#DrosRape – Time to review the law protecting rape accused

The horrific rape of a little girl in a Pretoria restaurant has shaken our country to its core. Two weeks after the incident South Africans are still shocked, angry, heartbroken and in despair. In a country where more than 60 children are sexually assaulted daily, residents have reached boiling point. The appalling act of raping a minor in a restaurant has sparked a host of emotions in all of us. Those of us who have not been through that experience will never truly understand the hurt of those affected.

Our people are in pain.

Our communities want to name, shame and punish the accused. Lamenting about the legality of doing so almost feels insensitive. It feels as if we should keep technical questions on the backburner.

In an opinion piece titled “Dros rape: Media must strive to minimise harm,” Media Monitoring Africa’s William Bird points out that the media focused greatly on legal technicalities in reporting on the incident. “The focus on the perpetrator and his identity and the anger take away from what arguably should be the focus – the rape of a seven-year-old girl,” he rightly stated.

That being said, these tragic events have placed the spotlight on an issue that has to be addressed: the constitutionality of sections 153 and 154 of the Criminal Procedure Act.

It bars citizens from identifying someone accused of a sexual offence or extortion before that person has pled to the charges. Those accused of murder, fraud or robbery do not have similar identity protection.

The same provisions prohibit the identification of minor crime victims. This makes sense. Minor perpetrators should not be identified and our courts may order that the names of state witnesses remain undisclosed to the public. These rules are fair and justifiable as it shields the vulnerable.

However, sections 153 and 154 go the extra mile in drawing a veil over extortion and sexual offence cases:

154(2)(b) “No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153 (3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question.”

In other words, no information relating to these cases may be published before accused have pleaded.

We need to ask whether this is justifiable.

In 2018 this prohibition is an anachronism – painfully out of place in our society. #MeToo, an international movement, called on sexual offence victims to tell their stories. The world vowed to hold the guilty accountable. Society wants them exposed. According to the latest crime statistics, the SAPS receives 62 complaints of sexual offences against children daily.

Yesterday, 20-year-old Nicholas Ninow appeared in court for the Dros rape. The magistrate allowed the media to photograph him, but publication of the images was not authorised. National Prosecuting Authority spokesman Luvuyo Mfaku recited sections 153 and 154, but conceded that social media users and some media outlets had already identified Ninow.

“The horse has bolted,” he said.

South Africans have expressed their opposition to these sections by contravening them. Ninow’s photos and personal information was “out there.” In light of the circumstances, editors used their discretion and many decided to republish his name and image.

A recently published book, The Lost Boys of Bird Island makes allegations of sexual offences and extortion against former government officials. These two offences are often committed hand-in-hand. A person who rapes will likely employ extortion to keep his crimes a secret. The book accuses former high-flying government officials of doing exactly that. Those implicated were never charged. Even if that were to have happened, sections 153 and 154 would have protected their identities.

All things considered, does it make sense to limit the right to freedom of expression in favour of sexual offence and extortion accused? Not to me.

Nonetheless, the fact that many of us disagree with these sections does not make them unenforceable. That will require an application to the Constitutional Court.

Only South Africa’s highest court may adjudicate over constitutional matters. The Concourt’s recent dagga ruling illustrates this. Before the law dealing with cannabis ended up there, it was the topic of a Western Cape High Court ruling that allowed the possession, cultivation and use of dagga at home for private purposes.

The constitutionality of South Africa’s firearm legislation was decided on by the same court earlier this year. This was preceded by a High Court in Pretoria application questioning the justifiability of two sections of the Firearms Control Act.

Time will tell which scenario will lead sections 153 and 154 of the Criminal Procedure Act towards constitutional scrutiny. I believe it is a question of “when” and not “whether” this will happen. Hopefully, this will be sooner than later.

Until then, we will have to abide by the law, even though its nonsensicality is illustrated by scenarios such as the Dros case.

Eloff is an admitted attorney, reporter and legal adviser for Caxton, The Citizen’s parent company

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