NL and Others v Estate Late Frankel and Others

• Jurisdiction: South Africa
• Judge: Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ
• Judgment Date: 14 June 2018
• Citation: 2018 (2) SACR 283 (CC)
• Docket Number: CCT 170/17
• Hearing Date: 14 November 2017
• Counsel: A Katz SC for the appellants. S Kazee for the first respondent. S Budlender (with P Seseane) for the second respondent. F Hobden (with B Pithey and N Kakaza) for the fourth respondent. G Snyman for the fifth respondent. A du Toit for the sixth respondent.
• Court: Constitutional Court

Zondi AJ (Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, G Kollapen AJ, Madlanga J, Mhlantla J and Theron J concurring):

Introduction

[1] H The issue in this matter relates to the constitutionality of s 18 of the Criminal Procedure Act (the CPA), [1] which provides that the right to institute a prosecution for all sexual offences, other than rape or compelled rape, is limited to a period of 20 years from the time when the offence was committed. The High Court of South Africa, Gauteng Local Division, Johannesburg (High Court), declared s 18 constitutionally I invalid —

'to the extent that it bars, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in ss 18(f),

Zondi AJ (Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J and Theron J concurring)

(h) and (i), after the lapse of a period of 20 years from the time when A the offence was committed'. [2]

That order is before this court for confirmation in terms of s 172(2) of the Constitution. [3] There are also two further matters that need to be resolved in these proceedings. First is the application by the fourth respondent, the Women's Legal Centre Trust (WLC), to adduce further B evidence. The second is an appeal by the first respondent, the Estate of the Late Sidney Lewis Frankel (Estate), against the costs order of the High Court.

[2] I must emphasise that, although this judgment accepts that all sexual offences are equally serious and that the harm they all cause is C significantly serious, this matter is not about the magnitude of sentences that must be imposed on those convicted of such offences. Rather, it is about the constitutionality of the distinction that s 18 draws between rape, or compelled rape, and other sexual offences for purposes of prescription.

[3] The application for confirmation arises from a refusal by the third D respondent, the Director of Public Prosecutions, Gauteng (the DPP), to prosecute the late Mr Sydney Lewis Frankel whom the applicants allege sexually assaulted them in and around Johannesburg more than 20 years ago, when the applicants were between the ages of 6 and 15. The DPP declined to prosecute Mr Frankel on the ground that the crimes he was accused of having committed occurred more than 20 years earlier and E that s 18 of the CPA bars the right to institute prosecution for such crimes.

[4] The confirmation proceedings raise three interrelated questions. The first is whether s 18 of the CPA is inconsistent with the Constitution. F The second, which arises only if s 18 is inconsistent with the Constitution, relates to the appropriate relief: whether the declaration of invalidity should be suspended with or without an interim reading-in, and

Zondi AJ (Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J and Theron J concurring)

whether A it should apply prospectively or retrospectively. The third relates to the question of costs in this court.

Parties

[5] The eight applicants are adult males and females who all allege that B they were sexually assaulted by Mr Frankel when they were children.

[6] The first respondent is the Estate which substituted Mr Frankel after his death in April 2017, before the hearing in the High Court. The second respondent is the Minister of Justice and Correctional Services (Minister).

[7] C The fourth to sixth respondents are the WLC, Teddy Bear Clinic (the TBC), and Lawyers for Human Rights (the LHR). These respondents were amici in the High Court.

Background and litigation history

[8] D During the period between 1970 and 1989, when the applicants were aged between 6 and 15 years old, Mr Frankel is alleged to have sexually assaulted them. As a result of the alleged sexual assaults, the applicants claim to have suffered physical, emotional and psychological trauma. The effect of a 20-year prescription period imposed by s 18, for all sexual offences other than rape or compelled rape, meant that the right to E prosecute Mr Frankel for the sexual assaults he allegedly perpetrated against the applicants prescribed between 1998 and 2011. The applicants allege that they did not institute criminal proceedings against Mr Frankel within the period prescribed by s 18 because of lack of full appreciation of the nature and extent of the criminal acts allegedly F perpetrated on them by him. They say they acquired full appreciation of the nature of these criminal acts, allegedly committed, between June 2012 and June 2015 and that it was only then that they instituted civil and criminal action against him. The DPP, however, declined to prosecute Mr Frankel on the ground that the right to prosecute him for the alleged offences had prescribed in terms of s 18.

