Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others (CCT170/17) [2018] ZACC 16; 2018 (8) BCLR 921 (CC); 2018 (2) SACR 283 (CC) (14 June 2018)

Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others (CCT170/17) [2018] ZACC 16; 2018 (8) BCLR 921 (CC); 2018 (2) SACR 283 (CC) (14 June 2018)

Section 18 of the Criminal Procedure Act 51 of 1977 is unconstitutional to the extent that it bars, in all circumstances, the right to institute prosecution for sexual offences other than rape or compelled rape after 20 years. The distinction drawn by section 18 is irrational and arbitrary, as all sexual offences can cause similar harm and delayed disclosure is common among survivors due to trauma, fear, and social pressures. The prescription period unjustifiably limits the prosecutorial power and violates constitutional rights to dignity, equality, and protection from abuse. The declaration of invalidity is suspended for 24 months to allow Parliament to enact remedial legislation, with...

Citation
[2018] ZACC 16
Parties
Applicant: Nicole Levenstein; Applicant: Paul Diamond; Applicant: George Rosenberg; Applicant: Katherine Rosenberg; Applicant: Daniella McNally; Applicant: Lisa Wegner; Applicant: Shane Rothquel; Applicant: Marinda Smith; Respondent: Estate of the late Sidney Lewis Frankel; Respondent: Minister of Justice and Correctional Services; Respondent: Director of Public Prosecutions, Gauteng; Respondent: Trustees for the time being of the Women’s Legal Centre Trust; Respondent: Teddy Bear Clinic; Respondent: Lawyers for Human Rights
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
14 June 2018
Case Number
CCT 170/17
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Declaration of Invalidity; Appeal on Costs
Outcome
Declaration of constitutional invalidity of section 18 of the Criminal Procedure Act confirmed; order suspended for 24 months with interim reading-in; retrospective effect to 27 April 1994; Estate's appeal on costs dismissed; Minister to pay costs of confirmation proceedings.
Judges
Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J, Zondi AJ
Legal Topics
Prescription of Criminal Prosecution, Sexual Offences, Irrational Legislative Distinction, Reading in Remedy, Retrospective Effect, Costs in Constitutional Litigation
Constitutional Law Criminal Law Prescription of Criminal Prosecution Sexual Offences Irrational Legislative Distinction Reading in Remedy Retrospective Effect Costs in Constitutional Litigation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 15 Party arguments 2
Sign in to unlock

Parties

Nicole Levenstein

Applicant

Paul Diamond

Applicant

George Rosenberg

Applicant

Katherine Rosenberg

Applicant

Daniella McNally

Applicant

Lisa Wegner

Applicant

Shane Rothquel

Applicant

Marinda Smith

Applicant

Estate of the late Sidney Lewis Frankel

Respondent

Minister of Justice and Correctional Services

Respondent

Director of Public Prosecutions, Gauteng

Respondent

Trustees for the time being of the Women’s Legal Centre Trust

Respondent

Teddy Bear Clinic

Respondent

Lawyers for Human Rights

Respondent

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Declaration of Invalidity; Appeal on Costs

Legal Issues

  1. 1 Whether section 18 of the Criminal Procedure Act 51 of 1977 is unconstitutional for barring prosecution of sexual offences other than rape or compelled rape after 20 years.
  2. 2 Whether the distinction drawn by section 18 between rape/compelled rape and other sexual offences for prescription purposes is rational.
  3. 3 What is the appropriate remedy if section 18 is unconstitutional, including suspension, reading-in, and retrospective effect.

Ratio Decidendi

Section 18 of the Criminal Procedure Act 51 of 1977 is unconstitutional to the extent that it bars, in all circumstances, the right to institute prosecution for sexual offences other than rape or compelled rape after 20 years. The distinction drawn by section 18 is irrational and arbitrary, as all sexual offences can cause similar harm and delayed disclosure is common among survivors due to trauma, fear, and social pressures. The prescription period unjustifiably limits the prosecutorial power and violates constitutional rights to dignity, equality, and protection from abuse. The declaration of invalidity is suspended for 24 months to allow Parliament to enact remedial legislation, with...

Court Disposition

Declaration of constitutional invalidity of section 18 of the Criminal Procedure Act confirmed; order suspended for 24 months with interim reading-in; retrospective effect to 27 April 1994; Estate's appeal on costs dismissed; Minister to pay costs of confirmation proceedings.

Orders

  • The declaration of constitutional invalidity of section 18 of the Criminal Procedure Act 51 of 1977 made by the High Court is confirmed.
  • The order is suspended for 24 months from the date of this order to afford Parliament an opportunity to enact remedial legislation.