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Kenya Law / Blog / Case Summary: A prescription period distinguishing between rape or compelled rape, and other sexual offences is irrational and arbitrary thus unconstitutional as the harm caused by sexual offences is gravely similar.

A prescription period distinguishing between rape or compelled rape, and other sexual offences is irrational and arbitrary thus unconstitutional as the harm caused by sexual offences is gravely similar.

Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others

Constitutional Court of South Africa

2018 ZACC 16

Zondo ACJ, Cameron, Froneman, Jafta, Madlanga, Mhlantla, Theron JJ and Kathree-Setiloane, Kollapen, Zondi AJJ

June 14, 2018

Reported by Faith Wanjiku

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Constitutional Law-Bill of Rights- rightto institute prosecution -prescription of rightto institute prosecution-offence of sexual assault- whether section 18 of the Criminal Procedure Act on prescription of right to prosecute the offence of sexual assault after 20 years contrary to the offences of rape or compelled rape was inconsistent with the Constitution by treating the survivors of sexual violence selectively- Constitution of the Republic of South Africa, 1996; Criminal Procedure Act, section 18

Constitutional Law-constitutionality of statutes-section 18 of the Criminal Procedure Act-prescription of right to institute prosecution-whether the offending portion of section 18 should be struck down with immediate effect or should be suspended to allow Parliament to enact remedial legislation-Constitution of the Republic of South Africa, 1996,sections 9 and 10

Constitutional Law-Bill of Rights-right to a fair trial-where the law applied to an offence retrospectively-whether the declaration of constitutional invalidity by applying retrospectively would affect the right to a fair trial of an accused implicated in offences that occurred more than 20 years earlier.

Constitutional Law-constitutional remedies-declaration of invalidity-where an amendment was to be added to the application of the declaration of invalidity- whether as an appropriate relief the declaration of invalidity should be suspended with or without an interim reading-in and whether it should apply prospectively or retrospectively.

Evidence Law-Documents lodged to canvass factual materialwhere material wasrelevant to the determination of the issues before the Court and which did not specifically appear on the record - whether the Application by the 4th Respondent to adduce further evidence that it contended would assist the Court in determining the impact of section 18 of the CPA could be admitted-Rules of the Constitutional Court, rule 31

Brief Facts

During the period between 1970 and 1989, when the Applicants were aged between 6 and 15 years old, the late Mr. Frankel (Respondent) was alleged to have sexually assaulted them. As a result of the alleged sexual assaults, the Applicants claimed to have suffered physical, emotional, and psychological trauma. The effect of the imposition of a 20-year prescription period, provided for in section 18 of the Criminal Procedure Act 51 of 1977(the CPA), for all sexual offences other than those referred to above, meant that the alleged offences prescribed between 1999 and 2011. The Applicants alleged that it was only after they acquired full appreciation of the criminal acts committed by the Respondent, between June 2012 and June 2015 that they instituted civil and criminal action against him. The Director of Public Prosecutions, Gauteng, however, declined to prosecute, on the ground that the right to prosecute the Respondent for the offences concerned had prescribed in terms of section 18.

The Applicants applied to the High Court for an order declaring that section 18 of the CPA was inconsistent with the Constitution and invalid to the extent that it barred the right to institute a prosecution for all sexual offences, other than the offences listed above, after the lapse of a period of 20 years from the time when the offences were committed. The Applicants contended that section 18 was irrational and arbitrary and therefore unconstitutional and invalid, because it made an arbitrary distinction in respect of the gravest of crimes. They further contended that it unjustifiably violated their right to human dignity; equality and non-discrimination; to be protected from abuse as children; to be free from all forms of violence from both public and private sources; and access to courts.

