ZONDI AJ consequences of the ambiguity created by the law as at the time of conviction. The evidence adduced at the trial established that Mr Masiya was guilty of indecent assault. To convict him of rape would be in violation of his right as envisaged in section 35(3)(l) of the Constitution. I conclude therefore that the developed definition should not apply to Mr Masiya.‖48 (Footnotes omitted.) [63] In Savoi this Court held that the rule against retrospectivity was no longer a tool of interpretation but rather constituted a fundamental right not to be subjected to retrospective provisions.49 [64] The High Court, relying on Bothma,50 held that an accused‘s right to a fair trial would be no more prejudiced in a prosecution after 20 years for sexual offences, than his rights in a prosecution after 20 years for rape or compelled rape. This conclusion was predicated on a finding that rights to a fair trial, coupled with the state‘s discretion on whether to prosecute based on the cogency and reliability of the evidence at its disposal, would serve to reduce any prejudice an accused person might have experienced as a result of a delay in prosecution beyond 20 years.51 [65] I agree with the High Court‘s conclusion. On the facts presented by the applicants, Mr Frankel could have been prosecuted for the common law offence of indecent assault as that was the crime at the time it was committed. The declaration of invalidity of section 18 does not therefore give rise to a new act which was not unlawful at the time it was committed. Remedy [66] It remains to consider an appropriate remedy. The constitutional invalidity of section 18 arises from that portion which bars, in all circumstances, the right to institute 48 Masiya above n 19 at paras 54 and 56-7. 49 Savoi v National Director of Public Prosecutions [2014] ZACC 5; 2014 (5) SA 317 (CC); 2014 (5) BCLR 606 (CC) at para 78. 50 Bothma above n 15 at para 82. 51 High Court judgment above n 2 at paras 81-3. 27