Prosecuting sexual offences: ConCourt rules in favour of lifting expiry date
14 June 2018
In a victory for victims of sexual abuse, the Constitutional Court on Thursday confirmed the South Gauteng High Court in Johannesburg's ruling that lifted a 20-year "expiry date" on prosecuting sexual offences.
The High Court had previously declared Section 18 of the Criminal Procedure Act (CPA) unconstitutional, after it was challenged by the alleged victims of the late billionaire Sydney Frankel.
It said that Section 18 of the CPA was inconsistent with the Constitution and invalid, to the extent that it bars the right to institute a prosecution for all sexual offences - other than those listed in section 18 - after 20 years has passed since the time of the offence.
In an unanimous judgement delivered on Thursday, the Constitutional Court agreed with the High Court's conclusion that an "accused's right to a fair trial would be no more prejudiced in the prosecution of sexual offences after 20 years than his or her rights in a prosecution of rape or compelled rape after 20 years".
'Irrational and arbitrary and unconstitutional'
"The court accepted that the survivors of sexual assault face similar personal and social and structural disincentives when reporting these offences and that the harm caused by sexual offences is similar, regardless of whether it is the consequence of rape or other forms of sexual assault," the court said in a statement.
It said Section 18 was "irrational and arbitrary and therefore unconstitutional".
The court also said Section 18 did not afford the survivors of sexual assault, other than rape or compelled rape, the right to pursue a charge, after the lapse of 20 years from the time the offence was committed.
Eight people claimed they were sexually assaulted by Frankel as long ago as 30 years before his death.
They laid criminal charges in 2015, but the case never went ahead due to the limitation of the statute of prosecution. Frankel died of cancer in his Johannesburg home on April 13 this year. He was 68.
Under the present law, the right to initiate prosecution lapses after 20 years for crimes of sexual assault.
This, however, does not apply to other serious offences, like murder, treason, kidnapping, genocide, and rape.
Declaration of invalidity of 24 months should be suspended
The eight applicants had approached the court to have Section 18 of the CPA declared unconstitutional, arguing that the current limitation infringed on their right to dignity.
They were also lobbying for Section 18 to be struck down for adults, as well as children.
However, according to the Constitutional Court, Section 18 overemphasised the significance of the nature of the offence, at the expense of the harm it caused survivors.
It also failed to serve as a mechanism to protect and advance their interests, it said.
Further, the court said it penalised a complainant by preventing him or her from pursuing a charge, where the delay was caused by his or her inability to act.
"The court found that Section 18 undermines the state's efforts to comply with international obligation which impose a duty on the state to prohibit all gender-based discrimination."
The court said the declaration of invalidity for a period of 24 months should be suspended to allow Parliament to "cure" the constitutional defect.
During the suspension period, it said Section 18 should read: "and all other sexual offences whether in terms of common law or statute" should appear after the words "the criminal law (Sexual offences and related matters) Amendment Act, 2007, respectively".
Should Parliament fail to enact remedial action within 24 months from June 14, 2018, the interim reading would become final, it said.
The court has also dismissed the Estate's appeal against the costs order of the High Court.