The ticking clock of prescription in cases of historical sexual abuse

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Author: Andre Mukheibir
• 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 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 (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).

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 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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