The High Court declared section 18 of the CPA unconstitutional and invalid as the distinction it provided for was irrational and arbitrary. Further, the Court held that section 18 unjustifiably limited survivors of sexual offences’ rights to equality and human dignity, as contemplated in sections 9 and 10 of the Constitution of the Republic of South Africa, 1996 (the Constitution), respectively. The Court suspended the declaration of constitutional invalidity for a period of 18 months to allow Parliament to remedy the constitutional defect. It further ordered that, pending the enactment of remedial legislation by Parliament, section 18(f) of the CPA was to be read as though the 20-year prescription period did not apply to all other sexual offences, whether in terms of common law or statute. To achieve that, the Court added (read-in) appropriate words to section 18(f).

In the Constitutional Court, the Applicants did not support the portion of the order suspending the declaration of invalidity. The Applicants contended that there was no basis for suspending the declaration. They argued that the suspension coupled with an interim reading-in order was technically flawed on the ground that, should Parliament fail to enact remedial legislation within the specified period, the declaration of invalidity became operative without the words that had been read-in. That, they said, would not be just and equitable. The Applicants therefore called for a declaration of invalidity coupled with a reading-in, without suspending the declaration of invalidity, to allow Parliament to cure the defect.

Issues

       i. Whether section 18 of the Criminal Procedure Act on prescription of right to prosecute the offence of sexual assault after 20 years contrary to the offences of rape or compelled rape was inconsistent with the Constitution by treating the survivors of sexual violence selectively.

      ii. Whether the offending portion of section 18 should be struck down with immediate effect and when it would take effect or should be suspended to allow Parliament to enact remedial legislation.

     iii. Whether as an appropriate relief the declaration of invalidity should be suspended with or without an interim reading-in and whether it should apply prospectively or retrospectively.

   iv. Whether the declaration of constitutional invalidity by applying retrospectively would affect the right to a fair trial of an accused implicated in offences that occurred more than 20 years earlier.

     v. Whether the High Court breached the principle of pacta sunt servanda when it refused to uphold the agreement and ordered the Estate to pay costs.

   vi. Whether the Application by the 4th Respondent to adduce further evidence that it contended would assist the Court in determining the impact of section 18 of the CPA could be admitted.

Relevant Provisions of the Law

Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996)

Section 9-Equality

(1)   Everyone is equal before the law and has the right to equal protection and benefit of the law.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

Section 10-Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

Criminal Procedure Act 51 of 1977

Section 18-Prescription of right to institute prosecution

The right to institute a prosecution for any offence, other than the offences of-

(f) rape or compelled rape as contemplated in sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively;

shall, unless some other period is expressly provided for by law, lapse after the expiration of a period of 20 years from the time when the offence was committed.

Held:

