Proposed amendments to the law will make it possible to prosecute sex offenders decades after the offences were committed – unlike the existing Criminal Procedures Act which allows for a 20 year window in which to bring prosecutions.
DearSA requested expert legal opinion on the proposed amendments from attorneys Hurter Spies.” This is a crucial amendment to our criminal legal framework, and we wanted to ensure that the voices of victims are properly heard at the highest levels of government,” says DearSA programme director Rob Hutchinson. “Parliament should be commended for its work in bringing our criminal laws into conformity with the Constitution and our legal opinion reflects that position.”
In keeping with its mandate to ensure broad public participation in all matters governance-related, DearSA requested an expert legal opinion to ensure that ordinary South Africans have a say in the shaping of these legal amendments. The Criminal Procedure Amendment Bill, 2018, was introduced in Parliament on 30 May 2018 as a result of the Constitutional Court judgment delivered in the now infamous “Frankel Eight” case.
However, the Department of Justice and Constitutional Development briefed the Portfolio Committee of Justice and Correctional Services on the proposed amendment without asking interested parties to comment. DearSA believes these amendments are of broad public interest and are therefore deserving of public comment.
The proposed amendments will also broaden the net of sex victims to include not just children, but adults. This follows a Constitutional Court ruling in 2018 that required Parliament to amend a number of laws to conform with the Constitution.
The genesis of these amendments goes back to the infamous case of Sidney Frankel, the billionaire former stockbroker, who died in 2017 before having a chance to face eight accusers who claimed they had been sexually assaulted and raped as children.
The so-called Frankel Eight came forward in 2013 with startling allegations against the former stockbroker. They alleged they had been sexually assaulted by Frankel between 1970 and 1989 when they were aged between 6 and 15 years old and had suffered physical, emotional, and psychological trauma thereafter.
Frankel passed away in April 2017 shortly before getting his day in court, but he would in any event be able to claim that the 20 year ”prescription” since the time of the sexual abuse had lapsed. In other words, the victims had waited too long to bring their claims of criminal sexual assault.
The Director of Public Prosecutions for Gauteng refused to bring a prosecution against Frankel on the grounds that the Criminal Procedures Act debars prosecution for sex crimes more than 20 years after the fact.
Not satisfied with this outcome, the Frankel Eight in 2017 brought a case before the Johannesburg High Court to have the 20 year prescription (time period allowed for the launching of legal proceedings) outlined in the Criminal Procedure Act (CPA) of 1977 declared unconstitutional.
The legal case was a success, the court ruling that section 18 of the Criminal Procedure Act was unconstitutional in barring victims of sexual abuse from launching legal proceedings after a period of 20 years had elapsed from the time the offence was committed.
The finding was appealed by the estate of Sidney Frankel, and eventually found its way to the Constitutional Court for confirmation of the Joburg High Court’s ruling. The Joburg High Court also ruled that not only was the 20 year prescription unconstitutional, but also the law fact that relevant sections of the CPA applied only to children.
The Constitutional Court agreed with the Joburg High Court and gave Parliament 24 months to amend the section 18 of the CPA so that it conforms with the Constitution.
In January 2019, Parliament decided to draft amendments to section 18 of the Criminal Procedure Act, 1977, and section 12 of the Prescription Act, 1969.
The amendment to the CPA extends the list of sexual offences for which prescription does not apply. In other words, there will be no longer be a 20 year expiration date for bringing legal action, and the range of sex offences will be broadened considerably.
Amendments to the Prescription Act will make it possible for victims of sexual offences o institute legal proceedings even where they have deemed to have suffered ‘‘mental or intellectual disability, disorder or incapacity’’, rather than “insanity” as in the current wording of the Act.
The range of sexual offences for which prosecutions may be instituted include rape, compelled rape (where someone is compelled to witness a sex act) or using a child or person who is mentally disabled for pornographic purposes.
Perpetrators of sexual offences may now be subject to both criminal and civil proceedings on a wider range of offences, irrespective of when the crimes took place.
The purpose of these amendments is to encourage survivors of sexual offences to reports these matters so that perpetrators are not left to roam free.
“We are also cognisant of the fact that our criminal justice system still has to undergo more substantive reforms in order to systemically address any secondary victimization experienced by survivors in the criminal justice system,” says Daniel Eloff, attorney with Hurter Spies. “We believe the proposed amendments will undoubtedly pass constitutional muster as it is a direct response to a declaration of unconstitutionality by the Constitutional Court.”