‘Unconstitutional’ Prescription Act must be amended – Frankel 8
TWO MONTHS after the “Frankel Eight” changed the law to remove the 20-year time limit – or prescription – in prosecuting sexual assault, the group has now set its sights on altering other abuse legislation.
In June, the group of abuse survivors secured a Constitutional Court ruling that means survivors of historical abuse can open criminal cases against their assailants even decades after the abuse.
The eight spent years calling on the justice system to hold billionaire Sydney Frankel accountable for allegedly abusing them when they were children. But Frankel died in 2017, before he could be taken to court.
Before June’s ruling that changed the Criminal Procedure Act, any sexual crime besides rape or compelled rape would prescribe after 20 years, meaning the eight were afraid they would never be able to prosecute Frankel criminally.
Because of this, they also launched a civil claim against him in 2015, each asking for R5 million in damages. But the civil case has faced similar issues to the criminal case, namely that the Prescription Act of 1968 also places a time limit on civil claims.
The group has once again approached the courts to amend the Prescription Act .
In a notice of motion filed earlier this month, they argue that section 12(4) allows victims of certain sexual offences (such as rape) and trafficking to ignore such time limits, but does not include all acts of sexual assault.
The group argues that the section is “irrational, arbitrary and unconstitutional”, and needs to be altered.
It’s a similar argument used by the group successfully against the Criminal Procedure Act, with the Constitutional Court’s ruling forming a major part of their current argument.
According to an affidavit submitted as part of the notice of motion by one of the Frankel Eight, Paul Diamond, they are aware that prescription is a major factor in their own damages claim against the Frankel estate and that current law affects other victims of sexual abuse from launching such cases.
But it’s not just the eight and their legal team fighting to alter the Prescription Act, as the Centre for Child Law has also joined the application.
In the affidavit, the centre confirms it too is concerned about the implications of how the act does not apply to all sexual offences, particularly to childhood victims.
“While those children do not have civil prescription run against them while they are under 18, it is also necessary to protect them from the running of prescription after they turn 18 if they remain unable to institute proceedings because of their mental or psychological condition.
“Section 12(4) laudably seeks to achieve this, but fails to do so in respect of all sexual offences,” the affidavit reads.
Frankel’s lawyer, Billy Gundelfinger, confirmed yesterday afternoon that there was no reason to oppose the current application, as in his view the section was unconstitutional in that it did not include all sexual offences. He said he did not believe the current application would assist the applicants.