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ZONDI AJ [12] The High Court, after analysing the historical development of section 18 and the extent to which it affects the discretionary powers of the National Prosecuting Authority (NPA), concluded that there was no rational basis for distinguishing rape or compelled rape from other sexual offences for purposes of prescription. That conclusion was based on the expert evidence presented, detailing the reasons why there is often delayed disclosure relating to all sexual offences and not just rape or compelled rape. The Court accepted expert evidence in this regard, and held that even though the reasons for delayed reporting only relate to children – delayed disclosure or reporting stems from all forms of abuse and therefore these traumatic symptoms and pressures apply equally to adult survivors of sexual abuse.6 [13] The High Court held that it was entirely irrational and arbitrary to create a random cut-off period of 20 years for prescription of sexual offences, when there is a sufficient body of evidence demonstrating that these offences inflict deep continuous trauma on survivors. Many survivors suffer quietly and either never disclose the offences at all, with the perpetrator escaping all consequences, or disclose over varying lengths of time after the offences were committed.7 [14] The High Court also held that the exclusion contemplated in section 18 breaches the survivors‘ rights to dignity and equality.8 [15] In addition, the High Court dealt with the question whether prosecuting Mr Frankel for offences which occurred more than 20 years earlier would have violated the principle of legality which is specifically confirmed in section 35(3)(l)9 and section 35(3)(n)10 of the Constitution. The principle of legality prevents arbitrary 6 Id at paras 51-2. 7 Id at para 67. 8 Id at paras 76 and 78. 9 Section 35(3)(l) prohibits a conviction for an act or omission that was not an offence under national or international law at the time it was committed or omitted. 10 Section 35(3)(n) affords an accused the least severe punishment, where the prescribed punishment for the offence has changed between the commission of the offence and the time of sentencing. 8

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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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