ZONDI AJ
[48]
The question whether a legislative provision is rationally related to a given
governmental object entails an objective enquiry.
The test is objective because
otherwise a decision that, viewed objectively, is in fact irrational—
―might pass muster simply because the person who took it mistakenly and in good faith
believed it to be rational. Such a conclusion would place form above substance and
undermine an important constitutional principle.‖34
[49]
The Minister, on whom the onus lies to justify the rationality of section 18,
concedes that the exclusion of sexual offences (other than rape or compelled rape) from
the definition of offences that do not prescribe in terms of section 18, was not informed
by the government purposes underpinning SORMA. These are to: afford complainants
of sexual offences the least traumatising protection the law can provide; introduce
measures which seek to enable the relevant organs of state to give full effect to the Act;
and combat and ultimately eradicate the high incidence of sexual offences committed
in the Republic. The Minister points out that given the serious nature of all sexual
offences and the vulnerability of survivors of such offences, any policy position that
seeks to distinguish between penetrative and non-penetrative sexual offences in relation
to section 18, cannot pass constitutional muster.
[50]
When rape or compelled rape was excluded from the reach of the prescription
period of 20 years, this was not done for the purposes of protecting and advancing the
interests of the survivors of sexual offences.
[51]
The primary rationale for differentiation between sexual offences in section 18
seems to be based on a consideration that certain sexual offences are more serious than
others. This idea is seriously disputed by the WLC. It contends that there is no factual
basis or policy reasons to endorse the view that penetrative sexual offences are more
traumatic than non-penetrative sexual offences and the assumption that certain sexual
34
Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of
South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 86.
21
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