ZONDI AJ
crimes to the police in general and in particular those involving sexual violence
undermines the efforts of the government to combat and ultimately eradicate the
scourge of sexual offences.
Applicants’ submissions
[25]
The applicants support the reasoning of the High Court regarding the finding of
constitutional invalidity of section 18, but not the portion of the order suspending the
declaration of invalidity.
[26]
The applicants contend that section 18 is an absolute bar to prosecuting sexual
offences other than those listed in section 18 which were committed more than 20 years
earlier, notwithstanding the seriousness of the offence, the extent of the infringement of
rights, and the complex psychological factors that cause a delay in reporting. As a result
of this bar, the NPA‘s power to institute criminal proceedings in terms of section 179(2)
of the Constitution17 read with the National Prosecuting Authority Act18 is limited. And
this limitation is arbitrary and unjustifiable, and thus unconstitutional.
[27]
The lack of rationality, it is contended, is evinced by the following. Although
rape is the ―most reprehensible form of sexual assault‖, as noted by this Court in
Masiya,19 other forms of sexual abuse also constitute ―a humiliating, degrading and
brutal invasion of the dignity and the person of the survivor‖.20 Sexual abuse in all
forms, not only rape, infringes the survivor‘s right to bodily and psychological
integrity.21 The applicants submit that the state has a duty in terms of section 7(2) of
the Constitution to respect, promote and fulfil this right, which they contend it failed to
Section 179(2) of the Constitution provides that ―[t]he prosecuting authority has the power to institute criminal
proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal
proceedings‖.
17
18
32 of 1998.
19
Masiya v Director of Public Prosecutions, Pretoria [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827
(CC) at para 36.
20
Id.
21
Section 12(2) of the Constitution.
13
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