Sexual Offences Time Limit Declared Unconstitutional

Sexual Offences Time Limit Declared Unconstitutional

On 14th June 2018, almost a year after a High Court’s decision, the Constitutional Court of South Africa confirmed that a section of the Criminal Procedure Act (CPA) is unconstitutional.  This unconstitutional section imposes a 20-year limit on the prosecution of certain sexual assault offences.

Before this long-running court battle, any sexual crime besides rape or compelled rape would prescribe after 20 years, meaning sexual crimes other than rape or compelled rape could not be prosecuted if 20 years have passed.

This precedent-setting ruling was the final hurdle sexual assault victims had to jump, to allow them to open up criminal cases against their perpetrators; even decades after these incidents took place.

This is an important development as many sexual abuses happen against children at a very young age, and only at a later stage in life do they understand what actually occurred.   It also usually takes victims of abuse awhile to come to terms with their abuse before they report it to the authorities.  

The short facts of this ground-breaking case are as follows:

Eight children who were victims of child molestation‚ allegedly by Sidney Frankel‚ attempted to lay criminal charges against him in 2015.

They claimed that the late billionaire sexually assaulted them in the 1970’s and ‘80’s more than 20 years ago‚ when they were all aged between seven and fifteen years.

The Directorate of Public Prosecutions in Gauteng declined to prosecute him because of the 20-year time limit stipulated in Section 18 of the CPA.

After the refusal to prosecute from the Directorate of Public Prosecutions, the group now called the Frankel 8, approached the High Court to declare Section 18 of the CPA unconstitutional.  The Court found in their favour in June 2017.

Judge Claire Hartford ruled that children and adults should be allowed to lay charges of sexual and indecent assault at any time after they were abused.

The Frankel 8 went further and approached the Constitutional Court asking the Court to confirm the lower Court's Order.  

In a unanimous judgment by 10 Judices‚ the Constitutional Court on 14 June 2018 confirmed the High Court’s order that section 18 was irrational and arbitrary‚ and therefore unconstitutional‚ insofar as it did not afford the survivors of sexual assault other than rape or compelled rape the right to pursue a charge‚ after a lapse of 20 years from the time the offence was committed.

The Court suspended the declaration of constitutional invalidity of the section for 24 months to allow Parliament to remedy the constitutional defect.

“During the period of suspension Section 18(f) of the Criminal Procedure Act is to be read as though the words 'and all other sexual offences whether in terms of common law or statute' appear after the words 'the Criminal Law (Sexual Offences and Related Matters) Amendment Act‚ 2007‚ respectively'."

“Should Parliament fail to enact remedial legislation within the period of suspension‚ the interim reading-in remedy shall become final‚” the judgment read.

The ruling has been widely celebrated by child abuse and human rights organisations.

 

Roua Pienaar

Candidate Attorney