L and Others v Frankel and Others (29573/2016) [2017] ZAGPJHC 140; 2017 (2) SACR 257 (GJ) (15 June 2017)

L and Others v Frankel and Others (29573/2016) [2017] ZAGPJHC 140; 2017 (2) SACR 257 (GJ) (15 June 2017)

Section 18 of the Criminal Procedure Act is unconstitutional and invalid to the extent that it bars, in all circumstances, the right to institute prosecution for sexual offences other than those listed in sections 18(f), (h), and (i) after 20 years. The distinction between rape/compelled rape and other sexual offences is irrational and arbitrary, given the evidence of delayed disclosure and trauma suffered by victims of all sexual offences. The limitation infringes rights to dignity, equality, and access to justice, and is not justifiable under section 36. The invalidity applies to all victims, not only children, and retrospective application is warranted as the conduct was criminal at...

Citation
[2017] ZAGPJHC 140
Parties
Applicant: N L; Applicant: P D; Applicant: G R; Applicant: K R; Applicant: D M; Applicant: L W; Applicant: S R; Applicant: M S; Respondent: Sydney Lewis Frankel; Respondent: Minister of Justice and Correctional Services; Respondent: Director of Public Prosecutions, Gauteng
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 June 2017
Case Number
29573/2016
Procedural Posture
Constitutional Application / High Court Judgment on Constitutional Validity
Outcome
Section 18 of the Criminal Procedure Act declared unconstitutional and invalid to the extent that it bars prosecution for sexual offences other than those listed after 20 years; declaration suspended for 18 months; interim reading-in ordered; costs awarded jointly and severally against First and Second Respondents...
Judges
Hartford
Legal Topics
Prescription of Crimes, Sexual Offences, Bill of Rights Limitation, Constitutional Invalidity, Delayed Disclosure, Retrospective Application
Constitutional Law Criminal Law Prescription of Crimes Sexual Offences Bill of Rights Limitation Constitutional Invalidity Delayed Disclosure Retrospective Application

Case Brief

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Parties

N L

Applicant

P D

Applicant

G R

Applicant

K R

Applicant

D M

Applicant

L W

Applicant

S R

Applicant

M S

Applicant

Sydney Lewis Frankel

Respondent

Minister of Justice and Correctional Services

Respondent

Director of Public Prosecutions, Gauteng

Respondent

Procedural Posture

Constitutional Application / High Court Judgment on Constitutional Validity

Legal Issues

  1. 1 Whether section 18 of the Criminal Procedure Act 51 of 1977 is unconstitutional and invalid to the extent that it bars prosecution for sexual offences other than rape or compelled rape after 20 years.
  2. 2 Whether the invalidity should apply only to offences against children or to all victims.
  3. 3 Whether the limitation imposed by section 18 is justifiable under section 36 of the Constitution.

Ratio Decidendi

Section 18 of the Criminal Procedure Act is unconstitutional and invalid to the extent that it bars, in all circumstances, the right to institute prosecution for sexual offences other than those listed in sections 18(f), (h), and (i) after 20 years. The distinction between rape/compelled rape and other sexual offences is irrational and arbitrary, given the evidence of delayed disclosure and trauma suffered by victims of all sexual offences. The limitation infringes rights to dignity, equality, and access to justice, and is not justifiable under section 36. The invalidity applies to all victims, not only children, and retrospective application is warranted as the conduct was criminal at...

Court Disposition

Section 18 of the Criminal Procedure Act declared unconstitutional and invalid to the extent that it bars prosecution for sexual offences other than those listed after 20 years; declaration suspended for 18 months; interim reading-in ordered; costs awarded jointly and severally against First and Second Respondents...

Orders

  • Section 18 of the Criminal Procedure Act, 51 of 1977, is declared inconsistent with the Constitution and invalid to the extent that it bars, in all circumstances, the right to institute prosecution for all sexual offences, other than those listed in sections 18(f), (h), and (i), after 20 years from the time the...
  • The declaration of constitutional invalidity is suspended for 18 months to allow Parliament to remedy the defect.