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[2017] ZAGPJHC 140
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L and Others v Frankel and Others (29573/2016) [2017] ZAGPJHC 140; 2017 (2) SACR 257 (GJ) (15 June 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 29573/2016
Reportable
Of
interest to other judges
Revised.
15
June 2017
In
the matter between:
N
L
First Applicant
P
D
Second Applicant
G
R
Third Applicant
K
R
Fourth Applicant
D
M
Fifth Applicant
L
W
Sixth Applicant
S
R
Seventh Applicant
M
S
Eighth
Applicant
and
SYDNEY
LEWIS
FRANKEL
First
Respondent
MINISTER
OF JUSTICE AND CORRECTIONAL
SERVICES
Second Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS,
GAUTENG
Third Respondent
THE
T
RUS
T
EES
F
OR
T
HE
TIME BEING OF T
HE
WOMEN'S
LEGA
L
CEN
T
RE
T
RUST
First
Amicus
Curiae
THE
T
EDDY
BEAR CLIN
I
C
Second
Amicus
Curiae
LAWYERS
FOR HUMAN RIGHTS
Third
Amicus
Curiae
JUDG
M
ENT
HARTFORD,
AJ:
A.
I
NTRODUCTION
[1]
This is an application in terms of which the first to eighth
applicants (hereinafter referred to as
"the
applicants
"
)
applied for an order on 26 Augus
t
2016
i
n
the following terms
:
"
1
.
Declaring that section 18 of the
Cr
i
minal
Procedure Act 51 of 1997 is
i
nconsistent
with the Constitution
,
1996
and invalid to the extent that it bars in all circumstances the right
to institute a prosecution for all offences as contemplated
by the
Criminal Law (Se
x
ual
Offences and Related Matters) Amendment Act
,
2007
,
othe
r
than rape or compelled rape
,
after the lapse of a period of 20 years
from the time
w
hen
the offence was committed
;
2.
Directing the Third Respondent to consider
whether
to institute
a
prosecution in respect of charges of
indecent
assault
and/or sexual assault against the First Respondent
;
3.
Costs against any respondent
who
elects
to oppose this application
.
4.
Further
and/or alternative relief.
"
[1]
[2]
The
first
respondent (hereinafter referred to as
"Frankel')
filed a
Notice
of
Intention
to Oppose the application on 5 September
2016 and the second respondent (hereinafter referred
to
as
"the
Minister' )
filed
a Notice of Intention to Oppose on 8 September 2016
.
The
Minister
withdrew his Notice of
Intention
to
Oppose and filed a
Notice
of
Intention
to
Abide the Decision of the Court on 7 November 2016. The third
respondent similarly chose to abide
the
court's decision
.
Frankel filed his Answering Affidavit on
26 September 2016 and the applicants filed their Replying Affidavit
on 28 November 2016
.
In
their Replying Affidavit, the applicants
stated that
"to
the
extent that the primary relief is in any way unclear in this regard,
we
suggest
that an alternative order to the primary relief sought in the Notice
of Motion may be granted. In this
regard
we suggest that
for the sake of
absolute certainty the following order (alternative order) be made
":
''Declaring
section 18
of the
Criminal Procedure Act No 51 of 1977
to be
inconsistent with the Constitution
,
1996
and invalid to the extent that it bars in all circumstances the right
to institute a prosecution for se
x
ual
offences suffered by children
,
other
than rape or compelled rape
,
after
the lapse of a period of 20 years from the time when the offence was
committed
.
"
[2]
[3]
The applicants also invited the respondents
,
in
the event that they sought to object to the alternative order, to
file a further affidavit in which they set out their reasons
for
doing so, and in such further affidav
i
t
explain what exactly their concerns were with the alternative
order.
[3]
[4]
On 25 January 2017, in his rejoinder affidavit, Franke
l
adv
i
sed
the court that he did not persist in opposing the relief sought
i
n
the amended prayer 1 to the Notice of Motion but maintained his
opposition to the re
l
ief
sought in prayer 2 on the basis of the principle of legality
.
[4]
[5]
Thus
,
as at
25 January 2017
,
the
applicants had narrowed down the
i
r
relief claimed from a declaration of invalidity relating to all
s
e
xual
offences against all persons
("the
broader relief')
,
to
one confined to a declaration of invalidity in relation to children
only
(
"
the
alternative narrow relief')
.
[6]
On 18 May 2017 this Court
,
wrote
to all the parties requesting that the parties make written
submissions dealing with,
inter alia
,
what remedy the parties suggested
the court should devise in order to make
section 18
of the
Criminal
Procedure Act constitutionally
sound, if the court should deem it
necessary to do so.
[7]
The applicants replied in an email dated 19 May 2017
,
and suggested
,
in addition to its amended prayer 1, the
following additional order be made
:
"A
declaration that
section 18(f)
of the
Criminal Procedure Act 51 of
1977
is to be read as though the following words
:
'
indecent assault against children'
appear after the words Amendment Act
,
2007.
"
No
suspension was sought for any declaration of invalidity by the
applicants
.
[8]
The
amici
also
made certain suggestions
.
What
they were all unanimous on was that any declaration of constitutional
validity should not be confined to sexual offences against
children
only
.
The
Min
i
ster
concurred with the applicants that any relief should be confined to
children
.
[9]
In a nutshell
,
all
the parties submitted that section 18 of the CPA was inconsistent
with the Constitution
,
including
Frankel
,
but
sought various permutations of relief flowing therefrom
.
[1
0]
Frankel died shortly before the hearing of this matter and the court
received an email dated 24 April 2017 from the applicants
that they
would no
longer
be
proceeding with the relief in prayer 2 of their Notice of Motion but
only in terms of prayers 1, 3 and 4 thereof. At the hearing
a Notice
of Substitution was handed in by Frankel's counsel substituting
Frankel with the Estate Late Frankel. For convenience
I shall
continue to refer to the first
respondent
as
"
Frankel'.
[11]
It is incumbent upon this Court to first determine the question of
whether section 18 of the Criminal Procedure Act 51 of 1977
("
the CPA")
is indeed
inconsistent with the Constitution and I will thereafter deal with
the varied forms of relief which the parties submit
should be
granted
.
[12]
I am mindful of the fact that the underlying
/is
and defining of the facts between
the parties are those as between the applicants and the respondents,
and that the
amici
were
joined by the order of Lamont J in February 2017
.
B.
THE FACTS
[13]
I turn now to deal with the case made out by the applicants
in
their
affidavits
.
The
applicants have brought this application in their own interest as
well as in the public interest.
[5]
The applicants, who at the time of the alleged offences were between
the ages of 6 and 15 years, and were both male and
female,
have accused F
r
ankel
of hav
i
ng
hab
i
tually
"
indecently
and/or sexually assaulted
'
them
between 1970 and 1989
.
[6]
The
alleged abuse occurred at different
l
ocations
i
n
and around Johannesburg and
i
n
var
i
ous
ways
.
[14]
In terms of section 18 of
t
he
CPA
,
i
n
all these cases, the alleged indecent assault offences prescribed
between 1999 and 2011
.
[7]
Only
between June 2012 and June 2015 did the applicants acquire
"
full
appreciation of the criminal acts committed by the first
respondent
'.
[8]
The
applicants opened a criminal case and instituted a civil claim
against Frankel.
[9]
[15]
The third respondent declined to prosecute the cases against
Frankel.
[10]
[16]
At the time the alleged offences were committed
,
which was long befo
r
e
the Criminal Law (Sexual Offences and Relation Matters) Amendment Act
32 of 2007 came into effect (hereinafte
r
referred to as
"
SORMA
"
)
,
the crimes allegedly committed were
the common law crimes of indecent assault.
C.
THE APPLICANTS
'
AND THE FIRST SECOND AND THE
THIRD AMICl'S LEGAL CHALLENGES TO SECTION 18 OF THE CPA AS READ WITH
THE MINISTER'S LEGAL SUBMISSIONS
[17]
The applicants submit that section 18 of the CPA is unconstitutional
and
i
nvalid
.
It reads as follows
:
"
18
.
Prescription of right to institute
prosecution
.
The
right to institute
a
prosecution
for any offence
,
other
than the offences of
-
(a)
murder;
(b)
treason committed when the Republic
is in
a
state
of war;
(c)
robbery
,
if aggravating circumstances were
present;
(d)
kidnapping
;
(e)
child stealing
;
(f)
rape or compelled rape as
contemplated in sections 3 or
4
of the Criminal Law (Se
x
ual
Offences and Related Matters) Amendment Act 2007, respectively;
(g)
the crime of genocide
,
crimes against humanity and war
crimes
,
as
contemplated in section 4 of the Implementation of The Rome Statute
of the International Criminal Court Act
,
2002
;
(h)
offences as provided for in
section[s]
4
,
5 and
7
and involvement in these offences as
provided for in section 10 of the Prevention and Combating of
Trafficking in Persons Act
,
2013
;
or
(i)
using
a
child or person who is mentally
disabled for pornographic purposes as contemplated in sections 20(1)
and 26(1) of the Criminal Law
(Sexual Offences and Related Matters)
Amendment Act
,
2007
,
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.
