Justice Ministry: Law prohibiting sexual assault survivors from identifying themselves unconstitutional

The Justice Minister’s legal team has admitted that laws stopping sexual‑assault survivors from identifying themselves are unconstitutional.

The concession was made in the Western Cape High Court on Wednesday in a case brought by the Women’s Legal Centre.

The Centre is challenging parts of the Criminal Procedure Act that made it a crime to name an alleged sexual offender before they have entered a plea.

Both the state and other legal groups now agree that the law should be changed as long as the identities of other victims remain protected.

Minister Mmamoloko Kubayi’s lawyers argued that it makes no sense to punish survivors for speaking publicly about their own cases or to criminalise people who identify them with their permission.

They say the law should be amended so survivors can legally choose to waive their anonymity.

One point of disagreement remains: whether the accused can be named before they plead.

Some of the intervening groups told the court that the total ban on naming the accused is unconstitutional because judges have no discretion to decide on a case‑by‑case basis.

But the Minister’s team insists courts do already have discretion in other parts of the law, including the power to close proceedings to protect minors, victims, or anyone who may be harmed if details are made public, and the ability to authorise publishing a victim’s identity when they apply for it.

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