The ticking clock of prescription in cases of historical sexual abuse

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Author: Andre Mukheibir
• Citation: (2018) 31 SACJ 361
• Pages: 361-390
• Date: 16 August 2019

The ticking clock of prescription

in cases of historical sexual abuse

ANDRE MUKHEIBIR,* JOANNA BOTHA** AND

GREGORY MITCHELL***

ABSTRACT

Rape and sexual abuse infringe a number of fundamental human rights

of victims, in particular the rights to dignity and freedom and security of

the person. Abuse cases are, furthermore, often shrouded in secrecy and

victims may only consider legal action many years after the fact. The crime

of rape does not prescribe, but until recently the sexual abuse other than

rape or compelled rape prescribed after 20 years. In the case of Levenstein

v Estate Frankel (2018 (2) SACR 283 (CC)) the Constitutional Court held

that the prescription period was unconstitutional and should be abolished.

The ‘Frankel Eight’ intend cha llenging the prescription periods for delictual

actions. The rules of prescription in delictual cases have already been

relaxed, rst by the Supreme Court of Appeal in Van Zijl v Hoogenhout

([2004] 4 All SA 427 (SCA)), and thereafter by the Criminal Law (Sexual

Offences and Related Matters) Amendment Ac t (Act 32 of 2007), but a victim

would still have to prove that her ‘inabilit y’ caused the delay in her bringing

the action. It is our contention that, given the debilitating nature of the

harm, the Prescription Act (Act 18 of 1969) should be amended to abolish

prescription altogether for the purposes of delictual actions for both rape

and sexual abuse, because several fundamental rights, in particular the

right to dignity, are infringed. Alternatively, section 12(4) of the Act should

be amended to provide for a broad judicial discretion for determining

whether the victim is able to institute action and whether good cause has

been shown for the delay.

1 Introduction

‘… [T]he systematic sexual exploitation of women and children depends

on secrecy, fear and shame. Too often survivors are stied by fear of their

abusers and the possible responses from their communities if they disclose

that they had been sexually assaulted. This is exacerbated by the fact that the

sexual predator… is in a position of authority and power over them. They are

*BMus BJuris LLB (UPE) BA(Hons) HDE (Unisa) DIuris (Amsterdam), Professor of

Law, Nelson Mandela University.

**BA LLB (Rhodes) LLD (NM MU), Senior Lecturer, Nelson Mandela Univer sity.

***B Psych (UPE) BA(Hons) (Psych) (UPE) STB (Angelicum) MA (Clin Ps ych) (NMMU),

Clinical Psychologist and Catholic Priest (Congregation of the Oratory of St Philip

Neri).

361

(2018) 31 SACJ 361

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threatened and shamed into silence. These characteristics of sexual violence

often make it seem and feel impossible for victims to report what happened

to loved ones – let alone state ofcials.’1

Rape and sexual abuse infringe several fundamental rights of the

victim, especially the right to dignity. Dignity is not only enshrined

as a fundamental right in the Bill or Rights; it is also a value that

underpins the Constitution.

Rape and sexual abuse have been rife in South Africa for many

decades. The press has been reporting horror stories of sexual

violence with frightening regularity.2 Victims have been and still are

loath to report perpetrators, bec ause of feelings of shame, and because

of the fact that the perpetrators usually either deny wrongdoing, or

claim that the conduct was consensual.3 Often the victim is afraid

of retribution by the perpetrator.4 In the case of abuse and rape

of children, many incidents will often only surface years and even

decades later.5 The majority of clergy sexua l abuse cases in the Catholic

Church, for example, happened decades ago.6 Where victims report

incidents of sexual abuse many years after the fact, they are often

asked why they have waited so long, thus casting doubt on the veracity

1 NL v Estate Franke l 2018 (2) SACR 283 (CC) para [56].

2 C Pitt ‘Mortimer Saunders found guilty of rape, murder of 3 year old Courtney

Pieters’, News24, 7 November 2018, available at https://www.news24.com/

SouthAfrica/News/mortimer-saunders-found-guilty-of-rape-murder-of-3-year-old-

courtney-pieters-20181107, accessed on 8 November 2018; P Mbude ‘One child too

many – #TheTotalShutdown protest s to support the alleged Dros child rape v ictim’,

W24, 2 October 2018, available at https://www.w24.co.za/Wellness/Mind/one-

child-too-many-thetotalshutdown-protests-to-support-the-alleged-dros-child-rape-

victim-20181002, accessed on 8 November 2 018; C September ‘T he Anene Booysen

Story’, EWN, 1 November 2013, available at https://ewn.co.za/2013/10/31/The-

Anene-Booysen-Story, accessed on 8 November 2018. See also N Naylor ‘Removing

the prescription blindfold in cases of childhood sexual abuse’ 2005 Acta Juridica

227 – 242.

3 See case discu ssions below.

4 For example, in the case of former Cardinal McCarrick who sexually abused

seminarians. They were in a vulnerable position as their future as priests could be

affected.

5 W Nortje & P Du Toit ‘A fresh perspective on historical sexual abuse: The case

of Hewitt v S2017 1 SACR 309 (SCA)’ (2017) 20 PER / PELJ, doi: http://dx.doi.

or g/10 .17159/17 27-378 1/20 17/v20 i0a 2229 , accessed on 7 November 2018. See also

the case discussions below and the reports by the John Jay College into sexual

abuse by Catholic Clerg y. The rst repor t dates back to 1950: The Nature and Scope

of Sexual Abuse of Minor s by Catholic Priests and D eacons in the United States 1950-

2002 (2004), available at http://www.usccb.org/issues-and-action/child-and-youth-

protection/upload/The-Nature-and-Scope-of-Sexual-Abuse-of-Minors-by-Catholic-

Priests-and-Deacons-in-the-United-States-1950-2002.pdf, accessed on 2 November

2018.

6 Ibid.

362 SACJ.(2018) 3

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