"
[18]
The applicants submit that
,
in
that the effect of section 18 is that it affords no discretion as to
whether a prosecution ought to be instituted or not but
constitutes
an absolute bar to the cr
i
minal
prosecution of all sexual offences other than rape or compelled rape
after 20 years, section 18 of the CPA in its current
form,
inter
alia
:
18.1.
Is irrational because
it
makes
arbitrary distinctions
in
respect of the gravest of
crimes
;
18.2.
Violates the applicants'
rights
to
18.2.1.
human
dignity;
18.2.2.
equality
and
non-discrimination;
18.2.3.
to
be
protected from abuse as children
;
18.2.4.
to
be free from all forms of violence from both public and private
sources
;
18.2.5.
access
to courts
;
18.2.6.
a
fair trial
;
and
that
18.3.
The limitation that section 18 of the
CPA imposes
is not
justifiable
under section 36 of the Constitution.
[19]
The three
amici
have
also mounted several legal challenges to the constitutional validity
of section 18 of the CPA. To a large extent the legal
challenges
overlap
,
whilst
some of the
amici
make
broade
r l
egal
challenges than the applicants
.
The
Minister
,
who
abides the decision of the court
,
himself points to legal diff
i
culties
similar to those raised by the applicants and the
amici
.
Frankel no longer opposes the
alternative narrow relief
.
[20]
I will commence by outlining the history of the amendments to sect
i
on
18 of the CPA, and then deal w
i
th
the powers of the NPA. Iwill then examine whether it is competent for
this Court to grant the broader relief initially sought
by the
applicants
,
or
only the alternative narrow relief
.
Thereafter
,
for the avoidance of repetition
,
I will deal with the pertinent legal
challenges under thei
r
various
headings in one sect
i
on,
as mounted by all the parties
.
D
.
THE HISTORY OF THE AMENDMENTS TO
SECT
I
ON
18 OF THE CPA FROM 1977 TO 2007
[21]
In order to have an understanding as to how the CPA has been
developed and amended over the past 30 years Ideal b
r
iefly
therew
i
th.
[22]
The 1977 version of section 18 of the CPA provided that:
"
(1)
The right to institute a prosecution for any offen
c
e
,
other than
a
n
offence in respect of whi
c
h
the sentence of death ma
y
b
e
imposed, shall
,
unless some other period is
e
x
pressly
p
rovi
ded
by la
w,
lapse
after the expiration of
a
period of twenty years from
time
to
time
when
the offence was committed."
[23]
Thus in
the
1970's
,
if
the offence was serious enough to
warrant the imposition of the sanction of the death penalty, the
prescription period of 20 years
did not apply to the offence
.
In 1997, and as a
result
of the death penalty being declared
unconstitutional, section 18 of the CPA was amended to
include
a
list
of
offences that were considered to be particularly serious. These
included child stealing and
rape
.
These
offences
were subject
to the
minimum
sentences regime of the
Criminal Law Amendment Act
105
of 1997
.
[24]
Thus,
by
1997
,
the
amendment had removed the
link
between
the stipulated offences with the sanction to be
imposed,
namely
the
death
penalty
,
and
instead
merely
set up six separate offences to which prescription did not apply
.
The
Minister advises that
,
by
1997, the nature
of
the
offence as well as
the
requirements
of the Constitution determined whether a sexual offence should be
subject
to
the
20 year limitation or not.
[11]
[25]
In 2007
,
pursuant
to
SORMA,
the definition of
rape
was
extended
to
include
all forms of sexual penetration
.
The
crimes of
,
inter
alia,
compelled
rape
,
human
trafficking and using a
child
or
person who
is mentally
disabled
for pornographic purposes were also
introduced
as exclusions to the prescription period
of 20 years.
[26]
The current section
18
of
the CPA (also
referred
to
as the
"impugned
provision")
now reads, in relation to sexual
crimes
,
that the prescription period does
not
apply to
"
rape
or compelled rape as contemplated in
section 3
or
4
of the
Criminal Law
(Sexual
Offences and Related Matters)
Amendment Act, 2007
respectively,"
nor
to,
inter alia,
the
sexual offences defined
in
paragraphs
(g), (h) and (i) of the section.
[27]
Thus nine categories of
offences
currently fall to be excluded
from
the
prescription period of 20 years
(hereinafter
referred
to as
"
the
excluded offences
").
What
did not appear
in
the
final amendment
to
section
18
of the
CPA under the excluded offences were other crimes of a sexual nature
.
E.
THE POWERS OF
THE
NATIONAL PROSECUTING AUTHORITY
[28]
The NPA has a discretionary power whether to institute or to decline
to
institute
criminal
proceedings on behalf of the State.
This
power
is
conferred
on it by section 179(2) of the Constitution as read with section
20
of
the
National
Prosecuting Authority Act
32
of
1988
,
the
NPA
Code
of
Conduct and the NPA Prosecution Policy Directives.
[12]
[29)
According to the NPA Policy Directives,
[13]
for
a prosecution to
ensue,
it
must
be objectively
clear
that
there is sufficient and admissible
evidence
to
provide
a
reasonable
prospect
of
a
successful prosecution with a
reasonable
chance
of conviction
.
If
so
,
a
charge will normally be
prosecuted
unless public interest
dictates
otherwise
.
[14]
[30]
The
NPA's role
is
therefore
to assess all
the
circumstances
of
the
matter
and to apply
the
principles
of constitutional criminal
law
,
procedure
and evidence
in
a
manner
that
balances the constitut
i
onally
protected
interests
of
the victim with that of an accused person
.
The
NPA must assess
the
sufficiency
of evidence prior
to
instituting
a
prosecution and
also
whether
there
are
considerations which would dictate against prosecution
in
the
public
interest,
such as
the
personal
circumstances of
the
accused
and relevant sentencing principles.
[15]
[31]
Section
18
of
the CPA thus bars
the
NPA
from exercising its discretionary powers as above to
i
nstitute
and conduct criminal proceedings
in
all
cases relating to offences not excluded therein
.
F.
WHETHER IT
IS
COMPETENT FOR
THIS
COURT TO GRANT
THE
BROADER RELIEF SOUGHT BY
THE
AMICI
TO
INCLUDE ALL PERSONS OR ONLY
THE
ALTERNATIVE
NARROW
RELIEF SOUGHT BY THE APPLICANTS
AND
THE
MINISTER
FOR OFFENCES AGAINST CHILDREN ONLY
[32]
All the applicants were children at
the
time the
offences were allegedly
committed
,
and
it
appears
to be for
this reason
that
the applicants sought,
in
their alternative narrow relief
,
that any order should be
li
m
i
ted
to dealing with ch
i
ldren
only
.
The
Minister too sought that any relief be confined to children
.
[33]
The applicants relied
,
for
their submissions that any relief ought to be confined to child
r
en
only
,
on
the case of
Masiya
v Director of Publi
c
Prosecutions
,
Pretoria
and Another (Centre for Applied Legal Studies and Another, Amici
Curiae)
2007
(5) SA 30
(CC) where Nkab
i
nde
J stated
:
[16]
"29
.
The facts of the present case
deal with penetration of the anus of
a
young girl
.
The issue before us then is
whether the current definition of rape needs to be developed to
include anal penetration within its
scope
.
The facts do not require us to
consider whether or not the definition should be e
x
tended
to include non-consensu
a
l
penetration of the male anus by
a
penis
..
.
This
Court has stressed that it is not desirable that
a
case
should be dealt with on the
basis of
w
hat
the facts might b
e
rather
than what th
e
y
are
.
"
[my emphasis]
[34]
The applicants
'
counsel
,
whilst making it clear that the
applicants did not oppose the broade
r
relief sought by the
amici
,
subm
i
tted
that
,
as
the facts on the affidavits related to offences committed when the
applicants wer
e
child
r
en,
the appl
i
cants
could not seek the broader relief to include adults
,
as they had in fact done or
i
ginally
in prayer 1 of thei
r
Notice
o
f
Mot
i
o
n
.
[35]
The pertinent question is whether, merely because the applicants were
children when the offences were committed, any relief
granted must be
confined to dealing with children only
.
There are two
reasons
why I find that it need not.
