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ZONDI AJ [4] The confirmation proceedings raise three interrelated questions. The first is whether section 18 of the CPA is inconsistent with the Constitution. The second, which arises only if section 18 is inconsistent with the Constitution, relates to the appropriate relief; whether the declaration of invalidity should be suspended with or without an interim reading-in and whether it should apply prospectively or retrospectively. The third relates to the question of costs in this Court. Parties [5] The eight applicants are adult males and females who all allege that they were sexually assaulted by Mr Frankel when they were children. [6] The first respondent is the Estate which substituted Mr Frankel after his death in April 2017, before the hearing in the High Court. The second respondent is the Minister of Justice and Correctional Services (Minister). [7] The fourth to sixth respondents are the WLC, Teddy Bear Clinic (TBC), and Lawyers for Human Rights (LHR). These respondents were amici in the High Court. Background and litigation history [8] During the period between 1970 and 1989, when the applicants were aged between 6 and 15 years old, Mr Frankel is alleged to have sexually assaulted them. As a result of the alleged sexual assaults, the applicants claim to have suffered physical, emotional, and psychological trauma. The effect of a 20-year prescription period imposed by section 18, for all sexual offences other than rape or compelled rape meant that the right to prosecute Mr Frankel for the sexual assaults he allegedly perpetrated against the applicants prescribed between 1998 and 2011. The applicants allege that they did not institute criminal proceedings against Mr Frankel within the period prescribed by section 18 because of lack of full appreciation of the nature and extent of the criminal acts allegedly perpetrated on them by him. They say they acquired full 5

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NICOLE LEVENSTEIN et al v Estate of the late SIDNEY LEWIS FRANKEL, 2018

Cases

Country

Latitude: -31.005484474142992

Longitude: 23.460146846172638

Country (linked Cases): South Africa

Court location: South Africa: Johannesburg

Court: South Africa: Constitutional Court, South Africa

Date of judgement: Jun 14, 2018

Keywords

Best interests of the Child
Child abuse
Defilement (Rape of children)
Right to dignity
Right to fair trial
Sexual assault
Sexual offences

Gender of victim

Female: Girl (under 18)

Gender of accused/perpetrator

Male: Man (18+)

Language: English

Summary: This case concerns two applicants who alleged that the Late Mr. Frankel had sexually assaulted them. As a result of the assault, the applicants claimed to have suffered physical, emotional and psychological trauma. The constitution states that it bars the right to institute prosecution for all sexual offenses, other than the offenses after the lapse of 20 years from the time when the offenses were committed. The applicants argued that this section of the constitution violates their right to human dignity; equality and non-discrimination; to be protected from abuse as children; to be free from all forms of violence from both public and private sources; and access to courts. The court then suspended declaration of constitutional invalidity for 18 months to allow parliament to remedy the constitutional defect.

Mr. Frankel has since died and his state has been substituted as the first respondent. The estate logged an application for leave to appeal against the costs of the high court.

The court accepted that the survivors of sexual assault face similar personal, social and structural disincentives when reporting these offenses, and that the harm caused by sexual offenses is similar, regardless of whether it is the consequence of rape or other forms of sexual assault. The court also ordered the minister to pay the costs of the confirmation proceedings, and dismissed the estates appeal against the costs order of the high court. The court held that the agreement whereby the applicants waived their rights to seek costs against the estate goes beyond the confines of the parties to the agreement – instead its terms affect the Minister; a party to the proceedings whose consent had not been obtained for the conclusion of the agreement.

Primary Documents

Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others - statute of limitation and impact on adults to institute cases for offences they suffered as children.pdf
English
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NICOLE LEVENSTEIN et al v Estate of the late SIDNEY LEWIS FRANKEL, 2018

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