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ZONDI AJ [22] Rule 31 of this Court‘s Rules permits any party to any proceedings before the Court including a properly admitted amicus curiae ―to canvass factual material which is relevant to the determination of the issues before the Court and which does not specifically appear on the record‖ provided that ―such facts are common cause or otherwise incontrovertible; or are of an official, scientific, technical or statistical nature capable of easy verification‖. [23] This Court in Prince held that, where the new evidence sought to be canvassed is disputed, it undoubtedly demonstrates that the new evidence is not ―capable of easy verification‖ and similarly is not incontrovertible.14 [24] The evidence which the WLC seeks to introduce should be admitted. None of the parties objected to its admission. The new evidence, which is entirely uncontested, sets out the effect of rape trauma on adult survivors reporting sexual assault and getting support thereafter. It is the only evidence we have that relates to adult trauma syndrome. The findings of this Court on the nature and extent of rape trauma syndrome would be a welcome addition to this Court‘s jurisprudence since its judgment in Bothma.15 Moreover in order to consider the full extent of the impact of section 18, and whether it serves an important public interest, it is necessary to have information on the prevalence of sexual offences against women in South Africa and the percentage of female survivors of sexual offences who elect not to formally report the offences to the South African Police Service (SAPS) and why they do not do so. This is what the new evidence seeks to highlight. For instance the new evidence shows that in the ―Victims of Crime Survey 2015/2016‖, a report by Statistics South Africa, only 35.5 percent of survivors reported sexual offences to SAPS, which is quite alarming.16 Failure to report 14 Prince v President, Cape Law Society of the Cape of Good Hope [2002] ZACC 1; 2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC) at para 10. See also Prophet v National Director of Public Prosecutions [2006] ZACC 17; 2006 (2) SACR 525 (CC); 2007 (2) BCLR 140 (CC) at para 33 and S v Lawrence; S v Negal; S v Solberg [1997] ZACC 11; 1997 (4) SA 1176 (CC); 1997 (10) BCLR 1348 (CC) at para 23. 15 Bothma v Els [2009] ZACC 27; 2010 (2) SA 622 (CC); 2010 (1) BCLR 1 (CC). 16 ―Victims of Crime Survey 2015/2016‖ above n 13 at 13. 12

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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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