  1. Rule 31 of the Court’s Rules permitted any party to any proceedings before the Court including a properly admitted amicus curiae to canvass factual material which was relevant to the determination of the issues before the Court and which did not specifically appear on the record provided that such facts were common cause or otherwise incontrovertible; or were of an official, scientific, technical or statistical nature capable of easy verification. Where the new evidence sought to be canvassed was disputed, it undoubtedly demonstrated that the new evidence was not capable of easy verification and similarly was not incontrovertible.
  2. The evidence which the 4th Respondent sought to introduce should be admitted. None of the parties objected to its admission. The new evidence, which was entirely uncontested, set out the effect of rape trauma on adult survivors reporting sexual assault and getting support thereafter. It was the only evidence the Court had that related to adult trauma syndrome. The findings of the Court on the nature and extent of rape trauma syndrome would be a welcome addition to the Court’s jurisprudence. In order to consider the full extent of the impact of section 18, and whether it served an important public interest, it was necessary to have information on the prevalence of sexual offences against women in South Africa and the percentage of female survivors of sexual offences who elected not to formally report the offences to the South African Police Service (SAPS) and why they did not do so. That was what the new evidence sought to highlight. For instance, the new evidence showed that in the Victims of Crime Survey 2015/2016, a report by Statistics South Africa, only 35.5 percent of survivors reported sexual offences to SAPS, which was quite alarming. Failure to report crimes to the police in general and in particular those involving sexual violence undermined the efforts of the government to combat and ultimately eradicate the scourge of sexual offences.
  3. The constitutional requirement of rationality was an incident of the rule of law, which in turn was a founding value of the Constitution. The rule of law required that all public power had to be sourced in law. That meant that state actors exercised public power within the formal bounds of the law. Thus, when making laws, the legislature was constrained to act rationally. It could not act capriciously or arbitrarily. It could only act to achieve a legitimate government purpose. Thus, there had to be a rational nexus between the legislative scheme and the pursuit of a legitimate government purpose. The requirement was meant to promote the need for governmental action to relate to a defensible vision of the public good and to enhance the coherence and integrity of legislative measures.
  4. When rape or compelled rape was excluded from the reach of the prescription period of 20 years that was not done for the purposes of protecting and advancing the interests of the survivors of sexual offences. The primary rationale for differentiation between sexual offences in section 18 seemed to be based on a consideration that certain sexual offences were more serious than others. In those circumstances the use of prescriptive periods in section 18 as a basis to distinguish between rape or compelled rape and other forms of sexual assault when the harm they all caused to their survivors was similar, was irrational. Enacting legislation involved the exercise of public power and that being the case the Legislature was required to act in a rational manner when it exercised its legislative power. The section, by over-emphasising the significance of the nature of the criminal act at the expense of the harm that it produced to the survivors, failed to serve as a tool to protect and advance the interests of survivors of sexual assault. It worked against their interests instead of promoting them. The criminal justice system should play a role that supported the survivors of crimes involving sexual violence and created mechanisms that would encourage them to come forward more so in view of the fact that such crimes had become prevalent.
  5. The prescription period of 20 years imposed by section 18 was insufficiently cognisant of the nature and process of sexual assault disclosure. That sentiment was also shared by the 4th Respondent. According to the 4th Respondent, there were numerous reasons why adult survivors chose to report the sexual offence against them after a long period of time. Personal circumstances of the survivor could change; with time came maturity and an ability to process the trauma suffered as a result of the violence. She could seek out psychological help, such as counselling, which empowered her to enter the criminal justice system. The 4th Respondent pointed out that survivors develop resilience over time, and together with resolution of the trauma were able to report the matter to the police or the survivor could change communities with which she engaged which could be more accepting of women who were sexually abused. She could have a supportive partner later on in life who believed her and supported and encouraged her to report to the police. Someone else could report a sexual offence committed by the same perpetrator which could give the survivor courage to report.
  6. It was apparent that section 18 was out of touch with the development regarding the application of prescription in relation to sexual offences. The Supreme Court of Appeal in Van Zijl held that the purpose of prescription was to penalise unreasonable inaction, and not inability to act. That Court in Bothma appreciated the positive development that had taken place in the past two decades regarding the willingness of the survivors of sexual assault to come forward about their past. In these days survivors of sexual assault feel empowered to come to grips with and denounce sexual abuse they had suffered as children. They have become more informed about their condition and rights and have received support from public interest groups. There is healing power in groups. The survivors find solace in each other’s words; they feel more empowered to bare their souls and relate their painful experiences. Rape had the inherent effect of rendering child survivors unable to report the crime, sometimes for several decades, and that the policy was not to penalise them for the consequences of their abuse by blaming them for the delay. That applied with equal force to survivors of all forms of sexual violence though it was made in the context of rape. The effect of section 18 was that it penalised even a complainant whose delay was caused by or due to his or her inability to act by preventing him or her from pursuing a charge even if he or she could have a reasonable explanation for the delay. Once a 20-year prescription period had expired that was the end of the matter for the complainant.
