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 i nfringe a number of f undamental huma n rights
of victims, in pa rticular the r ights to dignity and f reedom and securit y of
the person. Abuse case s are, further more, often shrouded in sec recy and
victims may only con sider legal action many years af ter the fact. The cri me
of rape does not prescribe, but unt il recently the sexua l abuse other than
rape or compelled rape prescribe d after 20 years. In the c ase of Levenstein
v Estate Frankel (2018 (2) SACR 283 (CC)) the Constitutiona l Court held
that the prescription pe riod was unconstitut ional and should be abolished.
The ‘Frankel Eight’ intend cha llenging the prescription periods for delictu al
actions. The rules o f prescription in delict ual cases have already b een
relaxed, rst by the Supreme Cour t of Appeal in Van Zijl v Hoogenhout
([2004] 4 All SA 427 (SCA)), and thereafter by t he Criminal L aw (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, g iven the debilitating nat ure of the
harm, the Prescr iption Act (Act 18 of 1969) should be amended to abolish
prescription altogether for the pur poses of delictua l actions for both rape
and sexual abuse, because se veral fundamenta l rights, in part icular the
right to dignity, are inf ringed. Altern atively, section 12(4) of the Act should
be amended to provide for a broad judicial dis cretion for determin ing
whether the victim is able to i nstitute action and whet her 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 stied 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 (U PE) BA(Hons) HDE (Unisa) DIuris (Amsterd am), 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 Psycholog ist and Catholic Prie st (Congregation of the Orator y of St Philip
Neri).
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(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 ofcials.’1
Rape and sexual abuse inf ringe several fundamental r ights of the
victim, especially t he right to dignity. Dignity is not only enshr ined
as a fundamental right i n the Bill or Rights; it is also a value that
underpins t he Constitution.
Rape and sexual abuse have been rife in South A frica for many
decades. The press has been report ing horror stories of sexual
violence with frightening regularit y.2 Victims have been and still are
loath to report perpetrators, bec ause of feelings of shame, and because
of the fact that the perpetr ators usually either deny wrongdoing, or
claim that the conduct was consensual.3 Of ten the victim is afra id
of retribution by the perpetrator.4 In the case of abuse and rape
of children, many incidents wil l 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 af ter 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 ‘Mortime r Saunders found guilt y of rape, murder of 3 year old C ourtney
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 t oo
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-
vic tim- 2018100 2, accessed on 8 November 2 018; C September ‘T he Anene Booysen
Story’, EWN, 1 November 2 013, available at https://ewn.co.za/2013/10/31/The-
Anene-Booysen-Story, accessed on 8 November 2018. See a lso N Naylor ‘Removing
the prescription bl indfold in cases of c hildhood sexu al abuse’ 2005 Acta Jur idica
227 – 242.
3 See case discu ssions below.
4 For example, in the case of for mer Cardinal Mc Carrick who sexu ally abused
seminari ans. They were in a v ulnerable position as t heir future a s priests could be
affected.
5 W Nortje & P Du Toit ‘A fresh perspective on hi storical sexu al abuse: The case
of Hewitt v S 2017 1 SACR 309 (SCA)’ (2017) 20 PER / PELJ, doi: http://d x.d oi.
or g/10 .17159/17 27-378 1/20 17/v20 i0a 2229 , accessed on 7 November 2018. See al so
the case discu ssions below and the repor ts by the John Jay College in to 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 (200 4), available at http://www.usccb.org/issues -and-action/child- and-youth-
protection/upload/The-Nature- and-Scope-of-Sex ual-Abuse-of-Minors-by- Catholic-
Priests-and-Deacons-in-the-United-States-1950-2002.pdf, access ed on 2 November
2018.
6 Ibid.
362 SACJ . (2018) 3
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