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ZONDI AJ to rectify the impugned provision. In Auction Alliance this Court held that suspension is not an exceptional remedy.61 It made it clear that suspension is an obvious use of its remedial power under the Constitution to ensure that just and equitable constitutional relief is afforded to litigants while ensuring that there is no disruption of the regulatory aspects of the statutory provision that is invalidated.62 [75] The Minister has requested that a declaration of invalidity be suspended for 24 months to enable Parliament to enact remedial legislation. I do not think that the period sought by the Minister can be said to be unreasonably long to enact a statute which will be constitutionally compliant having regard to the sensitivity of the impugned provisions and the need to obtain the views of various public interest groups on the extent of the amendment of section 18. This Court in Teddy Bear Clinic held that in a participatory democracy, Parliament is best-suited to ensure that the ultimate statutory regime is decided upon in an open, inclusive and transparent manner, with all relevant parties who so desire being given an opportunity to shape the debate and the eventual outcome.63 Another consideration is that the suspension would not cause the applicants or similarly situated survivors of sexual assault any prejudice as the suspension order is coupled with an interim reading-in. [76] And should Parliament fail to enact remedial legislation within 24 months from the date of this order without seeking and obtaining an extension, the interim reading-in remedy will become final. [77] The next issue for consideration is the date from which the declaration of invalidity should run. Section 18 was substituted by section 27(1) of the Criminal Law Amendment Act.64 Although the Act came into operation on 13 November 1998, 61 Estate Agency Affairs Board v Auction Alliance (Pty) Ltd [2014] ZACC 3 (CC); 2014 (3) SA 106 (CC); 2014 (4) BCLR 373 (CC) (Auction Alliance) at para 55. 62 Id. 63 Teddy Bear Clinic above n 59 at para 109. 64 Above n 31. 32

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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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