  7. All those features of survival of sexual trauma made it rational to be reluctant to report and to avoid reporting. And that was before even considering the effect of rape trauma syndrome, the now recognised patterns of emotional, physical, cognitive and behavioural disturbances that approximately one in three survivors of sexual assault developed. Even if a survivor was fully aware that she was abused, she naturally weighed up the possibility of reprisals from the perpetrator together with the possible lack of support from the police and statistically small eventuality that reporting would actually, eventually, result in a conviction in a criminal court.
  8. The evidence before the instant Court consistently showed that only one in three rape survivors sought assistance from formal social systems. Once a person took the decision to report, the police, the National Prosecuting Authority and the courts had a duty to investigate, prosecute and adjudicate the complaint with due regard to the hurdles overcome before reporting. All that meant that the decision not to disclose or report, for any length of time, could not determine the question of guilt or innocence in the case against the perpetrator.
  9. It was clear from the preceding analysis that there was no rational basis for the right to prosecute to lapse after 20 years in respect of other forms of sexual offences, and not for rape or compelled rape. Sexual offences could differ in form but the psychological harm they all produced could be similar.
  10. Section 18 also undermined the state’s effort to comply with its international obligations. South Africa was a party to a number of core international human rights treaties, including the Convention on the Elimination of Discrimination against Women and the Convention on the Rights of the Child. At the regional level, South Africa was, among others, party to the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. Those instruments imposed a duty on the state to prohibit all gender-based discrimination that had the effect or purpose of impairing the enjoyment by women of fundamental rights and freedoms and to take reasonable and appropriate measures to prevent the violation of those rights.
  11. Section 35(3) (l) of the Constitution recognised the principle of legality, namely that the accused could not be found guilty of a crime unless the type of conduct with which he or she was charged was recognised by the law as a crime at the time it was committed. Section 35(3) (l) of the Constitution confirmed a long-standing principle of the common law that provided that accused persons could not be convicted of offences where the conduct for which they were charged did not constitute an offence at the time it was committed.
  12. The rule against retrospectivity was no longer a tool of interpretation but rather constituted a fundamental right not to be subjected to retrospective provisions. An accused’s right to a fair trial would be no more prejudiced in a prosecution after 20 years for sexual offences, than his rights in a prosecution after 20 years for rape or compelled rape. That conclusion was predicated on a finding that rights to a fair trial, coupled with the state’s discretion on whether to prosecute based on the cogency and reliability of the evidence at its disposal, would serve to reduce any prejudice an accused person might have experienced as a result of a delay in prosecution beyond 20 years. On the facts presented by the applicants, the 1st Respondent could have been prosecuted for the common law offence of indecent assault as that was the crime at the time it was committed. The declaration of invalidity of section 18 did not therefore give rise to a new act which was not unlawful at the time it was committed.
  13. The constitutional invalidity of section 18 arose from that portion which barred, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in section 18(f), (h) and (i), after the lapse of a period of 20 years from the time when the offence was committed. In terms of section 172(1) of the Constitution, a declaration to that effect had to be made, including any order that was just and equitable. The offending portion of section 18 had to be struck down. Where possible, relief should not only be granted to the Applicants before a court, but to all those similarly situated to the Applicants. Ordinarily, an order of invalidity should have no effect on cases which had been finalised prior to the date of the order of invalidity. But in situations where retrospectivity was to be applied, the court had to consider the potential disruption and uncertainty that such an order could occasion.
  14. The Constitution expressly permitted courts to suspend an order of invalidity. When a court did so, the effect of the order was to permit the unconstitutional provision to continue to operate pending the end of the suspension period. The impugned provision continued to operate for a limited period.
  15. In deciding whether to suspend a declaration of invalidity a court had to consider the interests of a successful litigant in obtaining immediate constitutional relief and the potential disruption of the administration of justice that would be caused by the lacuna. Absence of disruption to administration of justice was, however, not decisive. Where a range of possibilities existed, and a court was able to offer appropriate interim relief to affected persons, it would ordinarily be appropriate to leave the Legislature to determine in the first instance how the unconstitutionality should be cured. The Court emphasised that it should be slow to make choices which were primarily choices suitable for the Legislature. That was particularly true for the case where there were numerous sexual offences which were subject to a 20-year prescription period.
  16. A proper balance could be struck by suspending a declaration of invalidity and ordering an interim reading-in. Suspension coupled with an interim reading-in was a remedy that did not intrude unduly into the domain of Parliament. It was a remedy that gave recognition to the need to respect the separation of powers and in particular the role of Parliament as the institution constitutionally entrusted with the task of enacting legislation. Such a remedy would prevent uncertainty by avoiding the piecemeal judicial amendment of legislation. It was a remedy that would allow Parliament to conduct the thorough process of consideration and constitutionally required consultation to properly cure the constitutional defect. That was the remedy which was just and equitable.
