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ZONDI AJ [83] The Minister opposes the appeal by the Estate on the grounds that Mr Frankel actively opposed the application right until his death and his opposition was only withdrawn thereafter. Thus his Estate should bear the costs as ordered. As for the agreement between the applicants and the Estate, the Minister submits that the High Court was correct in disregarding it. The High Court‘s ruling in this regard is not without authority. This Court noted in Malachi that— ―[t]his Court is, however, not bound by that agreement. Costs are a matter which lies entirely within the discretion of this Court, to be exercised with due regard to the particular circumstances of each case.‖72 [84] Relying on this dictum the Minister submits that this Court cannot be bound by the agreement between the applicants and the Estate regarding costs. In the alternative, the Minister submits that should this Court find that the applicants have indeed waived their right to claim costs as per the agreement, this Court should direct that the Minister is liable for only 50 percent of the costs incurred up until 20 January 2017. [85] The award of costs is a matter within the discretion of the court. The discretion inherent in the decision to award costs is one that must be exercised judicially having regard to all the relevant considerations.73 An appeal court will only interfere with the exercise of that discretion if it is demonstrated that it has not been exercised judicially or has been exercised based on a wrong appreciation of the facts or wrong principle of law. [86] The question is whether the High Court breached the principle of pacta sunt servanda when it refused to uphold the agreement and ordered the Estate to pay costs. It is correct that the general principle is that courts will enforce contracts between private parties which are entered into freely and voluntarily, and as long as 72 Malachi v Cape Dance Academy International (Pty) Ltd [2010] ZACC 24; 2010 (6) SA 1 (CC); 2011 (3) BCLR 276 (CC) at para 52. 73 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) at para 138. 35

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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

Primary Documents

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