NL AND OTHERS v FRANKEL AND OTHERS 2017 (2) SACR 257 (GJ)
Sexual offences — Prescription of — Exclusion from prescription of only rape and compelled rape by s 18 of Criminal Procedure Act 51 of 1977 — Arbitrary, irrational and unconstitutional in relation not only to children, but to all persons.
The applicants applied for an order declaring s 18 of the CPA to be inconsistent with the Constitution, 1996, and invalid to the extent that it barred in all circumstances the right to institute prosecutions for all offences as contemplated by the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007, other than rape or compelled rape, after the lapse of a period of 20 years from the commission of the offence. They also sought an order directing the third respondent (the Director of Public Prosecutions, Gauteng) to consider instituting a prosecution against the first respondent, whom they accused of having indecently assaulted them when they were between the ages of 6 and 15 years, more than 20 years earlier.
They contended that the effect of the section was that it afforded no discretion as to whether a prosecution ought to be instituted or not, and effectively caused the offences to prescribe after 20 years. They further submitted that the provision was irrational in that it made arbitrary distinctions in respect of the gravest of crimes and violated their rights to human dignity, equality and non-discrimination; their right to be protected from abuse as children; their right to be free from all forms of violence from both public and private sources; and their right to access to courts and a fair trial. They also submitted that the limitation was not justifiable under s 36 of the Constitution.
There were three amici curiae who made submissions to the court and they were unanimous that any declaration of invalidity should not be confined to sexual offences against children only.
The first respondent (he passed away before the hearing) opposed the application, but later advised the court that he did not oppose the relief for the declaration of the invalidity of the section, but maintained his opposition to the relief sought against him on the basis of the principle of legality.
Held, that, because s 18(f) made no distinction in excluding from prescription the crimes of rape and compelled rape between children as opposed to adults, it was a blanket exclusion from prescription for all persons. Furthermore, because the common-law crime of indecent assault was not confined to one against children only, it would not make sense for the court, in determining the constitutional invalidity of s 18(f), to confine such invalidity to children only when the section itself provided for no such limitation (see  and ).
Held, further, that, having regard to the expert evidence that the trauma suffered by victims might be worse in non-penetrative sexual offences than in penetrative sexual offences, s 18 was arbitrary and irrational and accordingly inconsistent with the Constitution and invalid, in relation to not only children, but to all victims, including adults. Furthermore, to create a random cut off time of 20 years for prescription of sexual offences when evidence demonstrated that they inflicted deep continuous trauma on victims who either never disclosed the offences or only did so after varying lengths of time, was entirely irrational and arbitrary (see  and ).
Held, further, that the state’s duty to protect all persons against sexual violence in terms of s 7(2) of the Constitution was a particularly onerous one, having regard to the extreme levels of sexual violence in South Africa, and that s 18 of the CPA stultified the state’s constitutional obligations. The state also had international obligations to prohibit gender-based discrimination, and a prescription limit of 20 years, on sexual offences other than rape or compelled rape, appeared to frustrate the aims and objectives of those obligations (see  and ).