  17. There had been a delay on the part of the Minister to remedy the constitutional defect of the impugned provision. The delay was not unreasonable and it did not provide a sufficient basis to not suspend the constitutional invalidity of the order. In the explanatory affidavit deposed to by Mr Bassett on behalf of the 2nd Respondent, the latter pointed out that the South African Law Reform Commission had over the years been assisting his department with empirical research on how best to infuse the changing norms, values and interests of society with the pre-1994 statutory framework and its recommendations had led to the amendment of, among others, the CPA and the enactment of Criminal Law (Sexual Offences and Related Matters) Amendment Act(SORMA). He pointed out further that a further amendment in relation to aligning section 18(h) of the CPA with the new offences relating to the trafficking of children, and the inclusion of offences relating to torture, were under consideration. That explanation was reasonable and it was therefore a prudent thing for the Minister to wait for the Court’s confirmation before taking steps to rectify the impugned provision. Suspension was not an exceptional remedy. It was an obvious use of the Court’s remedial power under the Constitution to ensure that just and equitable constitutional relief was afforded to litigants while ensuring that there was no disruption of the regulatory aspects of the statutory provision that was invalidated.
  18. The 2nd Respondent had requested that a declaration of invalidity be suspended for 24 months to enable Parliament to enact remedial legislation. That period sought could not be said to be unreasonably long to enact a statute which would be constitutionally compliant having regard to the sensitivity of the impugned provisions and the need to obtain the views of various public interest groups on the extent of the amendment of section 18. In a participatory democracy, Parliament was best-suited to ensure that the ultimate statutory regime was decided upon in an open, inclusive and transparent manner, with all relevant parties who so desired being given an opportunity to shape the debate and the eventual outcome. Another consideration was that the suspension would not cause the Applicants or similarly situated survivors of sexual assault any prejudice as the suspension order was coupled with an interim reading-in. And should Parliament fail to enact remedial legislation within 24 months from the date of the order without seeking and obtaining an extension, the interim reading-in remedy would become final.
  19. Section 18 was substituted by section 27(1) of the Criminal Law Amendment Act. Although the Act came into operation on November 23, 1998,section 27 was deemed to have come into operation on April 27, 1994. The declaration of invalidity should therefore apply retrospectively to April 27, 1994, which was the date on which the interim Constitution came into operation. It was not contended that the declaration of invalidity with retrospective effect had a potential to cause unnecessary dislocation and uncertainty in the administration of justice. The order of the High Court was just and equitable.
  20. Those were proceedings which had been brought to the Court in terms of section 167(5) of the Constitution. The Applicants submitted that the 2nd Respondent had to pay the costs of confirmation proceedings. The 2nd Respondent disagreed and cited recent decisions in which costs were only awarded where the confirmation was opposed. The 2nd Respondent contended that each party should pay its own costs in the matter as he did not oppose confirmation. The applicants successfully challenged the constitutionality of section 18 of the CPA in the High Court where they were awarded costs. It was the norm to award costs in favour of a successful applicant for a confirmation and there was no reason why the principle should not apply in the matter. The fact that the 2nd Respondent had not opposed the confirmation proceedings did not in itself provide a sufficient basis for the Court to deviate from the principle. In the circumstances the 2nd Respondent should pay the costs of the confirmation proceedings.
  21. The award of costs was a matter within the discretion of the court. The discretion inherent in the decision to award costs was one that had to be exercised judicially having regard to all the relevant considerations. An appeal court would only interfere with the exercise of that discretion if it was demonstrated that it had not been exercised judicially or had been exercised based on a wrong appreciation of the facts or wrong principle of law.
  22. The general principle was that courts would enforce contracts between private parties which were entered into freely and voluntarily, and as long as their objective terms were consistent with public policy. It had to be accepted that the agreement on costs liability concluded between the Applicants and the 1st Respondent could not be said to be in any way against public policy. It could be enforceable at the instance of an aggrieved party. The difficulty for the 1st Respondent was that the Court was concerned with a contract, the application of which went beyond the confines of the primary parties. Its terms affected the rights of the litigants who were not parties to the agreement. The High Court was therefore correct in holding that it was not bound by the agreement entered into between the Applicants and the 1st Respondent in relation to costs where the agreement affected third parties, such as the 2nd Respondent. The Minister was a party to the proceedings and for that reason his consent had to be secured for the conclusion of the agreement that sought to settle the disputed issues between the parties. It was not in dispute that the 2nd Respondent had not agreed to the conclusion of the agreement by which it was sought to settle liability for costs between the Applicants and the 1st Respondent. Liability for costs was an issue in which the 2nd Respondent had a substantial interest.
  23. The 1st Respondent’s reliance on the Biowatch principle was misplaced. Mr Frankel was not the party that initiated the proceedings in which the constitutionality of section 18 was challenged. Mr Frankel was a respondent and he opposed prayer 2 of the notice of motion until his death on April 13, 2017. In doing so he was not seeking to promote the advancement of constitutional justice which was the conduct that would provide a basis for not awarding costs against him in the event that he lost in his constitutional challenge. He was pursuing his own self-interest and therefore the Biowatch principle did not protect him against a costs order.

