No more time limit to prosecute sexual offense in South Africa

FIDH – On Thursday 14 June 2018, the South African Constitutional Court (Court) issued an unanimous judgment confirming that there will be no more time limit in which to institute a criminal prosecution for any sexual offence in South Africa, regardless of how long ago it was committed, or whether the survivor was a child or adult. Lawyers for Human Rights (LHR) and FIDH welcome this historical judgment and encourage the South African Parliament to amend the relevant law.

The Court’s judgment was issued in the matter of Nicole Levenstein and Others v The Estate of the Late Sidney Lewis Frankel and Others. The case was initially brought to the High Court by eight adult male and female applicants, who had suffered sexual molestation as children at the hands of Mr Sidney Frankel, in the 1970s. Due to the operation of prescription, as set out in section 18 of the Criminal Procedure Act (CPA), the applicants were unable to pursue criminal charges against Frankel. This led them to seek a change to the law in the High Court, where they were successful in June 2017. LHR joined the matter as a friend of the Court, and made arguments against the prescription of sexual offences in both the High Court and the Constitutional Court, on the grounds of modern constitutional criminal law.

“ This is a huge victory for all survivors, especially adult survivors of childhood abuse, ” said Sanja Bornman, managing attorney of the Gender Equality Program at LHR. “ It is a significant and progressive development of our law, of which we are very proud. Today’s decision also brings South Africa in line with the provisions on criminal law prescription of the African Commission on Human and Peoples’ Rights’ Guidelines on Combating Sexual Violence and its Consequences in Africa .” [1]

Prior to the judgment, a complainant had 20 years to report a sexual offence to the police, after which the offence would “prescribe”. This meant that the National Prosecuting Authority was procedurally barred, by section 18 of the Criminal Procedure Act, from instituting a prosecution in respect of a sexual offence (another than rape, compelled rape, and certain offences against children) if that offence occurred more than 20 years ago. In their respective judgments, both the High Court and the Constitutional Court accepted the arguments by the applicants, and the friends of the Court, that the operation of section 18 constituted an irrational and arbitrary distinction between rape and other sexual offences, for the purposes of prescription. The Constitutional Court noted that “(s)exual offences may differ in form but the psychological harm they all produce may be similar.” The Court found that as it stood, section 18 hampered South Africa’s efforts to comply with its international law obligations, particularly in respect of protecting women and children. The Court also agreed with the findings of the High Court on the right to a fair trial, stating that the right “would be no more prejudiced in a prosecution after 20 years for sexual offences, than his rights in a prosecution after 20 years for rape or compelled rape,” because the state’s discretion to prosecute, based on “the cogency and reliability of the evidence at its disposal”, sufficiently safeguards fair trial rights.

“ The judgment of the Constitutional Court enables victims’ to overcome the multiple consequences of sexual violence before considering seizing a court of law to obtain justice and reparation. The judgment also sends a strong signal to perpetrators by saying that they may one day or another be held accountable. This is a huge precedent which we hope will have effects beyond South Africa ”, said Arnold Tsunga, FIDH Vice President.

The order that declares section 18 of the CPA to be constitutionally invalid will be suspended for 24 months, to give the South African parliament an opportunity to amend section 18. However, an amendment Bill has already been published for comment.