[36]
Firstly
,
section
18(f) of the CPA which
is
challenged
in
this
application
,
itself
makes no distinction,
in
excluding from prescription the crimes
of rape and compelled rape
,
between
children as opposed to adults
.
It
simply reads
:
"1
8(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
."
In
that
section 18(f)
is a blanket exclusion from prescription for all
persons,
i
t
would not make sense for this Court
,
in
determ
i
ning
the constitutional
invalidity
of
section 18(f)
,
to
confine such invalidity to children only when
section 18(f)
of
the
CPA itself provides for no such
limitation
.
[37]
Secondly
,
the
facts
herein relate
to
the
common
law cr
im
e
of indecent assault against the applicants
.
The
common
law definition of
indecent
assault
itself, at the time of the commission of the alleged offences
,
was
not confined to one against children only.
Indecent
assault
was defined as the unlawful and
intentional
assault
of another with the object of committing an indecent act. This broad
definition of indecent assault describes a breadth
of conduct
ranging
from touching a person inappropriately to a sexual act that does not
include
penetration
.
[17]
[38]
Thus
indecent
assault
could be committed against adults or children
.
To contend, as the applicants and the
Minister do, that merely because the applicants were children when
the alleged indecent assault
occurred must therefore limit any
declaration of constitutional invalidity on these facts to children
only
,
would
result
in
this Court creating an artificial restriction that was never
contemplated by the legislature
in
relation
to these crimes. To confine any
invalidity to children
in
these
circumstances merely because they were children at the time would be
the equivalent to confining the
invalidity
to children with green eyes
,
if
the
facts
had
demonstrated all the applicants had green eyes
.
Accordingly, to my mind, nothing turns
on the
fact
that
the applicants happened to be children when
the
alleged crimes of
indecent
assault were
committed
against them.
[39]
Langa
CJ, in a minority
judgment,
noted
in
Masiya
'
s
case
supra
that:
"Ev
en
if this may be
a
slight
departure from the facts
of
the
case
,
it
is
not
unusual for this Court to give orders
,
either
when
developing
the
common
law
or
determining
the
validity
of
statutes
,
that
go
beyond
the
exact facts but
are
necessitated
by
the
underlying
constitutional
principles
involved
."
[18]
[40]
Whether the applicants were children or not at the time the alleged
offences of indecent assault were committed makes no difference
to
whether the crime of
indecent
assault
occurred or not, as that crime
i
tself
did not
require
,
as a necessary element for
the
offence, that
it
be committed against children
.
[41]
In that neither
section 18(f)
itself nor the common law definition of
the crime of indecent assault distinguishes between adults and
children
,
and
in
that the
factual matrix set out by the applicants satisfies
the
requirements for the common law crime of
indecent assault, for these reasons I am of the view that there is
nothing confining this
Court to restricting a declaration of
invalidity to children only
.
[42]
It
is
significant
that the applicants themselves claimed
invalidity
in
the broader sense
ab
initio
in
their Notice of Motion and only chose to
reduce it
to
the alternative narrow relief in their Replying Affidavit
,
seemingly due to criticisms levelled by
Frankel in his Answering Affidavit. I now turn to deal with the
challenges to
section
18
of the CPA.
G.
WHETHER SECTION
18
OF THE CPA
IS
I RRATIONAL AND ARBITRARY
[43]
All the parties have submitted to
this
Court
that section
18
of the CPA,
by
excluding only
the
sexual offences of rape and
compelled
rape from
the statutory prescription
period of 20 years,
is irrational
and
arbitrary.
[44]
Section
1
(c)
of the Const
i
tution
provides for the supremacy of
the
Constitution and the Rule of
Law.
[45]
The applicants submit that there
is
no
rational
basis
for distinguishing
rape
and
compelled rape from other forms of sexual offences
.
They
state
that, objectively determined,
the
question
that
arises is whether there
is
a
rational
basis on which to
include
rape
and compelled
rape
as excluded offences in section 18 of
the CPA but to exclude all other forms of sexual offences
.
[46]
It
was
pointed out by the applicants that some of the offences in
section
18 fall under Schedule 1 of the CPA but section
18
does
not
include
all
of them;
[19]
that
the offences
in
section
18
have
different minimum sentences applied to them;
[20]
and that it appeared that the section 18 excluded offences were
identified
based
on the perceived seriousness and their impact
on
the victims.
[21]
This
Court must thus determine whether
,
objectively
,
a
rational basis exists for excluding rape and compelled rape from the
prescription per
i
od
of 20 years but
including
all
other sexual offences within
that
time
limit.
As
stated
in
Prinsloo
v
Van
der Linde and Another
1997
(3)
SA
1012
(CC),
the State
"
should
not regulate in an arbitrary manner or manifest
'
naked
preferences
'
that
serve no legitimate government purpose, for that
would
be
inconsistent
with
the
rule of law and the fundamental premises of the constitutional
State
".
[22]
[47]
On
irrationality,
the
applicants
argued that the exclusion of sexual offences other than rape or
compelled rape disproportionately and unfairly
impacts
on
women. They submitted that, whilst it has always been accepted that
rape
is
,
as
appears from
Masiya's
case
above
,
"the
most
reprehensible form of sexual assault
',
that
nevertheless
the
dictum
of
Nkabinde J that
it
constitutes
a
"
humiliating
,
degrading
and brutal invasion of
the
dignity
and the person of the survivor. It is not simply an act of sexual
gratification
,
but
one of physical domination. It is an extreme and flagrant form of
manifestly male supremacy over females"
[23]
also
applies to other forms of sexual abuse
.
There
the
court
also
recognised that women and young girls are
"the
most
vulnerable
group
"
.
[24]
[48]
In
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4)
SA
938
(CC)
Ackermann
et Goldstone JJ noted that few things can be more
important
to
women
than freedom from the threat of sexual violence and that sexual
violence is the single greatest threat to the self-determination
of
South African women.
[25]
The
applicants submit that these
dicta
find
no
less application
in
relation to
cases constituting sexual
offences other
than
rape
and
compelled rape
,
and I
concur with their submission that it is
accordingly irrational to make the distinct
i
on
that section 18 of the CPA does in this regard.
[49]
I turn now to examine the rationality of imposing a prescription
period of 20 years on other sexual offences in light of the
cogent
evidence placed before this Court documenting the reasons why there
i
s often
de
l
ayed
disclosure
i
n
re
l
ation to
all sexual offences and not just
i
n
relation to those of rape and compelled rape.
[50]
In regard to delayed disclosure by victims of sexual offences
committed against them
,
the
applicants placed before this Court an expert report entitled
"
The Disclosure Process in Cases of Child Se
x
ual
Abuse"
prepared
by Karen Muller and Karen Hollely of the Institute for Child Witness
Research and
Training
.
[26]
This
report documents fully the delays encountered in disclosure
of
sexual abuse in children and the reasons therefor. The important
findings were
:
50.1.
that
immediate disclosure after one abusive incident is the exception
rather than the rule,
[27]
that
the majority of abuse disclosures are delayed
,
[28]
that
it is a gradual process where the abuse may have taken place months
or years before
[29]
and
that
disclosure
of child sexual abuse
i
s
more
typical
i
n
adulthood than
i
n
ch
i
ldhood
;
[30]
50.2.
that
child abuse
is
an
expression of power and author
it
y
;
[31]
50.3.
t
hat
there are four trauma
-
causing
factors
in
ch
il
d
abuse
,
namely
traumatic sexual
i
sation,
betrayal, powerlessness and stigmatisation
;
[32]
50.4.
that
further
facts p
l
aying
a role in the disclosure process
i
nclude
the nature of the abuse,
the
impact
of
the abuse on the child
,
parental
support and family and community support
;
[33]
50.5.
that
the child
i
s
pressur
i
sed
to remain silent by the perpetrator, secured by
inter
alia
,
threats
by
the pe
r
petrator,
a fear of the consequences of the disclosure
,
denial
by the perpetrator and feelings of
loyalty
towards
the perpetrator;
[34]
50.6.
that
there are further traumatic consequences
which
delay
disclosure
,
including
disassociat
i
on
;
[35]
50.7.
that
once disclosure occurs, a victim may
respond
according
to whether he or she receives a positive social reaction or a
negative
one.
Negative social
reactions
may
result
in
secondary
victimisation
that may prevent further disclosure and
in
effect
silence the victim;
[36]
50.8.
that
male victims have additional unique barriers, such as shame being
exacerbated,
in
wanting
to disclose,
[37]
and
that
there
are other uniquely male fears delaying disclose.