Appeal partly allowed.

Orders

                 i.          The declaration of constitutional invalidity of section 18 of the Criminal Procedure Act 51 of 1977 made by the High Court of South Africa, Gauteng Local Division, Johannesburg was confirmed.

                ii.          The order was suspended for 24 months from the date of the order to afford Parliament an opportunity to enact remedial legislation.

              iii.          During the period of suspension section 18(f) of the Criminal Procedure Act was to be read as though the words “and all other sexual offences whether in terms of common law or statute” appeared after the words “the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.”

             iv.          Should Parliament fail to enact remedial legislation within the period of suspension, the interim reading-in remedy would become final.

               v.          The declaration of invalidity was retrospective to April 27, 1994.

             vi.          The first Respondent’s appeal against the costs order of the High Court was dismissed with no order as to costs.

            vii.          The second Respondent was to pay the costs of the confirmation proceedings.

Relevance to the Kenyan Situation

The Sexual Offences Act, No. 3 of 2006 provides for various sexual offences and their punishments. The Limitation of Actions Act, Cap 22 Laws of Kenya does not provide prescription periods for instituting prosecution of criminal offences.

Section 219 of the Criminal Procedure Code provides for Limitation of time for summary trials in certain cases as follows: Except where a longer time is specially allowed by law, no offence the maximum punishment for which does not exceed imprisonment for six months, or a fine of one thousand shillings, or both, shall be triable by a subordinate court, unless the charge or complaint relating to it is laid within twelve months from the time when the matter of the charge or complaint arose.

Kenya does not draw a distinction on sexual offences in relation to time of instituting their prosecution. However, other factors such as lack of DNA and other evidence due to instituting the offences after long periods of time may hamper swift justice to the victims. The South African case is important as it progresses jurisprudence in the area of law of sexual offences in a bid to continue protecting victims of sexual offences legally and give them hope.

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