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ZONDI AJ Instead, Mr Frankel argued, the applicants based their case on the constitutional invalidity of SORMA, which came into force on 16 December 2007 and therefore section 18 would be constitutionally invalid as of this date. As a result, Mr Frankel contended that the applicants would not be able to obtain relief in relation to the alleged criminal offences which took place approximately 30 years ago. Mr Frankel‘s defences prompted the applicants to amend their notice of motion by seeking an order declaring that section 18 was invalid to the extent that it bars, in all circumstances, the right to institute a prosecution for all sexual offences suffered by children, other than rape or compelled rape, after the lapse of a period of 20 years from the time the offence was committed. Pursuant to this amendment, in January 2017 Mr Frankel withdrew his opposition to the relief sought in prayer 1 of the notice of motion but persisted in opposing the relief sought in prayer 2 based on the principle of legality, which is the position he maintained until his demise in April 2017 shortly before the hearing of the matter in the High Court. In the High Court [11] Notwithstanding the agreement between the applicants and Mr Frankel, that the relief sought should be confined to children, the High Court held that there were no reasons to do so. It concluded that the relief should apply to child and adult survivors of sexual assaults. The High Court based its conclusion on two grounds. First, it reasoned that section 18(f) itself does not make a distinction between children and adults and it would be nonsensical for the Court to artificially confine the relief to children only, when section 18(f) does not impose any such restriction. Second, the common law crime of indecent assault does not make such distinction either; indecent assault can be committed against both adults and children. The Court therefore accepted that the broader relief, as framed by the amici, was the most appropriate relief to grant, should section 18 be declared unconstitutional and invalid.5 5 High Court judgment above n 2 at paras 37-41. 7

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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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