[38]
[51]
I concur with the applicants that in light of all
the
expert evidence adduced by Muller and
Hollely, in relation to the delayed reporting of all sexual offences
,
it is irrational
to
distinguish between rape and compelled rape and other sexual offences
for purposes of prescription
.
[52]
Although all the above reasons for delayed reporting and other
factors described by
Muller
and
Hollely relate
to
children,
and arise not only from rape or compelled
rape
but from other forms of sexual abuse
,
there appears
to
me
to be
no
reason
why
these same
traumatic
symptoms
and pressures would not apply equally to persons who are not children
at
the
time
of the commission of the offences.
[53]
Indeed
it
would be entirely irrational, in
my
view, to accept that
these
delayed disclosure processes would apply
to a child abused at the age of 17
yea
r
s
and 364 days old
,
but
not to an adult aged 18 years and one day old. There
i
s
thus no
r
eason
to confine a find
i
ng
on the i
r
rat
i
onality
of the prescription pe
ri
od
i
n section
18 of the CPA to children
.
[54]
Further
, i
n
re
l
ation to
rationality
,
the
first
amicus,
the
Women
'
s
Legal Centre
("the WLC
"
)
also submits that sect
i
on
18 is i
r
rat
i
onal
and arbit
r
ary
in treating certain sexual offences differently from others
.
Its arguments include
:
54.1.
That
excluding certain categories of offences from prescription based upon
the seriousness of the offence is not an appropriate
or rat
i
onal
basis as the trauma suffered by victims varies
i
ndependently
of the ser
i
ousness
of the offence based on harm
and
mo
r
a
l
gravity;
[39]
54.2.
that
patriarchal not
i
ons
assume that penetrative sexual offences are more serious than
non-penetrat
i
ve
sexual offences and that these notions no longer accord with the
Constitution
;
[40]
54.3.
that
there is
n
o
clear link between the type of sexual offence and the level and
extent of trauma experienced
;
[41]
54.4.
that
the perceptions of crime seriousness var
i
es
across
i
ndiv
i
duals
and cultures and that se
ri
ousness
i
s
not an appropriate criterion for determ
i
n
i
ng
p
r
escript
i
on
in sexual
offences
as seriousness should not be linked
to
outdated
notions of moral gravity but must accord with constitutional values
and norms;
[42]
54.5.
that
some
victims experience as much trauma
in
non-
penetrative as penetrative offences
.
The
WLC refers
[43]
to
the
expert
report of Higgins
[44]
who
states that the frequency and
severity
of child abuse is more useful than classifying a
type
of
abuse;
54.6.
that
the National
Institutes
of
Mental Health
Intramural
Research
Programme
[45]
shows that
different factors psychologically play a role in addition
to
the
physical
act, such as the duration
,
frequency
,
relationship
to
the
abuser
,
age
of onset and presence of physical and other forms of violence and
there is therefore no
clear
link
between
the type of sexual offence and extent of trauma experienced
;
54.7.
that,
as
further
expert
reports
referred to
by
the WLC such as
that
of
Ullman etc
[46]
demonstrate
,
trauma
impacts
the
mental
health
o
f
victims
in numerous ways and effects vary on a case- by-case basis.
[47]
54.8.
that
neither the physical injuries suffered by the victim
r
esult
i
ng
from the sexual attack nor the relationship between the victim
and
the offender were sign
i
ficant
predictors of post-traumatic stress d
i
sorder.
[48]
[55]
Thus the WLC submits that, as the t
r
auma
suffered is independent of the seriousness of the sexual offence
,
part
i
cularly
with regard to whether it involved penetration, or d
i
d
not, treating certain sexua
l
offences
differently to others is entirely irrational.
[56]
The second
amicus,
The
Teddy Bear Clinic
(
"
the
TBC
"
)
supports the above with additional
expert evidence
.
The
TBC submits that the distinction between sexual assault and rape in
respect of the nature of the harm is arbitrary, with reference
to the
expert evidence of Woollett who e
x
plains
that:
"
Victims
'
response
to sexual assault and rape is nuanced, and victims respond
differently. Long term sexual assault and grooming can lead
to
sustained post traumatic distress and degrees of dissociation
,
which
in
some
circumstances can be lesser, similar to
,
or
worse
,
than
the incidents of rape
."
[49]
[57]
The TBC thus subm
i
ts
that the protect
i
on
afforded to rape survivors compared to that afforded to those of
sexua
l
assault
is arb
i
trary
and discr
i
mina
t
es
against victims of sexual assault
,
resulting
in an unequal
application
of the law.
[50]
The TBC
subm
i
ts
that 20 years is not cognisant of
the
nature and process of sexual assault disclosure, that it is not a
single event
,
occu
r
s
over a lengthy period of t
i
me
and is impacted by numerous factors.
[51]
[58]
The third
amicus
(
"
the
LHR")
submits
that the distinction between sexual offences effected by sect
i
on
18 of the CPA does not accord with the theory of punishment as a
principle of criminal law and that
i
t
serves to irrationally immunise certain sexual offenders against the
interests of a society
.
The
LHR submits that it simply does not make sense within the current
South African context to punish certain sexual offences more
than 20
years after they were committed, thereby fulfilling the functions of
punishment, prevention, retribution and deterrence,
whilst other
sexual offences go
unpunished
due to an arbitrary distinction and an arbitrary time period imposed
by section 18 of the CPA.
[52]
[59]
The Minister
,
in
his submissions
,
emphasised
that the applicants were all children at the time of the
offences
,
[53]
that
the seriousness of non- penetrative sexual offences, especially
aga
i
nst
children
,
can
no longer be overlooked
,
and
that the perpetuation of th
i
s
policy d
i
stinguishing
between
penetrative
and non-penetrative sexual offences
is
untenable
and
unfair against children.
[54]
The Minister states that
it
i
s
not
"
unusual
for the court
,
when
determining the validity of statutes, to give orders that go beyond
the exact facts but are necessitated by the underlying
constitutional
principles
involved'
[55]
and
that
"the
general
principle of our law that constitutional
remedies
should give relief not only to the particular litigant but all those
similarly situated should apply equally to the development
of the
common law"
.
[56]
The
Minister
further
submits
that:
"The
definitions
of offences that do
not
prescribe
in
terms
of the impugned provision is
not
informed
by the government purpose that underpins the Sexual Offences
Act
.
”
[57]
[60]
The Minister advises in his affidavit that the
impugned
provision
in
its
current form
is
the
product of the amendments effected
in
accordance
with section 68(
1
)(b)
and
(2)
of
the Sexual Offences Act,
that
the
objects of the
impugned
provision
can only be understood within the context of SORMA and
inquiry
into
its
intention,
and
that
the
preamble
to SORMA
is
thus
critical,
[58]
as
it
makes
it
clear
that
the
legislature
intended
to
put
an emphas
i
s
on the progressive development of a criminal
justice
system
that is victim-centred
,
caring
and
responsive
.
[59]
The
Minister advises that SORMA
provides
for
the development of a National Policy Framework on
the
Management
of
Sexual Offences (the NPF)
to
guide
the
integrated
management
of sexual offences
matters.
[60]
The NPF
,
which
was gazetted on 6 September 2013
,
requires
a developmental approach
t
hat
a
ll
ows
for the progress
i
ve
realisation of the aims and objects of SORMA through the principles
contained therein.
[61]
[61]
On rationality
,
the
Minister states that the exercise of public powers has to be
rational
[62]
and objectively
viewed
,
a
link is required between the means adopted by the legislature and the
end sought to be ach
i
eved
.
[62]
The M
i
nister
points out that section 59 of SORMA seeks to import the above in
criminal proceedings by providing that:
"
In
criminal proceedings involving the alleged commission of
a
sexual
offence
,
the
court may not draw any inference only from the length of
any
delay between the alleged commission of such offence and the
reporting thereof.
"
[63]
The
Minister co
n
cludes
:
[64]
"
Given
the serious nature of all sexual offences and the vulnerability of
the victims of such offences
,
any
policy pos
i
tion
that seeks to distinguish between penetrative and non-penetrative
sexual offences in relation to sexual offences in relation
to
section
18
of the
Criminal Procedure Act cannot
pass
constitutional muster
.
[my emphasis]
In
the premises
,
the
Second Respondent is of the view that the exclusion of sexual
offences
,
other
than rape and compelled rape
,
from
the definitions of offences that do not prescribe in terms of
section
18
of the
Criminal Procedure Act
,
was
not informed by the Government purpose that underpins the Sexual
Offences Act
.
The
Se
x
ual
Offences Act is sui generis in nature
.
It engenders an integrated
approach to its enforcement and the continual monitoring and
evaluation
.
