Victory for Frankel 8

CONCOURT STRIKES DOWN PRESCRIPTION PERIOD

There is nowhere left to hide for sexual predators after the Constitutional Court yesterday confirmed High Court in Johannesburg Judge Claire Hartford’s 2017 ruling, which struck down the 20-year prescription period on sexual offences other than rape.

The judgment was penned by Judge Dumisani Zondi with Deputy Chief Justice Ray Zondo and judges Edwin Cameron, Johan Froneman, Chris Jafta, Fayeeza Kathree-Setiloane, Jody Kollapen, Mbuyiseli Madlanga, Nonkosi Mhlantla and Leona Theron concurring.

The application was brought by eight men and women – known as the Frankel 8 – who claimed they were sexually assaulted by deceased billionaire businessperson Sidney Frankel in and around Johannesburg between 1970 and 1989, when they were between the ages of six and 15 years old.

“Enacting legislation involves the exercise of public power and ... the legislature is required to act in a rational manner when it exercises its legislative power,” said Zondi.

He noted that by overemphasising the significance of the criminal act at the expense of the harm to the survivors failed to serve as a tool to protect and advance the interests of survivors of sexual assault.

“The criminal justice system should play a role that supports the survivors of crimes involving sexual violence and create mechanisms that would encourage them to come forward, more so in view of the fact that such crimes have become prevalent these days,” said Zondi.

“I agree with the Teddy Bear Clinic [friend of the court] that the prescription period of 20 years imposed by section 18 is insufficiently cognisant of the nature and process of sexual assault disclosure.”

Taking note of the submission by the other friends of the court, the Women’s Legal Centre, Zondi found there were numerous reasons why adult survivors chose to report the sexual offence against them after a long period of time.

“Personal circumstances ... may change; with time comes maturity and an ability to process the trauma suffered as a result of the violence. She may seek out psychological help, such as counselling, which empowers her to enter the criminal justice system,” he said.

After finding the high court’s order “just and equitable”, Zondi dismissed the Frankel estate’s appeal against a costs order and declared section 18 inconsistent with the constitution.

He suspended the order for 24 months and declared the section was 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.”

Zondi also made the declaration of invalidity retrospective to April 27, 1994. –

The system should play a role that supports survivors