Moya Rossouw

Section 18 of Criminal Procedure Act 81 of 1977 (hereafter: “CPA”) states that a case cannot be brought against a person accused of sexual abuse if the alleged incident happened more than twenty years ago.

The South Gauteng High Court in Johannesburg recently heard an application which challenged this section of the law, which afforded the State a maximum period of 20 years to prosecute a sexual assault or offence. The Court ruled that there will no longer be a restriction of the 20 year period in order to pursue a claim for sexual assault.

This application was based on the case of the deceased philanthropist and established stockbroker, Sidney Frankel. His eight alleged victims accused him of molesting them as children and sought to prosecute Frankel for offences committed over 20 years ago.

The Court further suspended the constitutional invalidity of this section of the CPA for 18 months, subject to Parliament’s confirmation to remedy this constitutional defect.
The reasoning behind having time limitations in place, is that it becomes difficult for the State to prosecute a suspect years after the criminal act took place. As victims and witnesses memories fade by the passing of time, evidence disappears.

However, many victims are young and susceptible to grooming and manipulation and often the perpetrators are known and trusted by their victims. By removing the time limit, victims are now afforded the opportunity to deal with their traumatic experience and seek therapy. They are then able to face their perpetrators when they are emotionally and psychologically ready to do so, which is often only during adulthood.

The National Prosecuting Authority will now in all likelihood be faced with a huge intake of cases which have never been reported before.

If the Constitutional Court confirms that this restriction is unconstitutional, this provision will explicitly abolish the time bar for all sexual offences except rape. It thus sends a clear message that such claims will not be thwarted due to the passage of time, and it therefore validates the experience of survivors by implicitly acknowledging that the nature of the victims injuries as well as the emotional and physiological trauma suffered may result in many years passing before any action is even contemplated.

The significance of this finding for victims of sexual abuse is that offenders now know that they are not protected by time and the vulnerability of their young victims. Young victims of sexual assault offences may now also feel encouraged to report their cases.