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Victory for Frankel 8 as 20-year limit on prosecution for sexual assault ruled unconstitutional

14 June 2018 - 15:39 By Nomahlubi Jordaan
Gavel. File photo.
Gavel. File photo. Gavel. File photo.
Image: Thinkstock

The Constitutional Court has confirmed a High Court order that a section of the Criminal Procedure Act which imposes a 20-year limit on prosecution for sexual assault is unconstitutional.

Only rape survivors have been able to lay criminal charges after the 20-year limitation‚ which this precedent-setting judgment will alter in future.

Anglican Archbishop Thabo Makgoba of Cape Town welcomed the ruling‚ which he said would make it easier to bring to justice the perpetrators of sexual assault - an issue the church is also grappling with as it tries to lend more support to victims.

Eight victims of child molestation‚ allegedly perpetrated by the late stockbroker Sidney Frankel‚ attempted to lay criminal charges against him in 2015. The Directorate of Public Prosecutions in Gauteng declined to prosecute because of the time limit.

The so-called Frankel 8 then successfully had Section 18 of the Criminal Procedure Act declared unconstitutional by the High Court in Johannesburg in June last year. Judge Claire Hartford ruled that children and adults should be allowed to lay charges of sexual and indecent assault at any time after they were abused. The eight then approached the Constitutional Court asking it to confirm the lower court's order. They claim the late billionaire sexually assaulted them more than 20 years ago in the 1970s and 1980s‚ when they were aged between seven and 15.

The group of eight have also launched a civil case against the Frankel estate.

Frankel died at his home in Johannesburg last year‚ at the age of 68. He had denied the allegations that he had abused children.

In a unanimous judgment‚ the Constitutional Court on Thursday confirmed the High Court’s order that section 18 was irrational and arbitrary‚ and therefore unconstitutional‚ insofar as it did not afford the survivors of sexual assault other than rape or compelled rape the right to pursue a charge‚ after a lapse of 20 years from the time the offence was committed.

The High Court suspended the declaration of constitutional invalidity of the section for 18 months to allow Parliament to remedy the constitutional defect.

The Constitutional Court judges gave Parliament more time to deal with the matter.

“The order is suspended for 24 months from the date of this order to afford Parliament an opportunity to enact remedial legislation‚” the court held.

“During the period of suspension section 18(f) of the Criminal Procedure Act is to be read as though the words 'and all other sexual offences whether in terms of common law or statute' appear after the words 'the Criminal Law (Sexual Offences and Related Matters) Amendment Act‚ 2007‚ respectively'."

The Constitutional Court judges signalled that inaction by MPs would result in an automatic implementation of their ruling.

“Should Parliament fail to enact remedial legislation within the period of suspension‚ the interim reading-in remedy shall become final‚” the judgment read.

Archbishop Makgoba said in a statement: "I urge Parliament to act quickly to adopt legislation to remedy the injustice which has prevented survivors of abuse from pressing charges.

"I welcome in particular the court's recognition that survivors of sexual assault have often not reported offences at the time they were committed for fear of their abusers or concern over the possible responses from their communities.

"This new development in criminal law comes as our church also takes action to make it easier for survivors of abuse to bring charges under church law."

Makgoba said church lawyers had recommended to him that the church should make it easier for complainants to access the process laid down under Canon (church) Law and to provide more support for them during the process.

“They are also reviewing how the church can prevent sexual abuse and harassment and how it can initiate early intervention in such cases‚ including providing support services‚ a helpline and crisis and survivor support.”