[9] G The applicants thereafter approached the High Court and challenged the constitutionality of s 18 of the CPA. They sought, amongst other things, two main prayers. First, an order declaring that s 18 is inconsistent with the Constitution and invalid to the extent that it bars, in all circumstances, the right to institute a prosecution for all offences as H contemplated by the Criminal Law (Sexual Offences and Related Matters) Amendment Act [4] (SORMA), other than rape or compelled rape, after the lapse of a period of 20 years from the time when the offence was committed. Second, they sought an order directing the DPP to consider prosecuting Mr Frankel for the offences he was alleged to have committed. I The applicants submitted that there is no rational basis for distinguishing rape or compelled rape from other forms of sexual offence. They contended that s 18 is irrational and arbitrary and therefore unconstitutional and invalid, in that the distinction it seeks to

Zondi AJ (Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J and Theron J concurring)

make is based on the perceived seriousness of the offences and their A impact on the survivors. They further contended that it unjustifiably violates their rights to human dignity, equality and non-discrimination; to be protected from abuse as children; to be free from all forms of violence from both public and private sources; and access to courts.

[10] Mr Frankel resisted the application, contending, first, that the B applicants had failed to establish the constitutional invalidity of s 18. Second, he contended that the applicants had not addressed the issue of retrospectivity in relation to the operation of the order of constitutional invalidity, as such order would necessarily operate retrospectively to allow the DPP to reconsider his or her decision not to prosecute him. C Instead, Mr Frankel argued, the applicants based their case on the constitutional invalidity of SORMA, which came into force on 16 December 2007, and therefore s 18 would be constitutionally invalid as of this date. As a result, Mr Frankel contended that the applicants would not be able to obtain relief in relation to the alleged criminal offences which took place approximately 30 years ago. Mr Frankel's defences prompted the D applicants to amend their notice of motion by seeking an order declaring that s 18 was invalid to the extent that it bars, in all circumstances, the right to institute a prosecution for all sexual offences suffered by children, other than rape or compelled rape, after the lapse of a period of 20 years from the time the offence was committed. Pursuant to this amendment, E in January 2017 Mr Frankel withdrew his opposition to the relief sought in prayer 1 of the notice of motion, but persisted in opposing the relief sought in prayer 2 based on the principle of legality, which is the position he maintained until his demise in April 2017, shortly before the hearing of the matter in the High Court.

In the High Court F

[11] Notwithstanding the agreement between the applicants and Mr Frankel, that the relief sought should be confined to children, the High Court held that there were no reasons to do so. It concluded that G the relief should apply to child and adult survivors of sexual assault. The High Court based its conclusion on two grounds. First, it reasoned that s 18(f) itself does not make a distinction between children and adults and it would be nonsensical for the court to artificially confine the relief to children only, when s 18(f) does not impose any such restriction. Second, the common-law crime of indecent assault does not make such H distinction either; indecent assault can be committed against both adults and children. The court therefore accepted that the broader relief, as framed by the amici, was the most appropriate relief to grant, should s 18 be declared unconstitutional and invalid. [5]

[12] The High Court, after analysing the historical development of I s 18 and the extent to which it affects the discretionary powers of the National Prosecuting Authority (the NPA), concluded that there was no rational basis for distinguishing rape or compelled rape from other sexual

Zondi AJ (Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J and Theron J concurring)

offences A for purposes of prescription. That conclusion was based on the expert evidence presented, detailing the reasons why there is often delayed disclosure relating to all sexual offences, and not just rape or compelled rape. The court accepted expert evidence in this regard, and held that, even though the reasons for delayed reporting only relate to children — delayed disclosure or reporting stems from all forms of abuse B and therefore these traumatic symptoms and pressures apply equally to adult survivors of sexual abuse. [6]

[13] The High Court held that it was entirely irrational and arbitrary to create a random...