Court challenge argues law protecting accused sexual offenders is unconstitutional

The Western Cape High Court has heard a constitutional challenge to laws that prohibit identifying accused sexual offenders before they enter a plea.

The challenge is linked to a case involving Callas Foundation founder Caroline Peters, who faces a potential criminal charge for allegedly contravening the Criminal Procedure Act.

The case stems from a court photo shared online

According to the Women’s Legal Centre, Peters attended a rape hearing in a regional court to support a survivor.

During the proceedings, before the accused had entered a plea, Peters took a photograph of the court roll showing the accused’s name and another photo from behind.

She later posted the images on social media.

Advocate Bronwyn Pithey said in an interview on CapeTalk that the action technically contravened a section of the Criminal Procedure Act.

“That section says that you may not name an accused sexual offender or an accused extortionist before they have pleaded,” Pithey explained.

The rule applies from the moment an accused first appears in court until they enter a plea, a process that can take years.

Lawyers argue the law is irrational and unconstitutional

The Women’s Legal Centre is challenging the constitutionality of the provisions, arguing they are irrational and overly broad.

Pithey said the restriction applies only to sexual offences and extortion, while accused people in other serious crimes can be identified publicly once they appear in court.

“In other words, when anyone is accused of murder or robbery, once you’re in court, the media and anyone else may publish details about the offence and the accused’s name,” she said.

The organisation argues that the law limits freedom of expression and equality rights.

It also challenges another provision that prevents complainants from identifying themselves or giving the media permission to name them.

Minister argues law protects complainants

The challenge is directed at the Minister of Justice, who is responsible for the legislation.

Pithey said the minister’s defence is that the provisions exist to protect complainants in sexual offence cases.

However, the Women’s Legal Centre argues that other laws already provide specific protections for complainants, making the current restrictions unnecessarily broad.

Pithey said preventing the naming of accused people may also discourage other victims from coming forward.

“To name an accused rapist like you name any other accused person before they’ve pleaded assists investigations,” she said.

“It assists other complainants or victims to come forward if they know somebody has been accused.”

Judgment expected within months

Arguments in the Western Cape High Court concluded after two days of hearings.

The court is expected to deliver judgment within about three months.

Regardless of the outcome, the matter will likely proceed to the Constitutional Court for confirmation or appeal.

Meanwhile, the National Prosecuting Authority has not yet decided whether to proceed with criminal charges against Peters.

Pithey said the uncertainty has persisted for years.

“This happened three years ago, and we still don’t know,” she said. “There is always that threat.”

For more information, listen to Pithey using the audio player below: