The ticking clock of prescription in cases of historical sexual abuse

by | Oct 12, 2019 | SACJ, SACJ V31 I3 2018

The ticking clock of prescription in cases of historical sexual abuse

Authors Andre Mukheibir, Joanna Botha, Gregory Mitchell

ISSN: 1996-2118
Affiliations: Professor of Law, Nelson Mandela University; Senior Lecturer, Nelson Mandela University; Clinical Psychologist and Catholic Priest (Congregation of the Oratory of St Philip Neri)
Source: South African Journal of Criminal Justice, Volume 31 Issue 3, p. 361 – 390

Abstract

Rape and sexual abuse infringe a number of fundamental human rights of victims, in particular the rights to dignity and freedom and security of the person. Abuse cases are, furthermore, often shrouded in secrecy and victims may only consider legal action many years after the fact. The crime of rape does not prescribe, but until recently the sexual abuse other than rape or compelled rape prescribed after 20 years. In the case of Levenstein v Estate Frankel (2018 (2) SACR 283 (CC)) the Constitutional Court held that the prescription period was unconstitutional and should be abolished. The ‘Frankel Eight’ intend challenging the prescription periods for delictual actions. The rules of prescription in delictual cases have already been relaxed, frst by the Supreme Court of Appeal in Van Zijl v Hoogenhout ([2004] 4 All SA 427 (SCA)), and thereafter by the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Act 32 of 2007), but a victim would still have to prove that her ‘inability’ caused the delay in her bringing the action. It is our contention that, given the debilitating nature of the harm, the Prescription Act (Act 18 of 1969) should be amended to abolish prescription altogether for the purposes of delictual actions for both rape and sexual abuse, because several fundamental rights, in particular the right to dignity, are infringed. Alternatively, section 12(4) of the Act should be amended to provide for a broad judicial discretion for determining whether the victim is able to institute action and whether good cause has been shown for the delay.

Immunity before the International Criminal Court: Still hazy after all these years

by | Oct 12, 2019 | SACJ, SACJ V31 I3 2018

Immunity before the International Criminal Court: Still hazy after all these years

Authors Linda Mushoriwa

ISSN: 1996-2118
Affiliations: None
Source: South African Journal of Criminal Justice, Volume 31 Issue 3, p. 339 – 360

Abstract

This article examines the increasingly deteriorating relationship between the African Union (AU) and the International Criminal Court (ICC OR ‘the Court’). It explains that the tension between the AU and the ICC is primarily centred on the issue of Head of State immunity before the Court. The contradictory nature of the provisions in article 27 (2) and article 98 (1) of the Rome Statute of the International Criminal Court (Rome Statute) regarding the immunity of state offcials before the ICC has contributed signifcantly to this tension. The inconsistent jurisprudence of the ICC regarding the immunity question before the Court is examined and it is asserted that Jordan’s appeal against Pre-Trial Chamber II’s Decision on non-cooperation and the possibility of an ICJ Advisory Opinion on the issue of Head of State Immunity before the Court; both present an opportunity for the clarifcation of the interpretation of article 98 (1) of the Rome Statute. The article concludes that although the work of the ICC is important in ensuring accountability for alleged human rights violations, the Rome Statute cannot operate in isolation, divorced from the realities of the travel of leaders such as Sudanese President Omar Al-Bashir; for legitimate intergovernmental business.