A landmark courtroom battle over the controversial ‘no-name law’ – a provision that makes it a criminal offence to publish the identity of a person accused of a sexual offence before they have formally pleaded in court – began in the Western Cape High Court yesterday.

The matter is being heard before a full Bench comprising Judge Andre Le Grange, Judge Mas-udah Pangarker and Acting Judge Pinda Njokweni. 

News24 reports that the Women’s Legal Centre (WLC) is challenging sections of the Criminal Procedure Act (CPA), arguing that the law silences survivors of sexual violence. The application has been brought by gender-based violence activist Caroline Peters of the Callas Foundation, who is represented by the WLC.

Peters, whose work involves assisting victims of sexual violence, was charged after she identified an accused rapist on social media following a court appearance in Wynberg, Cape Town.

In August 2021, Peters became aware that the accused had been charged with rape. During October and November 2021, she accompanied the complainant to appearances in the Wynberg Magistrate’s Court. After the court appearances, Peters posted photographs of the accused’s back and the court roll on Facebook.

On both occasions, the accused had not yet pleaded. The accused subsequently laid a criminal complaint against her for allegedly contravening section 154(2)(b) of the CPA.

At the heart of the case in the High Court are two provisions of the CPA.

Peters is challenging the constitutional validity of section 154(2)(b), which prohibits the publication of any information relating to a charge involving a sexual offence (or extortion) before the accused has pleaded, and section 335A, which prohibits the publication of the identity of persons towards or in connection with whom a sexual offence has been committed.

Under the current law, identifying a sexual offence accused before they plead guilty or not guilty carries a potential fine or up to three years’ imprisonment.

News24 notes that counsel for Peters, Ashleigh Christians, told the court that the Justice Minister’s primary defence is that not revealing the identity of an accused person has inherent value in protecting the integrity of the criminal justice process.

Christians argued that publishing the accused’s identity could, in fact, assist investigations by alerting other victims.

Le Grange probed whether publication before identification procedures are completed could compromise the fairness of a trial.

‘That is a legitimate concern. However, for other serious offences, assault, robbery and murder, there is no equivalent prohibition. The trial court assesses witness credibility and any prejudice caused by prior publication. There is no blanket ban in those matters,’ Christians responded.

News24 notes that Le Grange emphasised the broader societal context.

‘We see these cases daily. Why should a short ban not be rationally justified in sexual offence cases to protect the integrity of identification procedures?’ he asked. ‘We cannot ignore practical reality. Once a person’s identity is exposed – especially on social media – it spreads instantly and irreversibly.’

In her heads of argument, Justice Minister Mmamoloko Kubayi rejected the contention that the provisions were enacted to shield perpetrators. 

News24 notes that she argued that the purpose of the law is, and always has been, to protect complainants. The Minister further submitted that most sexual offences occur within close relational proximity, meaning that publishing information about the charge – including the identity of the accused – can easily lead to identification of the complainant.

‘There is simply no evidence to support the conclusion that section 154(2)(b) serves to protect the identity of male perpetrators,’ her papers stated.

She maintained that the law imposes a temporary, not permanent, restriction and includes judicial safeguards allowing publication bans to be lifted in appropriate circumstances. The matter continues today.

Full News24 report