Pretoria - This year will see a constitutional challenge by the Women’s Legal Centre of certain provisions of the Criminal Procedure Act which places a prohibition on the publication of any information relating to people accused of sexual offences before the accused has pleaded to the charges.
The legal challenge follows criminal charges laid against Caroline Peters, who is represented by the centre. She is a gender and community activist who publicly identified a man accused of rape by posting his name on social media, after he appeared in Wynberg Magistrate’s Court on a charge of rape.
The accused had not yet pleaded to the charge.
Peters was supporting the rape complainant when she attended the court. The accused subsequently laid criminal charges against her for contravening the section of the Criminal Procedure Act, which criminalises the publication of this information before an 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).
It excludes any other offences, including serious offences such as murder, robbery, public violence, assault and fraud.
According to the Women’s Legal Centre, this distinction unjustifiably violates various sections of the Constitution – including freedom of expression – and constitutes indirect discrimination against women (who are primarily the victims of sexual violence).
It will be argued that this violates sections of the Constitution relating to the right to equality.
Currently, the publishing of any details of an accused facing sexual offence charges 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. It is 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, Peters said in court papers.
According to her, this case also highlights the compelling reasons to publish the details of such an accused before they have pleaded.
For example, it may assist further investigations to obtain vital evidence, encourage additional victims to come forward, and expose serial sex offenders, she said.
The constitutional challenge was filed in the Western Cape High Court against the Minister of Justice and Correctional Services.
The court will be asked to declare the various sections as unconstitutional and invalid, as well as to remove the prohibition of the publication of an accused’s details before he has pleaded.
Pretoria News