Accordingly
the Second Respondent
'
s
stance is also informed by the Department
'
s
duties in terms of the NPF
,
which
i
nclude
a
duty
to attend to legislative development
,
review and amendment.
The
grant of the relief sought by Applicants would present an
opportunity to attend to this
duty and ensure that the right to institute prosecutions in instances
of sexual violence, especially
against children is not restricted
."
[my emphas
i
s]
[63]
Having regard to all the expert evidence provided to this Court
pertaining to
,
inter
alia
,
the
delayed disclosure in relation to victims of sexual offences other
than rape or compelled rape
,
the
fact that the trauma suffered by victims may be worse in
non-penet
r
ative
sexual offences than in
penetrative
sexual offences
,
that
prescript
i
on
i
s
intended to penalise unreasonab
l
e
inaction and not inability to act
,
[65]
and
having regard to the sound legal arguments adduced by the applicants
,
the
amici
and
the Minister
outlined
above
,
I
am of the view that section 18
i
s
arbitrary and
i
r
r
ational
and
accordingly
is
inconsistent
with the Constitut
i
on
and invalid
,
i
n
relation to not only children
,
but
to all victims
,
including
adults
.
[64]
Indeed, the position was canvassed in relation to prescription in a
civil matter
in
Bothma
v Els
2010
(2) SA 622
(CC) where Sachs J stated
:
[66]
"[48]
A notable feature of recent
decades has been the manner in which adult women have through newly
discovered insight found themselves
suddenly empowered to come to
grips with and denounce sexual abuse they had suffered as children
.
In Van Zijl v Hoogenhout
,
the appellant
,
at the age of 48
,
sued her uncle for sexual abuse
during 8 years of her childhood. The issue to be determined was the
date from which civil prescription
would run. The appellant argued
that the prescription period ran not from the dates of the commission
of the crime
,
but
rather from the date on which she subjectively realised that
a
wrong had been done to her by her
uncle
.
This
contention was upheld in the Supreme Court of Appeal
."
And
further that:
[67]
"[49]
Deciding that
a
victim
of child or sexual abuse who acquired an appreciation of the criminal
act during adulthood is able to sue the abuser within
three years of
gaining that appreciation
,
Heher
JA observed
:
'
Abused
children have
a
right
of recourse
against
their
abusers
.
Until
the
1980
'
s
the right
was
seldom
invoked and in
South
Africa
,
probably
not
at
all
.
Major reasons
were
cultural or
societal
taboos
(many
abusers are
close family members)
and ignorance
.
Since
then
,
the
boundaries of understanding of the psyche of survivors
of
child abuse have been pushed back
by expert
studies
of
the
problem
and the true nature and extent of the effects of
such
abuse have
..
.
become better appreciated. As
survivors have become more
informed
about their condition and rights
and have received support from public interest groups, there has been
an upsurge in claims
,
many
by adults
who
initiated proceed
i
ngs
years after the actual incidents of abuse
.”
[65]
Significantly
the
SCA
found
in
Van
Zijl v Hoogenhout
,
[68]
that
prescription penalises unreasonable
inaction
not
inability
to
act. Heher JA listed several factors that contribute
to
victims
being seriously
inhibited
by
reason
of
his
or
her psychological condition from
instituting
action
in a civil claim and dism
i
ssed
a special plea of prescription as a
result.
[66]
There seems to be no
reason
why
these
findings
and observations would have any
less
cogency
when applied to the question of prescription in criminal cases to the
victims of sexual offences
.
For
all
the
above
reasons
I
conclude
that section 18(f) of the CPA
is
irrational and arbitrary in excluding
only
rape
and
compelled rape
from
the
prescription period of 20 years and not other sexual offences
.
[67]
To create a
random cut
off
time
of 20
years for prescription of sexual offences when vast swathes of
evidence demonstrate that they
inflict
deep continuous trauma on victims,
many
of whom suffer quietly
,
and either never disclose the offences
at all
,
enabling
the perpetrator
to
escape
all consequences, or disclose over varying
lengths
of time after the offences were
committed, dependent on each victim
'
s
unique circumstances and emotional fragility, is entirely irrational
and arbitrary
.
[68]
The law must encourage the prosecution of these
nefarious
offences, which are a cancer
in
South African society, and must support
victims
in
coming
forward
,
no
matter how
late in
the
day
.
The
law should not smother a victim's ability to bring sexual offenders
to book
,
as
it
presently
does
.
Victims
should
not
be
hushed by section 18 of the CPA.
[69]
Having
found
section 18 of the CPA
is
irrational
and invalid and
inconsistent
with
the Constitution,
it is
not
strictly necessary for me to deal with the further attacks on the
impugned provision. I shall nevertheless deal briefly with
some of
them.
H.
ADDITIONAL CHALLENGES TO SECTION 18
OF THE CPA
[70]
Section 7(2) of the Constitution states:
"The
State
must
respect
,
protect
,
promote and fulfil
the
rights in the Bill of Rights."
[71]
The applicants contend that the impugned
provision violates their rights
to
(a)
human dignity;
(b)
equal
i
ty
and
non-discrimination
;
(c)
to be protected from abuse as children;
(d)
be free from all forms of violence
from
both public and private sources;
(e)
access to courts
;
and
(f)
a
fair trial.
[69]
The
applicants contend that the limitation
that section 18 of the CPA imposes
is
not justifiable under section 36 of the
Constitution.
[72]
Section 36 of the Constitution entitled Limitation of Rights
restricts
the
manner
in
terms
of which the rights in the Bill of Rights may be limited
,
whilst section 10 states that everyone
has inherent dignity and the
right
to
have their dignity respected and protected.
[73]
The right to dignity has been described by the Constitutional Court
as one of the most important of all human
rights
and
the foundation of many of the other rights in
the
Bill
of Rights
.
[70]
[74]
In its
preamble
,
SORMA itself
refers
to the numerous
rights
it seeks
to
protect
,
including:
"the
right to equality
,
the
right to privacy, the right to dignity, the right to freedom and
security of the person
,
which
incorporates the right to be free from all forms of violence from
either public or private sources
,
and
the rights of children and other vulnerable persons to have their
best interests considered to be of paramount importance.
"
[75]
Flowing from the SORMA preamble, the Minister points out that it is
clear that the legislature intended to emphasise the progressive
deve
l
opment
of a criminal justice system that is victim-centred
,
responsive
and caring
[71]
and
stated
that
,
in
relation to the right to dignity:
"I
submit that the delay in reporting the sexual abuse that
is
alleged
to have occurred in this instance
has
created
an uneasy tension between the right to dignity of both the victims
and the alleged perpetrator
.
The
right
to dignity
is
recognised
as
universal,
in that it provides that 'everyone
has
an
inherent dignity and
a
right
to have their dignity respected and protected
'
as
recorded
in section 10 of the Constitution
.
The
preamble to the Sexual Offences Act reflects the policy position of
the
National Executive
.
This
preamble
seeks
,
inter
alia
,
to
promote the dignity of the victims of sexual offences by creating
a
uniform
and coordinated approach to the scourge of sexual violence
.
Simultaneously
,
prosecutors
are aware of the section 35 rights of accused persons, and the
inherent dignity that those persons are
entitled
to under the
Constitution
,
particularly
w
here
such
accused
person
has yet to be prosecuted.”
[72]
Further
O'Regan J in
Dawood
v
Minister
of Home Affairs
2000
(3) SA 936 (CC)
[73]
said
:
"Human
dignity
informs constitutional adjudication and interpretation at
a
range
of levels
...
Human
dignity
is
also
a
constitutional
value
that is
of
central significance
in
the
limitations analysis
.
Section
10
,
however
,
makes
it plain that dignity is not only
a
value
fundamental to our Constitution, it is
a
justiciable
right that must be respected and protected.
"
[74]
[76]
In my view
,
flowing
from the evidence presented to this Court,
the
applicants
'
rights to human dignity have been
breached by section 18 of
the
CPA
,
as their
dignity
is no
less
impaired by the
fact
that the sexual offences committed upon
them were non-penetrative as opposed to penetrative, and
consequently,
in
the
limitations
analysis
in accordance with
the
factors
as set out
in
section
36 of the Constitution, section
18
of
the CPA is on
this
basis
too
inconsistent
with
our Constitution.
[77]
The
WLC
submits
[75]
that the impugned
provision violates the rights
in
section
9(1) of the Constitution
which
provides
:
"(1)
Everyone is equal before the law and has
the right to equal protection and benefit of the
law."
