Court opens way for old sex cases to be re­solved

Rul­ing wel­comed but of­fi­cials say they’ll have chal­lenges to over­come

The Star Early Edition - - NEWS - NOKUTHULA ZWANE MASABATA MK­WANANZI

AUTHOR­I­TIES could find it dif­fi­cult to pros­e­cute very old sex­ual of­fences fol­low­ing the land­mark rul­ing which found the 20-year pre­scrip­tion on sex­ual of­fences un­con­sti­tu­tional.

These were the views of a se­nior pros­e­cu­tor, who said last week’s rul­ing by Judge Clare Hart­ford at the South Gaut­eng High Court in Jo­han­nes­burg could pose chal­lenges for pros­e­cu­tors in the fu­ture should the law comes to pass.

The se­nior pros­e­cu­tor, who asked to re­main anony­mous, was re­act­ing to the judg­ment in the mat­ter be­tween the so-called Frankel 8, who wanted sec­tion 18 of the Crim­i­nal Pro­ce­dure Act – which deals with the 20-year pre­scrip­tion on re­port­ing al­leged sex­ual of­fences – de­clared un­con­sti­tu­tional so they could pros­e­cute late bil­lion­aire Sid­ney Frankel for al­legedly sex­u­ally as­sault­ing them over 20 years ago.

The judge has given Par­lia­ment 18 months to change the law that re­stricts when sex­ual of­fences cases can be re­ported and pros­e­cuted.

Judge Hart­ford’s rul­ing still has to be rat­i­fied by the Con­sti­tu­tional Court.

The se­nior pros­e­cu­tor said the chal­lenges in pros­e­cut­ing dated cases could lie when the nec­es­sary ev­i­dence or wit­nesses were not avail­able.

“It’s al­ways go­ing to be a huge chal­lenge,” the of­fi­cial ex­plained.

“Af­ter that long pe­riod of time peo­ple pass on, peo­ple move, and peo­ple might no longer re­mem­ber where they were at the time of the crime.

“This law could be a wel­come de­vel­op­ment, es­pe­cially for sex­ual vi­o­lence sur­vivors. They would feel like they are not bound to a prescribed time frame with their case like any other case,” he said.

“The gath­er­ing of real ev­i­dence such as the DNA ev­i­dence, the se­men and blood ev­i­dence… those things can only work if col­lected im­me­di­ately af­ter the in­ci­dent and an­a­lysed at the foren­sic lab.

“We have many sex­ual of­fences cases that in­volve mi­nors or ba­bies and are mainly proved through DNA. You might find that af­ter a long pe­riod of time it may be dif­fi­cult to re­coup such DNA ev­i­dence. Peo­ple grow and change so much,” he added.

How­ever, he wel­comed the rul­ing, say­ing: “What this means is that sex­ual of­fences are placed at the same rare clas­si­fi­ca­tions as all other cases and that they can be pros­e­cuted at any time. But prac­ti­cally I think there are ob­vi­ously many dif­fi­cul­ties and that is go­ing to be a huge chal­lenges for the pros­e­cut­ing au­thor­ity.”

Phep­helaphi Dube, direc­tor of the Cen­tre for Con­sti­tu­tional Rights, said the de­ci­sion by the court to re­move the 20-year pre­scrip­tion pe­riod in sex­ual of­fences was an im­por­tant af­fir­ma­tion of cer­tain con­sti­tu­tional rights and val­ues.

“It af­firms the right to dig­nity as well as the right to free­dom and se­cu­rity of the per­son. The de­ci­sion shows a keen aware­ness of the need for free­dom from the threat of sex­ual vi­o­lence for South African women,” said Dube

“The rul­ing also af­firms the knowl­edge that sex­ual vi­o­lence has been a threat to the self-de­ter­mi­na­tion of South African women and it cer­tainly gives sur­vivors of sex­ual vi­o­lence hope that at the very least the le­gal sys­tem recog­nises their pain and trauma de­spite the pas­sage of

Pas­sage of time can play havoc with col­lect­ing good ev­i­dence

time,” Dube said.

How­ever, just like the pros­e­cu­tor, Dube also stated that sus­tain­ing ev­i­dence such as cloth­ing, DNA, and vic­tims’ mem­o­ries would be dif­fi­cult to pre­serve for long pe­ri­ods, and may pose dif­fi­cul­ties for the pros­e­cut­ing au­thor­ity.

“De­spite the NPA and the Depart­ment of Jus­tice boast­ing of the high rates of con­vic­tion of sex­ual of­fences, the re­al­ity is that the NPA only pros­e­cutes cases where it has a rea­son­able chance of gain­ing a con­vic­tion,” she said.

Shadrack Gutto, a re­tired law pro­fes­sor and con­sti­tu­tional law ex­pert, told The Star that it was a good thing that vic­tims of sex­ual of­fences could fi­nally re­port crimes that had been done to them with­out hav­ing a time limit.

How­ever, Gutto raised some of his con­cerns about the chal­lenges that the pros­e­cu­tors might face in the fu­ture.

“Not that I’m op­pos­ing the pos­si­ble out­come of the judg­ment, but I per­son­ally feel like, it will be dif­fi­cult for of­fi­cials to pur­sue cases that are longer than 30 years,” said Gutto.

He added that peo­ple tend to for­get things and when they have to re­call events that hap­pened, cer­tain things will change.

En­quiries re­lat­ing to how the law would work around these is­sues were sent to the Depart­ment of Jus­tice and the Na­tional Pros­e­cut­ing Au­thor­ity, but nei­ther of­fice was able to re­spond by the time of pub­li­ca­tion. @Zwane_2li2ls @Sa­bie_M

NEVER TOO LATE: The Frankel 8 want to pros­e­cute the late bil­lion­aire Sid­ney Frankel, above. They claim he sex­u­ally as­saulted them more than 20 years ago.

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