Removing the prescription blindfold in cases of childhood sexual abuse

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Pages: 227-242
• Date: 15 August 2019
• Citation: 2005 Acta Juridica 227
• Author: Nikki Naylor

Removing the prescription blindfold in cases

of childhood sexual abuse

NIKKI NAYLOR*

Women’s Legal Centre

I INTRODUCTION: CHILD SEXUAL ABUSE IN SOUTH

AFRICA

Recently the horror of child sexual abuse has received extensive media

coverage in South Africa. Some experts have referred to the incidence of

child sexual abuse as being high enough to be seen as a war upon our

children.

1

Whilst it is impossible to describe the exact physical and

emotional wounds that children who have been violated are left to deal

with, it is common cause that sexual abuse causes immense physical and

emotional pain at the time of the assault.

2

It also leaves scars that linger in

children’s lives in a multitude of ways, threatening their physical and

emotional well being and development, their sense of self and their right

to health, happiness and a life free from all forms of violence.

3

These scars

often persist well into adulthood.

Sexual abuse clearly constitutes a violation of children’s rights resulting

in an obligation on the part of the state to ensure that effective and

appropriate steps are taken to address the problem.

4

The focus in recent

years has been to get children to speak out against abuse, thereby

increasing rates of reporting and criminal action against perpetrators.

5

This article will not consider the criminal avenues open to survivors of

child sexual abuse, but rather the manner in which the law governing

civil actions and prescription has evolved so as to protect survivors of

childhood abuse. Previously prescription laws largely ‘conspired’ with

perpetrators by silencing survivors of childhood sexual abuse. While a

survivor has the right to institute criminal proceedings in most cases of

sexual abuse, the survivor may prefer to institute action civilly. In civil

* BProc LLB (Western Cape) LLM (University College London), Attorney, Women’s

Legal Centre, Cape Town.Attorney acting on behalf of the appellant in the case of Van Zijl v

Hoogenhout discussed in this article.

1

L Richter,A Dawes & C Higson-Smith (eds) Sexual abuse of young children in South Africa

(2004) foreword by G Machel at ix.

2

A Carr The Handbook of child and adolescent clinical psychology (1999) 749–856.

3

S Harter ‘The effects of child abuse on the self-esteem’ (1998) 2 Journal of Aggression,

Maltreatment and Trauma147–169.

4

R September ‘The Report of the Parliamentary Task Group on sexual abuse of children

2002: Acommentary’ in Richter et al (n 1) 304–331.

5

T M Maluleke & S Nadar ‘Breaking the covenant of violence against women and

children.’ (2002) 114 Journal of Theology for Southern Africa Special Issue: Overcoming violence

against women and children 5.

227

2005 Acta Juridica 227

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cases the survivor has more control over the conduct of the case and a

lower burden of proof is applicable. However, in these cases prescription

problems often arise because survivors tend to remain silent and may not

pursue action until well beyond the age of majority. As a result the

survivors may be time-barred and prevented from holding the perpetra-

tor liable since the law requires a survivor to institute action within three

years of attaining majority.

6

A rigid application of prescription laws

therefore limits the right of survivors to access to courts, as well as their

rights to equality, dignity and freedom and security of the person.

In this article I focus on the current approach to childhood sexual

abuse and prescription laws in South Africa in the context of a recent

Supreme Court of Appeal ruling. I start by setting out the rationale for

prescription and the constitutional framework within which prescription

needs to be considered. I then deal with the f‌irst case in South Africa in

which the Supreme Court of Appeal has had to apply prescription in the

context of childhood sexual abuse and go on to analyse what this means

for future cases, particularly in relation to the test to be applied by courts.

In the latter regard case law in Canada, New Zealand and the USA is

considered for the impact that it may have in future cases.

II THE RATIONALE FOR PRESCRIPTIONAND THE

IMPACT OF THE CONSTITUTION

Prescription refers to the acquisition or extinction of a right or claim by

the lapse of time. The rationale for prescription is the promotion of

certainty in legal affairs by preventing multiple actions of an endless

nature.

7

Prescription is based on ‘the principle that penalties should be

imposed on those who, through their negligence and carelessness about

their own affairs and property, do an injury to the state by introducing an

uncertainty as to the ownership and an endless multiplicity of lawsuits’.

8

For many years our courts have accepted this approach and have held

that the primary purpose of prescription is to ensure that negligent

inaction is punished.

9

At present prescription is governed, apart from the

common law and certain other statutory enactments, by the 1969

Prescription Act,

10

which came into force on 1 December 1970.

Although the 1969 Act repealed the earlier 1943Act

11

it does not apply to

any period prior to 1 December 1970. Thus, where a debt has arisen prior

6

N Des Rosiers ‘Limitation periods and civil remedies for childhood sexual abuse’(1992) 9

Canadian Family Law Quarterly 43 at 51–52.

7

J Saner Prescription in South African Law (2003 Service Issue 9) 1–3.

8

Ibid at 3.

9

Welgemoed v Coetzee 1946 TPD 701 at 711 and Pienaar v Rabie 1983 (3) SA126 (A) at

138H.

10

Act 68 of 1969.

11

Act 18 of 1943.

228 ADVANCING WOMEN’S RIGHTS

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