Index, Notice of Motion and Founding Affidavit 
  2. Rule 16A Notice

The Women’s Legal Centre is an African feminist legal centre that advances women’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.

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