- The High Court must decide whether sexual offence publication bans unlawfully criminalise naming an accused before plea and prevent complainants from revealing their own identities.
- Caroline Peters argues the law silences survivors and shields accused persons, making parts of the Criminal Procedure Act unconstitutional.
- The Minister agrees that complainants should be allowed to speak, but disputes that the provisions were designed to protect perpetrators.
When Caroline Peters accompanied a rape complainant to the Wynberg Magistrates’ Court in 2021, she says she was supporting a woman navigating a deeply personal and traumatic process. The accused had not yet pleaded.
After Peters later posted photographs of the accused from behind and shared the court roll on social media, she was charged with contravening Section 154(2)(b) of the Criminal Procedure Act 51 of 1977. The criminal proceedings against Peters have not been finalised and are effectively stayed pending the outcome of the constitutional challenge before the High Court.
In the matter before the High Court in the Western Cape, Peters is cited as the applicant. The Minister of Justice and Correctional Services is the first respondent.
The Trustees for the Time Being of the Media Monitoring Africa Benefit Trust and Campaign for Free Expression NPC have been admitted as intervening applicants. The Clooney Foundation for Justice was admitted as amicus curiae.
Peters challenges the constitutional validity of Sections 154(2)(b) and 335A of the Criminal Procedure Act. In her written submissions, she states that she challenges “the constitutional validity of the following two sections of the Criminal Procedure Act 51 of 1977, both of which concern the publication of information relating to sexual offences.”
The legislative framework
Section 152 of the Criminal Procedure Act provides that criminal proceedings take place in open court. Section 153 permits a court, in matters involving sexual offences and extortion, to direct that proceedings be held behind closed doors at the request of the complainant.
A criminal trial commences once the accused pleads in terms of Section 105, read with Section 106. Before plea, Section 154(2)(b) prohibits publication of “any information relating to the charge” in matters referred to in Section 153(3). Section 154(5) makes contravention of that prohibition a criminal offence.
Section 335A prohibits publication of information that might reveal the identity of a complainant in sexual offence matters from the date on which the offence was allegedly committed until the prohibition in Section 154(2)(b) begins, unless authorised by a magistrate.
The applicant’s case
Peters contends that Section 154(2)(b), read with Section 154(5), “criminalises the publication of the identity of a person charged with committing a sexual offence before such person has pleaded to the charge.” She argues that to the extent the provision protects the identity of the accused before plea, it limits constitutional rights, including freedom of expression and open justice.
She maintains that even if amended to allow a complainant to reveal her own identity, the Section would still “continue to prohibit and criminalise the publication of the accused’s identity before he has pleaded.”
She further submits that Sections 154(2)(b) and 335A “criminalise the publication of any information that might reveal the identity of a victim of a sexual offence even where such victim voluntarily discloses her own identity or authorises another person to do so.”
She acknowledges “the inherent utility” of Section 335A insofar as it seeks to protect the identity of victims of sexual offences. However, she argues that denying a complainant the ability to reveal her own identity is unconstitutional.
Referring to the legislative history, she submits that limiting a complainant’s autonomy is “tantamount to silencing women ‘for their own good’ and is unjustifiable.”
The Minister’s response
The Minister of Justice and Correctional Services disputes that the impugned provisions were enacted to protect accused persons. The Minister maintains that Section 154(2)(b) operates as a temporary prohibition before plea and serves to protect complainants from identification.
The Minister relies on legislative history tracing back to earlier criminal procedure legislation and on statistical evidence indicating that many sexual offences occur within close relational proximity, such that identifying the accused may indirectly reveal the identity of the complainant.
In a further answering affidavit, the Minister accepts that the provisions are constitutionally defective to the extent that they prevent complainants from revealing their own identities. It is acknowledged that since the purpose of Section 154(2)(b) is to protect victims, “it is irrational that the section does not allow victims to reveal their own identity.”
The broader constitutional challenge is opposed. The intervening applicants challenge the inclusion of extortion within the publication framework. The Minister accepts that the prohibition may be overbroad in relation to extortion and abides by that part of the challenge.
What the court must decide
The High Court must determine whether Section 154(2)(b) prohibits publication of the identity of an accused charged with a sexual offence before plea and whether that prohibition is consistent with the Constitution.
The court must also decide whether Sections 154(2)(b) and 335A are inconsistent with the Constitution insofar as they prevent complainants from revealing their own identities.
As cited in the applicant’s submissions: “A thorough investigation of the constitutional status of a legislative provision is obligatory in confirmation proceedings. This is so even if the proceedings are not opposed, or even if there is an outright concession that the section under attack is invalid.”
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