On 14 November 2017, the Constitutional Court is hearing an application to confirm a decision from the High Court in Johannesburg which invalidated legislation that set a time limit of 20 years on the prosecution of most sexual offences. This time limit applies to most crimes, with the exception of rape, robbery (with aggravating circumstances), murder, kidnapping and possession of child pornography, where no time limits are imposed.
Although the High Court decision was handed down in June of this year, the case actually began over four decades ago when Sidney Frankel allegedly sexually assaulted eight children. They were between the ages of six and 15 when the alleged assaults took place, from 1976 until 1991. From June 2012, as adults, they began to open criminal cases against Frankel and also filed civil suits against him. Since more than 20 years had passed since the assaults had allegedly occurred, the Director of Public Prosecutions declined to prosecute on the grounds that the time limit contained in the Criminal Procedure Act of 1977 prevented any prosecution.
Following this, seven of the eight filed an application to have the time limit on prosecuting sexual offences (other than rape and compelled rape) invalidated and set aside. In addition, they sought an order which would require the National Prosecuting Authority to consider whether to prosecute Frankel for sexual assault. A number of parties joined the case as friends of the court, including Lawyers for Human Rights, the Women’s Legal Centre and the Teddy Bear Clinic, represented by Centre for Applied Legal Studies.
Frankel initially opposed the entire application but later agreed that the time limit was unconstitutional. However, he continued to oppose the part of the application which would have required the NPA to consider charges against him. Frankel continued to oppose the case until he died, shortly after the case was heard.
The remaining parties, including the Minister of Justice and Correctional Services, also agreed that the time limit on sexual offences was unconstitutional, but had differing views on the appropriate solution. The applicants and the Minister requested that the order of invalidity only apply to sexual offences committed against children. The friends of the court, however, argued that the order should apply to adults as well, meaning that no time limit would apply to any prosecution of a sexual offence, irrespective of the victim’s age at the time of the offence.
The High Court found that the time limit imposed on the prosecution of sexual offences was irrational and arbitrary, because it treated some sexual offences differently to others. Acting Judge Clare Hartford stated “The law must encourage the prosecution of these nefarious offences, which are a cancer in South African society, and must support victims in coming forward, no matter how late in the day. The law should not smother a victim’s ability to bring sexual offenders to book, as it presently does.” On this basis Acting Judge Hartford invalidated the time limit for sexual offences, irrespective of the victim’s age.
Judge Hartford suspended her order of invalidity for 18 months to allow Parliament to correct the legislation. However, in order to allow cases to be dealt with while Parliament amended the Act, she also included an order which allowed sexual offences to be prosecuted without time limit until either Parliament had rectified the Act, or 18 months had passed. The High Court order also included a costs order against Frankel and the Minister.
The Constitutional Court Hearing
Under the Constitution, whenever a High Court decision invalidates legislation, the order of invalidity must be confirmed by the Constitutional Court. As a result, even where the parties are in agreement about the correctness of the High Court decision, the issues must be considered by the Constitutional Court. In this case, all agree on the unconstitutionality of the time limit but there is still some disagreement between the parties about certain parts of the High Court order, as well as an appeal against the costs order by Frankel’s estate.
In their papers, the applicants reiterate many of the arguments made in the High Court about why the section of the Criminal Procedure Act is unconstitutional, including the finding that the distinction between rape and other sexual offences is irrational. However, they argue that instead of having the order of invalidity suspended for 18 months, the section should be invalidated immediately, without Parliament needing to amend the legislation.
The Minister agrees that the section is unconstitutional but argues that the order of invalidity is needed in order for Parliament to determine which sexual offences should no longer be time-barred. While the Minister acknowledges that the sexual assault perpetrated against the applicants was serious and should not be subject to a limit, he argues that there are other ‘victimless’ sexual offences, such as bestiality, consensual incest and sexual acts with a corpse, which may lawfully be time-barred from prosecution. As a result, the Minister argues in support of the High Court order but requests that Parliament be given 24 months to remedy the defect instead of just 18 months.
The Women’s Legal Centre, the Teddy Bear Clinic and Lawyers for Human Rights also filed papers arguing that the time limit was unconstitutional. All of them stress that the order should apply to all sexual offences, irrespective of whether the victim was a child or an adult. In addition, the Women’s Legal Centre also applied to introduce additional evidence including reports, articles and expert evidence. Like the applicants, the Centre, the Teddy Bear Clinic and Lawyers for Human Rights also argue that the order of invalidity should have immediate effect and that the section should be read to include certain sexual offences, without Parliament needing to pass an amendment.
It is now up to the Constitutional Court to decide whether the time limit on sexual offences is unconstitutional and, more importantly, what should happen if it is. Though all the parties appear to agree that the time limit is unconstitutional, the Constitutional Court may find differently.
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