Cape Town - The Women’s Legal Centre (WLC) has launched a high court application challenging the constitutionality of certain provisions of the Criminal Procedure Act (CPA) which prohibits the publication of information relating to a person accused of sexual offences before they plead to the charges.
WLC filed the constitutional challenge against the Minister of Justice and Correctional Services Ronald Lamola.
This follows a year after a court case in which a Khayelitsha man accused of a sexual offence, launched an application in terms of the Protection from Harassment Act on the basis that an Athlone activist Caroline Peters publicly identified him by name and posted his details on social media before he pleaded.
The accused also laid criminal charges against Peters for contravening the provisions of the CPA.
While the Khayelitsha Magistrate’s Court granted the accused an interim order in December, it dismissed it, after he missed court.
The man is listed as a second respondent in the application.
Peters is seeking a high court order declaring unconstitutional and invalid section 154(2) (b) read with sub-section 153(3)(a) and 154(5) of the CPA.
Currently, the publishing of such details constitutes a criminal offence and on conviction carries the potential of a fine, or imprisonment for a period not exceeding three years, or both.
WLC said that this prohibition silenced women and their supporters who speak out against sexual violence and that the constitutional challenge forms part of its work, which challenges the current laws that continue to silence women and their supporters.
Peters, who is an applicant, said section 154(2) (b) of CPA appeared to be aimed at protecting the identity of an accused at the expense of the rights and freedoms of the victims and complainants in respect of the offences.
She said this protection was not extended to people accused of murder, attempted murder, culpable homicide, robbery, assault, fraud and other offences.
“Likewise, the victims and complainants in respect of such crimes are not at risk of criminal prosecution if they expose the identities of the persons accused before such accused have pleaded.
“In the circumstances, I believe, the section is unconstitutional in that it unjustifiably infringes a number of my constitutional rights, especially my right to freedom of expression, and serves to silence victims’ communities in those who support victims of sexual violence.
“Moreover, it constitutes unfair discrimination because the vast majority of victims of crimes of sexual offences who wish to name the assailant are women,” she said.
Peters said naming an accused charged with a sexual offence before he pleads, among others, served to enhance investigations and alert other witnesses who were unaware that a sexual offence had taken place, but have evidence that could be brought forward.
The department was approached for comment but could not confirm whether Minister Lamola intended on opposing the application.