S v P – The Abuse of Protection Orders to "Gag" Victims of Rape





Rape, gag-order, protection order, harassment


In recent years there has been the emergence of global and local anti-gender-based violence movements such as #MeToo and, in South Africa, #menaretrash, which has precipitated an increase in the disclosure of the names of the alleged perpetrators of sexual violence by the survivors. The increase in the disclosure of these names has been met with the intensification of legal processes by alleged perpetrators to counter and silence survivors.

This case note will focus on the recent appeal case of S v P 2022 2 SACR 81 (WCC) in the High Court of South Africa, Western Cape Division, in Cape Town. In this case the court had to consider whether the court a quo was correct in issuing a final protection order (in terms of the Protection from Harassment Act 17 of 2011) against the appellant (S) where the court a quo found that her act of harassment was a third party's public disclosure of the respondent (P) as her rapist.

It will be argued that the Western Cape High Court was correct in finding that the court a quo should not have issued a final protection order against S. It will be further argued that the reasons to overturn this decision included the court a quo's failure to appreciate the gendered purpose of the Protection from Harassment Act and that P misused and abused the Act in order to silence S. It will then be argued that one of the reasons why survivors choose to disclose alleged perpetrators' names on social platforms is a societal contextual reason, which includes the high rates of gender-based violence in South Africa alongside the high rates of attrition in gender-based violence cases in the criminal justice system.

Finally, I will consider the cases of Mdlekeza v Gallie 2021 (WCHC) (unreported) case number 15490/2020 of 20 April 2021 and Booysen v Major (WCHC) (unreported) case number 5043/2021 of 30 August 2012 and argue that these cases are further examples of this abuse of process employed to silence survivors. With the courts seeing an increase in these applications to silence victims, it is argued that the courts must adopt a feminist-contextualised approach in order to avoid gagging survivors of gender-based violence and being complicit in the increasing weaponisation of court processes by alleged perpetrators.


Download data is not yet available.


Metrics Loading ...




Artz L "Better Safe than Sorry: Magistrates' Views on the Domestic Violence Act" 2004 SACQ 1-8

Hohl K and Conway MA "Memory as Evidence: How Normal Features of Victim Memory Lead to the Attrition of Rape Complaints" 2017 Criminology and Criminal Justice 248-265 DOI: https://doi.org/10.1177/1748895816668937

Leskinen EA, Cortina LM and Kabat DB "Gender Harassment: Broadening Our Understanding of Sex-Based Harassment at Work" 2011 Law & Hum Behav 25-39 DOI: https://doi.org/10.1007/s10979-010-9241-5

Miller AL "Expertise Fails to Attenuate Gendered Bias in Judicial Decision-Making" 2018 Social Psychological and Personality Science 227-234 DOI: https://doi.org/10.1177/1948550617741181

Nana CN "Sexual Harassment in the Workplace in South Africa: The Unlimited Vicarious Liability of Employers?" 2008 JAL 245-267 DOI: https://doi.org/10.1017/S0021855308000119

Pithey B "The Personal is the Political: Disclosure of Rape Complainants Personal Records" in Smythe D (ed) Should We Consent? Rape Law Reform in South Africa (Juta Cape Town 2008) 99-120

South African Law Reform Commission Issue Paper 42, Project 100 - Domestic Violence: The Criminal Law Response (SALRC Pretoria 2021)

South African Law Reform Commission Project 130: Report on Stalking (SALRC Pretoria 2006)

Smythe D Rape Unresolved: Policing Sexual Offences in South Africa (UCT Press Cape Town 2015)

Snyman CR Criminal Law Workbook (Juta Cape Town 2013)

Swemmer S "Justice Denied? Prosecutors and Presiding Officers' Reliance on Evidence of Previous Sexual History in South African Rape Trials" 2020 SACQ 2020 45-56 DOI: https://doi.org/10.17159/2413-3108/2020/vn69a6380

Swemmer S "Sexual Harassment as an Everyday Form of Gender-Based Violence" in Leal Filho W et al (eds) Gender Equality (Springer Cham 2021) 1027-1036 DOI: https://doi.org/10.1007/978-3-319-95687-9_49

Suran E "The Practice of Name Suppression" 2015 Women Lawyers Journal 48-61

Weisbrot S "The Impact of the MeToo Movement on Defamation Claims Against Survivors" 2020 Cuny Law Review 332-363

