ZONDI AJ
which may be more accepting of women who are sexually abused. She may have a
supportive partner later on in life who believes her and supports and encourages her to
report to the police. Someone else may report a sexual offence committed by the same
perpetrator which may give the survivor courage to report.
[54]
It is apparent that section 18 is out of touch with the development regarding the
application of prescription in relation to sexual offences, which has taken place since
the judgment of the Supreme Court of Appeal in Van Zijl35 and as developed by this
Court in Bothma.36 The Supreme Court of Appeal in Van Zijl held that the purpose of
prescription is to penalise unreasonable inaction, and not inability to act.37 This Court
in Bothma appreciated the positive development that has taken place in the past two
decades regarding the willingness of the survivors of sexual assault to come forward
about their past.38 In these days survivors of sexual assault feel empowered to come to
grips with and denounce sexual abuse they had suffered as children.39
They have
become more informed about their condition and rights and have received support from
public interest groups. There is healing power in groups. The survivors find solace in
each other‘s words; they feel more empowered to bare their souls and relate their painful
experiences. The Supreme Court of Appeal in Van Zijl accepted that rape had the
inherent effect of rendering child survivors unable to report the crime, sometimes for
several decades, and that the policy was not to penalise them for the consequences of
their abuse by blaming them for the delay.40 What was said by the Supreme Court of
Appeal in Van Zijl and by this Court in Bothma applies with equal force to survivors of
all forms of sexual violence though it was made in the context of rape. The effect of
section 18 is that it penalises even a complainant whose delay was caused by or due to
his or her inability to act by preventing him or her from pursuing a charge even if he or
35
Van Zijl v Hoogenhout [2004] ZASCA 84; [2004] 4 All SA 427.
36
Bothma above n 15.
37
Van Zijl above n 35 at para 19.
38
Bothma above n 15 at para 50.
39
Id at para 48.
40
Van Zijl above n 35 at paras 7 and 9.
23
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