[78]
I
n that
section 18 of the CPA discriminates
against persons who have endured sexual offences not falling into the
category of rape or compelled
rape by preventing
them
from pursuing a prosecution due to the
effluxion of time, and in that it
is
amply demonstrated above by the evidence
of experts
that
sexual
offences other
than
rape
or compelled rape are an equally egregious violation of a person's
rights, and cause as much, and often more, trauma than the
latter, I
concur that section
18 is in
breach
of section 9(1) of the Constitution as the victims of other sexual
offences do not get equal protection and benefit of the
law
.
Thus
the
distinction between the protection afforded to survivors of rape and
compelled rape by section 18
vis-a-vis
the
survivors
of non-penetrative sexual assault, infringes,
in
my view, the right to equality. in terms
of section 9 of the Constitution
.
[79]
On the bases of
these
breaches
of rights
too
,
and in addition to my finding of
irrationality
,
section
18 falls to be declared
unconstitutional
and
invalid
.
I.
THE BALANCI NG ACT BETWEEN
THE
RIGHTS OF THE VICTI MS OF SEXUAL
OFFENCES AND
THOSE
OF
THE PERPETRATORS
[80]
I
turn now to the balancing acts that a
court must engage
in
,
in relation
to
the tension between the rights of the victims and those of
perpetrators
,
as
set out
in
sections 35(3)(1) and (n) of the
Constitution,
which
give
every accused person a right to a fa
i
r
trial. The balancing of competing interests must still
take
place
.
[81]
The rights to a fair trial
,
coupled
with the State
'
s
discretion on whether
to
prosecute
or not, based on
the
cogency
and
reliability
of
the evidence at
its
disposal
,
seem to me to reduce any prejudice an
accused might experience as a result of a delay
in
prosecution
beyond
20 years
.
These rights
,
which are protected
,
apply equally in prosecutions for rape,
compelled rape or other sexual offences
.
It
would be
illogical
for
the accused's rights to be
infringed
by
a delay
in
prosecuting
sexual offences, but not be infringed by a delay in prosecuting rape
or compelled rape, as I have already found that
the former are no
less serious
than the
offences
of rape or compelled rape
.
[82]
Furthermore
,
as Sachs J states
in
Bothma v Els supra:
"Society
demands
a degree of repose for its members. People should be able to get on
with their lives
,
with
the
ability
to
redeem
the misconduct of their early years
.
To
prosecute someone for shoplifting more than a decade after
the
event
could be unfair in itself, even
if
an impeccable
eyewitness
suddenly came forward
,
or
evidence proved the theft beyond a
reasonable
doubt
.
Everything
will
depend
upon the
circumstances.
All the relevant factors
would
have
to be
weighed
on
a
case-by
-
case
basis
.
And
of central significance
will
always
be
the
nature of the offence
.
The
less grave the breach of the law, the less fair
it
will be to require the accused to bear the consequences of the delay
.
The
more serious the offence the greater the need for fairness to the
public and the complainant by ensuring that the matter goes
to trial
.
As
the popular saving tells us
'
Molato
ga o bole' (Setswana) or fical
'
aliboli
'
(isiZulu)
- there are some crimes that do not go away
.
"
[76]
[my
emphasis]
Sachs
J states further:
"
Adults
who take advantage of their positions of authority over children to
commit sexual depredations against them should not be
permitted to
reinforce their sense of entitlement by overlaying it with
a
sense
of impunity. On the contrary, the knowledge that one day the secret
will
out
acts as
a
major
deterrent against sexual abuse of other similarly
vulnerable
children.
[77]
[83]
Balancing the competing interests of victims of sexual abuse with the
rights of an accused as set out in the Constitution,
and mindful of
the aforesaid
dicta
,
I am of the view that an accused
'
s
rights to a fair trial will be no more prejudiced in a prosecution
after twenty years for sexual offences than his
rights
in
a prosecution after twenty years for
rape or compelled rape.
[84]
I turn now to the question of legality
.
Under the well-established principles of
legality in our law, in relation to the criminal
justice
system
,
the
pr
i
nciples
of
ius acceptum
,
ius praevium
,
i
us
certium
,
ius
strictrum
and
nulla
peona sine lege
apply
.
Thus the principle of legality prevents
arbitrary punishment and ensures that criminal liability accords with
clear and existing
rules of law
.
Sections 35(3)(1) and 35(3)(n) of the
Constitution enshrine these principles and the Constitutional Court
in
Masiya
'
s
case
supra
endorsed the rule against
retrospectivity.
[85]
On the facts presented by the applicants
,
Frankel could have been prosecuted for
the common law offence of indecent assault as that was the cr
i
me
in terms of the legislation in existence when he allegedly committed
the offence
.
[86]
In that the sexual offences alleged to have been perpetrated by
Frankel at the time a
l
ready
constituted criminal offences at common law (in this case indecent
assault), there would be no criminalisation of conduct
here
,
by
making the constitutional invalidity of section 18 of the CPA
retrospective, that was not a
l
ready
criminal a
t
the
time the alleged offences were committed
.
As
such
,
the
issue of the criminalisat
i
on
of conduct that was not previously cr
i
minal
does not arise in th
i
s
case
,
whilst
there must still be a balanc
i
ng
of the competing inte
r
ests
of the vict
i
ms
and the perpetrators as was set out in
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
.
[78]
Indeed
in
Bothma
v Els
,
supra
,
the
Canadian case of
R
v Carosella
1997
(1) SCR 80
was quoted in a footno
t
e
by Sachs J
,
which
included the statement of the minority by L'Heureux-Dube J that
"
Still
,
society
expects courts of law to ascerta
i
n
that person
'
s
guilt or innocence by way of a trial
,
and
,
subject
to the
uncertainties
inherent in any human enterprise
,
to
render
a
verdict
that is true and just. It is
a
crucial
role which should not be abdicated except in the most extreme
cases
".
[79]
[87]
I was also referred to the New Zealand decision of
Anderson
and Ors v Hawke
[80]
where
it was held that:
"'There
is strong public interest in the courts facilitating and not
frustrating prosecutions for historical sexual abuse
..
.
'
This is reconcilable with the fair
trial guarantees in section 25 of the New Zealand Bill of Rights Act
if, but only if, such prejudice
is appropriately mitigated
.
Such mitigating is largely
achieved by the general rules of criminal procedure (particularly as
to the onus and standard of proof)
and careful evaluation by the
trier of fact of the evidence which is adduced. But it also usually
requires the judge to take particular
measures to reduce
,
as far as possible
,
the risk of delay-related
prejudice
.
"
[88]
To my mind, having regard to the fact that the procedural and
substantive p
r
otections
of the Constitution apply to all accused persons
equally, there is no additional
constitutional prejudice to an accused being charged with a sexual
offence presently not excluded
from section 18 of the CPA as opposed
to the crime of rape and compelled
rape,
that
is
so
presently excluded, with the prescription period being lifted
retrospectively.
[89]
As Sachs J stated in
Bothma
v Els
2010
(1) SACR 184 (CC)
,
[81]
an
accused's fair trial rights are not solely infringed because of a
lengthy delay in prosecution. It is the actual effect of the
delay
upon the fairness of the trial
,
not
its length, that is relevant.
[90]
Further considerations that apply in deciding on the question of
retrospectivity here, are the rules of evidence which protect
an
accused and the fact that ultimately the NPA has the discretionary
power to institute or decline to institute criminal proceedings
as
set out
in
section
179(2)
of
the Constitution read with section 20 of the National Prosecuting
Authority Act 32 of 1988, the NPA Code of Conduct and NPA Prosecution
Policy Directives
.
Any
delay-related prejudice that might be suffered by Frankel or any
other accused person consequent upon the removal of the 20
year time
limit for prosecution retrospectively for sexual offences other than
rape and compelled rape would be adequately mitigated
by the fair
trial guarantees provided
in
terms
of section 35 of the Constitution.
[91]
Weighing up the potential prejudice to offenders should the order of
constitutional
invalidity
be
made retrospective in this case with the
fact
that
the
applicants
'
claims
would be rendered moot by a prospective order only
,
along with the claims of thousands of
other victims of sexual offences, the balancing act falls heavily in
favour of making it retrospective
.
J
.
THE STATE'S CONSTITUTIONAL
OBLIGATIONS
[92]
Section 7(2) of the Constitution imposes a duty on the State to
"respect, protect
,
promote and fulfil'
the
rights in the Bill of Rights
.
Sexual
violence
,
be
it rape or other forms of sexual offences
,
results potentially
in
a breach of the rights in sections 9,
10, 12(1)(c), 12(2)(b) and 28 of the Bill of Rights.
[93]
The duty of the State in terms of section 7(2) has been interpreted
by our courts to include
,
as
stated in
Christian
Education SA v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
(CC) the obligation to
"
take
appropriate steps to reduce violence in public and private life"
[82]
and
also
,
as
appears in
S
v Baloyi (Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000
(2) SA 425
(CC)
"
directly
to protect the right of everyone to be free from private or domestic
violence".
