The ticking clock of prescription in cases of historical sexual abuse
Authors Andre Mukheibir, Joanna Botha, Gregory Mitchell
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
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 ( 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.