Case law

Booysen v Major (WCHC) (unreported) case number 5043/2021 of 30 August 2012

Levenstein v Estate of the Late Sidney Lewis Frankel 2018 8 BCLR 921 (CC)

Mdlekeza v Gallie (WCHC) (unreported) case number 15490/2020 of 20 April 2021

P v S (Magistrates' Court for the District of the Cape) (unreported) case number H1029/2019 of 26 November 2020

S v Jackson 1998 4 BCLR 424 (SCA) DOI: https://doi.org/10.1093/nq/s4-XI.282.424i

S v P 2022 2 SACR 81 (WCC)

Tshabalala v S 2020 3 BCLR 307 (CC)

Venter v S (779/2018) [2021] ZASCA 21 (18 March 2021)


Children's Act 38 of 2005

Constitution of the Republic of South Africa, 1996

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007)

Criminal Procedure Act 51 of 1977

Cybercrimes Act 19 of 2020

Domestic Violence Act 116 of 1998

Prescription Act 68 of 1969

Protection from Harassment Act 17 of 2011

Government publications

Protection from Harassment Bill [B1-2010]

Internet sources

Bauer-Wolf J 2018 A College's List of Alleged Rapists https://www.insidehighered.com/news/2018/01/30/metoo-movement-inspires-similar-campaigns-among-colleges accessed 26 September 2022

Centre for Applied Legal Studies 2020 Submission to the Department of Justice and Correctional Services on the Domestic Violence Amendment Bill https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/programmes/gender/CALS%20submission%20Domestic%20Violence%20Amendment%20Bill%202020.pdf accessed 22 September 2022

Dayile Q 2021 More Women Accusing Jub Jub after Amanda Du Pont's Statment: 'I Was Raped for Two Years by Him https://www.news24.com/drum/celebs/news/more-women-accusing-jub-jub-after-amanda-du-ponts-statement-i-was-raped-for-two-years-by-him-20211203 accessed 22 September 2022

Jones M 2021 I Will Never Report My Rape' - 3 Women Tell Us Why They Won't Go to Police https://www.news24.com/life/Wellness/Mind/i-will-never-report-my-rape-3-women-tell-us-why-they-wont-go-to-the-police-20210216 accessed 22 September 2022

Kelly C 2023 The Personal is Political https://www.britannica.com/topic/the-personal-is-political accessed 31 March 2023

Machisa M et al 2011 War at Home https://www.saferspaces.org.za/uploads/files/GenderLinks-13452_begin_war_at_home.pdf accessed 22 September 2022

Machisa M et al 2017 Rape Justice in South Africa: A Retrospective Study of the Investigation, Prosecution and Adjudication of Reported Rape Cases from 2012 http://dx.doi.org/10.13140/RG.2.2.16983.37289 accessed 22 September 2022

Pheto B 2021 "Tantamount to a Gagging Order": Judge Dismisses Mamma Jackie's Urgent Case https://www.timeslive.co.za/news/south-africa/2021-12-28-tantamount-to-a-gagging-order-judge-dismisses-mama-jackies-urgent-case/%20accessed%20on%2022%20September%202022/ accessed 26 September 2022

Parliamentary Monitoring Group 2010 Response to Remarks and Questions by the Portfolio Committee on the Justice and Constitutional Development on the Protection from Harassment Bill https://pmg.org.za/committee-meeting/12394/ accessed 22 September 2022

Samanga R date unknown The Real Story Behind menaretrash, South Africa's Response to Domestic Violence https://www.okayafrica.com/real-story-behind-menaretrash-south-africas-viral-hashtag/ accessed 26 September 2022

Socio-Economic Rights Institute of South Africa 2022 Yolanda Dyantyi v Rhodes University and Others 846/2020 https://www.youtube.com/watch?v=ycee6xQWuMQ accessed 26 September 2022

Staff Reporter 2018 RUReferenceList: The Fear of Repercussions Still Lingers https://mg.co.za/article/2018-07-06-00-rureferencelist-the-fear-of-repercussions-still-lingers/ accessed 26 September 2022


Fennell E A Promising Young Woman (United States of America 2020)



How to Cite

Swemmer, S. (2023). S v P – The Abuse of Protection Orders to "Gag" Victims of Rape. Potchefstroom Electronic Law Journal, 26, (Published on 20 June 2023) pp 1 – 28. https://doi.org/10.17159/1727-3781/2023/v26i0a14640



Case Notes

Similar Articles

1 2 3 4 5 6 7 8 9 10 > >> 

You may also start an advanced similarity search for this article.