Some people are wondering whether an accused person may be identified before he or she has appeared in court and pleaded. The short answer is no – she of he – to the extent to which she or he is an accused – may not be identified.

This follows from reading sub-section 154(2)(b) with sub-section 153(3) – and, if still in doubt, then by reading both with section 84(1).

Section 153(3) governs when a trial may be held “in camera” – excluding the pubic. This subsection is irrelevant for present purposes, except that it contains a list of offences. It is unnecessary to know or understand – save to note the the list of offences.
In this context (for the purposes of section 153(3)) the list identifies the offences in respect of which, if requested to by the relevant person, a court may order all people who are not necessary to the proceedings to leave the trial. It provides as follows:

In criminal proceedings relating to a charge that the accused committed or attempted to commit-
(a) any sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person;
(b) any act for the purpose of furthering the commission of a sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person; or
(c) extortion or any statutory offence of demanding from any other person some advantage which was not due and, by inspiring fear in the mind of such other person, compelling him to render such advantage,

the court before which such proceedings are pending may, at the request of such other person or, if he is a minor, at the request of his parent or guardian, direct that any person whose presence is not necessary at the proceedings or any person or class of persons mentioned in the request, shall not be present at the proceedings: Provided that judgment shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the other person concerned would not be
revealed thereby.

(emphasis added)

The list includes sexual offences (in subsections a & b) and extortion (in subsection c). Section 154(2)(b) of the Criminal Procedure Act (51 of 1977) states:

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.


Thus, no person may:
• Until an “accused has pleaded to the charge”;
• “publish in any manner whatever any information relating to [a sexual offence or extortion]”.
This is regrettably not as clear as it should be. It seems capable of an interpretation that it only prohibits the publication of special details, or the special or specific circumstances of the offence – allowing, for instance, for the accused to be named and for a crime to be specified – although, somehow in the abstract.
However, I am now sure that, as much as that appealed to me at one stage, it must be wrong. It must be wrong because there can be no way to name a person and a crime “in the abstract” – both names, the name of the person and the name of the crime are full of meaning – and are, “details”. If one is not yet persuaded, one should recall that the prohibition is against the publication of “any information relating to the charge”.

Could one, for instance, publish that Mr Jones is accused of some crime? Usually this would be meaningless, but, lets imagine a scenario where Mr X is famous or infamous – for any of the usual South African reasons. Could this amount to a detail of the charge? I believe even this would.

The argument here is both intuitive and technical. Intuitively, if it carries some meaning it would seem to qualify as a detail of the charge. This would be especially true when it becomes clear that the person who published the name refuses to say more – we would then immediately know that Mr Jones is charged with either a sexual offence or extortion. We would already know more that the section must have been designed to permit.

But if you are not persuaded by that argument, it will be helpful to note that a person’s identity is an essential part of any charge.
Section 84(1) provides:

Subject to the provisions of this Act and of any other law relating to any particular offence, a charge shall set forth the relevant offence in such manner and with such particulars as to the time and place at which the offence is alleged to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.

(emphasis added)

A charge must be directed at an identifiable accused – thus the identity of the accused is an essential part of the charge, and if essential, must certainly qualify as information relating to a charge.

In these circumstances, it must be that the law prohibits the publication of any information regarding an accused or his alleged offence, until he has pleaded, and that the name of the accused, the name of the offence, must qualify as components of the prohibited information.