[83]
[94]
Not only does section 7(2) of the Constitution impose a duty on the
State to respect, protect
,
promote
and fulfil the rights
in
the
Bill of Rights, but the State has the responsibility to prosecute
criminal offences
.
This
arises directly from section 179(1) and section 179(2) of the
Constitution
.
Indeed,
in
S
v Basson
[2004] ZACC 13
;
2005
(1)
SA
171
(CC) the Constitutional Court stated that there is
a
const
i
tutional
obligation upon the State to prosecute those offences which threaten
or infringe the rights of citizens and it is of essential
importance
in our constitutional framework.
[84]
[95]
The State is precluded, by section 18(f) of the CPA
,
in all circumstances
,
from prosecuting an accused for any
sexual offence other than rape or compelled rape if it exceeds the 20
year prescription period.
No assessment of the particular facts of
the case
,
the
evidentiary value of all evidence available and any other factors are
able to be taken into account by the State
.
It has no discretion
.
The result is
,
as the applicants put it
,
a
"guillotine
effect'
in preventing prosecution of
other sexual offences after 20 years.
[96]
The high and extreme levels of sexual violence against women in South
Africa have been fully documented and recognised
,
in
Carmichele
v Minister of Safety and Security supra
,
as
"the
single greatest threat to the self determination of South
African women"
.
[85]
It
has been found to reflect the unequal power relat
i
ons
between men and women in our soc
i
ety
(in
Masiya
supra;
[86]
and
the threat of sexual violence has been descr
i
bed
as be
i
ng
as pern
i
cious
as sexual violence itself and as entrenching patr
i
archy
as it imperils the freedom and self
-
determination
of women
(
F
v Minister
o
f
Safety and Security and Another (Institut
e
for
Security Studies as Amicus Curia
e
))
2012
JOL 28228
(CC)
.
[87]
[97]
Furthermore, the preamble to SORMA recognises fully that the
commission of sexual offences in the Republic is of grave concern.
[98]
Consequently, the State's duty to protect all persons against sexual
violence,
in
terms
of section 7(2) of the Constitution, is a particularly onerous one
having
regard
to
the extreme
levels
of
sexual violence in South Africa that continues unabated to this day,
and section
18
of
the
CPA
stultifies the State's constitutional obligations as sketched above.
K.
SOUTH AFRICA'S INTERNATIONAL LAW
OBLIGATI ONS
I N
RELATION
TO WOMEN AND THE APPROACH TO PRESCRIPTION IN FOREIGN JURISDICTIONS
[99]
The Constitutional Court has determined that South Africa has a duty
in
international
law
duty to prohibit all gender based discrimination that has the effect
or purpose of
impairing
the
enjoyment by women of fundamental rights and freedoms and to take
reasonable and appropriate measures to prevent a violation
of those
rights
.
[88]
[100]
South Africa
is
a signatory to much international human
rights legislation
,
including
the Convention on the Elimination of All Forms of Discrimination
Against Women, the African Charter on the Rights of Women,
and the
SADC Protocol on Gender and Development. It is apparent from these
that
in
terms
of its international obligations, the State has a
constitutional
duty to ensure that sexual offences are prosecuted and this duty is
heightened in respect of sexual offences against
women and children
.
In this regard
,
a prescription limit of 20 years on
sexual offences other than rape or compelled rape appears to
frustrate the aims and objectives
of these international obligations
.
[101]
I also have taken note of the approach taken in many foreign
jurisdictions to prescription relating to sexual offences
.
What
is
clear is that numerous jurisdictions
have no prescription period whatsoever for all sexual offences. These
include
England,
Wales and Canada. There are several jurisdictions that have no
prescription for child sexual offences and other jurisdictions
that
provide for varying prescription periods according to severity.
Accordingly
,
South
Africa will not be alone if the 20 year prescription period for
sexual offences other than rape or compelled rape is set aside
.
L.
THE RELIEF SOUGHT
[102]
As described earlier
,
I
invited all the parties to suggest what relief they believed
it
would be appropriate for this Court to
grant in the case of a declaration of invalidity, and whether there
should be some form of
interim
"
reading
in
"
,
into section 18 of the CPA.
[103]
The Minister and the applicants seek to confine any declaration of
invalidity to sexual offences committed against children
only
.
At
the
inception
of
this
j
udgment
I concluded that such a limitation would not be warranted based on
the facts of this case.
[104]
The applicants and the LHR seek no suspension of the declaration of
invalidity whilst requesting a
"
reading
in
"
immediately
.
This, in effect, would close the door to
Parliament reconsidering and amending section 18 of the CPA with
regard to all the varied
sexual offences set out in SORMA,
particularly as,
prima facie
,
some of the offences in SORMA may
well warrant a prescr
i
ption
per
i
od
,
such as those pointed out to me by the
Minister
,
namely
the offences in Part 4 of Chapter 2 of SORMA. There are further
statutes that could also be affected by an immediate order
with no
suspension, such as the offences referred to in sections 50(A)(1) and
50(A)(2) of the Child Care Act 74 of 1983
,
sections 141 and 110(1) of the
Children
'
s
Act 38 of 2005, sections
25
36
3636">,
26
36
3636">,
27(1)-(3)
,
and
27
(A)(1)-(2) and
28
of the
Films and
Publications Act 65 of 1996
and Chapter 2 of the Prevention and
Combatting of Trafficking in Persons Act 2013
.
[105]
To thus grant an immediate o
r
der
in the terms framed by the applicants
,
with no suspension thereof, would remove
Parliament's right to assess which further sexual offences should
prescribe or not prescribe
,
and
unnecessar
i
ly
blur the line between the courts and the legislature
.
T
here seems no reason why the order
should not be suspended to enable the legislature to correct the
defects
i
dent
i
fied
here
i
n
,
to properly consider the effects of the
retrospectivity of the
i
nva
l
idity
order
,
and
to look at all the impli
c
ations
of
a
n
am
e
ndment
to
i
t. The
Minist
e
r
urg
e
d me
also to conside
r
the fact that other stakeholders may
also be affected by any invalidity declared
,
such as health services
,
social services and the NPA.
[106]
This Court is empowered by section 172(1)(b) of the Constitution
,
when deciding a constitutional matter
within its power, to make
"any
order that is just and equitable,
including
-
(i)
an order limiting the retrospective
effect of the declaration of invalidity
;
and
(ii)
an order suspending the declaration
of invalidity for any period and on any conditions
,
to allow the
competent
authority to
correct
the defect.
"
[107]
The question that this Court has to grapple with
,
having found that section 18 of the CPA
is
inconsistent
with
the Constitution and that Parliament should be given an opportunity
to remedy this defect
,
is
whether
,
in
the interim, this Court should grant further relief, in the form of a
"
reading
in
".
[108]
The difficult issue is thus whether victims of sexual offences
,
other than rape or compelled rape,
should cont
i
nue
to be precluded from pursuing prosecutions of their offenders for the
further period of suspension of the invalidity of section
18 of the
CPA, or whether they should be granted the
ability to further prosecutions
forthwith whilst Parliament considers the matte
r.
[109]
In this regard, the offending
legislation,
namely section
18
of the CPA, has already been
in
operation for some 10 years and
therefore, for some
10 long
years
already
,
victims
of sexual abuse other than rape or compelled rape
,
who may have come forward
to
report same beyond the 20 year
prescription period, have been barred from having any prosecution of
their cases proceed
.
[11
0]
The effect of my not granting an interim remedy now would thus delay
the ability of victims to prosecute their offenders by at
least a
further two years
,
if
one has
regard
to the amount of time
it
will take between the granting of this
order and a possible confirmation
thereof
by the Constitutional Court, coupled
with the period of suspension of 18 months which I intend to make.
This would thus mean that
12 years will have elapsed since section 18
of the CPA was promulgated before victims may proceed with their
prosecutions of sexual
offenders
.
[111]
This Court
is
mindful
of the delicate
,
sensitive
,
frightening and vulnerable situations
that victims find themselves
in
when
coming forward to pursue the prosecution of
the
crimes against
them
.
The legal process they
have
to
go through in seek
i
ng
justice is not for the fainthearted.
[112]
Where victims have already begun the
process
of
disclosure and
reporting
of
the abuse against them,
this
Court
is
concerned
that a further delay of 2 years may
undermine
the courage of
the
victims
who are presently
coming
forward
to
pursue
their complaints when
they
are
informed that
they
should wait a further 2 years,
in
limbo.
