Victims of sexual abuse are often so deeply traumatised and intimidated that they either never report the crimes, or take decades to go to the police.
And that, until now, has been a major source of injustice in our legal system, because section 18 of our Criminal Procedure Act (CPA) provides that the right to prosecute crimes lapses after 20 years except for a specified list of serious offences – murder, treason, aggravated robbery, kidnapping, child stealing, rape/”compelled rape”, genocide/war crimes, people trafficking, and pornography involving children or mentally disabled people.
The end result has been that many desperate and vulnerable survivors of abuse have been deprived of their right to seek justice. Fortunately that has now changed.
A recent High Court judgment of L and Others v Frankel and Others (29573/2016) [2017] ZAGPJHC 140 involving accusations of sexual crimes over 28 years ago has had the result that, subject only to confirmation by the Constitutional Court, sexual offences can now be prosecuted at any time.
Allegations of habitual child sex abuse; and the law
Eight male and female applicants, who at the time of the alleged offences were children between the ages of 6 and 15 years, accused the man in question of having habitually “indecently and/or sexually assaulted” them in the 70s and 80s.
In terms of the CPA, the offences had prescribed by the time that, between June 2012 and June 2015, the applicants had acquired “full appreciation of the criminal acts committed by the [man]”, and they then opened a criminal case and instituted a civil claim against him.
The Director of Public Prosecutions declined to prosecute the cases (being barred by the CPA from doing so) and the applicants asked the High Court for help.
Having analysed in depth both the legal position and the many deep-seated causes of “delayed disclosure” by victims, the Court held that “section 18 is arbitrary and irrational and accordingly is inconsistent with the Constitution and invalid, in relation to not only children, but to all victims, including adults” in respect of “the right to institute a prosecution for all sexual offences”.
Although the declaration of invalidity was suspended for 18 months “in order to allow Parliament to remedy the constitutional defect”, the High Court ordered that in the interim, i.e. with immediate effect, the 20 year time limit falls away for “all other sexual offences, whether in terms of common law or statute”.
The civil case against the accused’s deceased estate (he died shortly before the hearing) will now no doubt also proceed, with another Court having previously held in respect of civil prescription “that a victim of child or sexual abuse who acquired an appreciation of the criminal act during adulthood is able to sue the abuser within three years of gaining that appreciation”.