[113]
As disclosure
is
in
,
of
itself
,
a painful process, particularly as
occurred with
the
applicants
in
this
case, a
further
delay
would in my view cause unnecessary insecurity in the minds of
the
victims and
further
traumatise them
.
My concern is reinforced by the facts of
this case
.
The
bravery of the applicants coming forward
many years after
the
alleged
commission of the offences by Frankel
,
coupled with the additional glare of the
publicity
to
which
they
have
been subjected and the concomitant
intrusion
into
their personal suffering by having
to
publicly
disclose the
intimate
details
of the offences allegedly endured by them
in
affidavits, has not gone unnoticed by
this Court.
[114]
But for the strength of the applicants in bringing
this
application, section 18 of the CPA may
have continued
indefinitely,
unchanged
,
as
it is
clear that
the
legislature
has been extremely lax
i
n
promulgating an amendment to section
18,
despite the protestations of the
Minister that
the
National
Policy Framework on the management of sexual offences has been active
in investigating these issues
.
It
has
been,
in
the
case of
the legislature
,
too
little
too
late.
[115]
There is
accordingly
no reason why this Court should not grant an
immediate
reading
in
pending
the
further
investigations
of
the
legislature, in
the furtherance of an
order that
is
just
and equitable
in terms
of
section 172(1
)(b)
of
the
Constitution
.
M.
COSTS
[116]
In their Notice of Motion
,
the
appl
i
cants
sought a costs order against any respondent who elected to oppose
this application
.
At
the hearing of this matter
,
this
Court was advised that the applicants had undertaken, in a letter
dated 9 May 2017
,
as
furnished to this Court after the hearing
,
not to seek costs against
"
the
estate and hereby abandon same
".
[117]
Applicants' counsel referred me to two cases
,
being
Malachie
v Cape Dance Academy International (Pty) Ltd and Others
2010
(6) SA 1
(CC) and
Malachie v Cape
Dance Academy International (Pty) Ltd and Others
2011
(3) BCLR 276
(CC)
.
The
M
i
n
i
ster
submitted in its final written submissions furnished after the
hearing, that the costs should be shared jo
i
ntly
and severally with Frankel until 20 January 2017
,
being the date Frankel abandoned h
i
s
opposition to prayer 1 of the applicants
'
Notice of Motion
.
[1
1
8]
In
Malachie
v Cape Dance Academy International (Pty) Ltd and Others
201O
(
6
)
SA
1 Mogoeng CJ found that the Minister should be liable for costs as he
was enjoined to identify laws inconsistent with the Constitution
for
amendment
,
and
that as the emp
l
oye
r
s
i
n
this case had not been not
i
fied
that
an
order for costs would be sought against them, it would not be just
and equitable to mulct the employe
r
s
in costs and made a provisional order
.
[89]
[119]
In due course, and in
Malachie v Cape Dance Academy International
2011 (3) BCLR 2076
(CC) the court considered whether the
provisional order on costs should be made final. The court found:
"We
are satisfied that it will not be just and equitable for the
employers to be required to pay any of Ms Malachie
'
s
costs
.
While
it is true that they set the ball rolling by causing Ms Malachie's
arrest, we must also have regard to what happened after
that. The
employers agreed to her release and after securing an agreement that
Ms Malachie will not require them to pay their costs
,
took no further part in the proceedings
.
The position would have been different
had the employers insisted on Ms Malachie's further detention and
defended the constitutional
validity of the proceedings.
The
Minister has the duty to ensure that any provisional statute within
his functional area which offends the provisions of the
Constitution
is suitably amended or repealed without unnecessary delay. This
applies to the impugned provisions. As noted in the
main judgment
,
he
has not done so for the past 15 years into the constitutional
dispensation
.
There
is
,
therefore
,
merit
in the employers
'
contention
that the challenge to the constitutionality of the impugned
provisions
is
a
contest
not between Ms Malachie and the employers but between her
and
the Minister
.
It
is therefore just and equitable that the Minister should pay Ms
Malachie
'
s
costs in this Court
."
[90]
[120]
In the case before me
,
Frankel
opposed the
relief
sought
by the applicants in all the prayers
in
their Notice of Motion until the date
that the applicants amended their
relief,
i
n
the alternative
,
to narrow it down
.
Only on 20 January 2017
,
in his rejoinder
,
did Frankel withdrawn his opposition to
prayer 1 of the Notice of Motion
,
but
persisted in his opposition to the relief in prayer 2
.
He stated
:
"However,
I
maintain my opposition to the relief sought
in
prayer
2 on the basis of the principle of legality as set out in my
answering affidavit.
"
[91]
[121]
It
was only
when Frankel passed away on 13 April 2017
,
a few weeks before the hearing of this
matter
,
that
the relief sought
in
prayer
2 became moot as a result of his passing. Until such time Frankel was
very much involved
in
the
opposition of this application
in
relation to prayer 2
,
and in having opposed prayer
1
until January of this year.
[122]
The
lis
between the applicants and Frankel was in any event
terminated on 13 April 2017 arising from his death. No substitution
of the Estate
Late Frankel occurred until the hearing of this matter
when a Notice of Substitution was handed in by counsel.
[123]
In
relation
to the conduct of the Minister
,
he
was singularly dilatory and unhelpful in assisting this Court
,
despite
the precepts of the case of
Ex
Parte
Omar
[92]
in
that he on
l
y
filed his Answering Affidavit and Heads of Argument after 23 April
2017
,
be
i
ng
less than a month before the hearing of th
i
s
application
.
[124]
Frankel
'
s
counsel
,
for
the
Estate
Late Frankel
,
argued
vigorously against any costs order being made aga
i
nst
Frankel. It was submitted that the opposition to prayer 1 of the
Notice of Motion was lim
i
ted
to ascertaining the true ambit of the applicants
'
case
,
[93]
and
,
inter
alia,
on
whether a case had ever been made out in prayer 1
.
[125]
Despite the applicants having subsequently narrowed down their
relief
,
this
Court has nevertheless found that the relief to be granted accords
with the initial relief sought by the applicants in prayer
1 of their
Notice of Motion
.
Thus
the opposition initially raised by Frankel in relation to the
broadness of the order sought would in any event have failed
.
Furthermore
,
Frankel continued to oppose the relief
sought in prayer 2
,
and
this would have remained an issue argued before this Court but for
the passing away of Frankel a mere few weeks before the hearing
of
this application.
[126]
In all these circumstances
,
this
Court is not of the view tha
t
the
Minister alone should be ordered to pay the full costs of this
application, as suggested by
t
he
applicants
,
particularly
having regard to the fact that all costs paid by the Minister
u
l
timately
flow from taxpayers' money
.
[127]
This case is different from
Malachie
.
There, after the employers had
agreed to her
release
after
securing an agreement that Ms Malachie would
not
require them to pay her costs, the
employers took no further part in the proceedings. The court
specifically stated that
"
the
position would have been different had the employers
insisted
on Ms Malachie's further
detention and defended the constitutional validity of the
proceedings".
[128]
Frankel chose
to
continue
to
actively
oppose
these
proceedings
right
up
until his death
.
A
further point of departure from the facts
in
Malachie
is
that until the hearing of this matter, and until the undertaking
given by the applicants that they would pursue costs only against
the
Minister, Frankel was fully aware that a costs order would be sought
against him. This Court is not bound by agreements entered
into
between the applicant and Frankel in
relation to costs entered
into
which
affect third parties, such as the Minister
in
this
case.
[129]
In
relation
to
the
Minister, the situation here too is similar to the
dictum
of
Mogoeng CJ
[94]
referring to
the fact that the Minister had failed to amend the defending
provisions of the Constitution
in
that
case for some 15 years.
In
this
case
,
the
Minister has failed to ensure that section 18 of the CPA, which
offends the provisions of
the
Constitution,
has been suitably amended for a period of at least 10 years since
the
last
amendment
to section
18
of
the CPA was promulgated
in
2007
.
[130]
For
all these
reasons,
I am of
the
view that
the
costs of
this
appl
i
cation
must
be
shared equally between Frankel and the Minister unti
l
20 January 2017
,
whereafter they should be borne solely
by
the
Minister
.
N.
THE
ORDER
I
accordingly make the following order:
1.
It
is
declared
that
section
18
of
the
Criminal Procedure Act, 51 of
1977
,
i
s
inconsistent w
i
th
the Co
n
stitution
of the Republic of South Afr
i
ca
,
1996
,
and
invalid
to
the extent that
it
bars
,
in all circumstances
,
the right to
institute
a prosecution for all sexua
l
offences
,
other than
those
listed
in sect
i
ons
18(f)
,
(h)
and (i)
,
after the lapse of a per
i
od
of 20 years from
the time
when
the offence was committed
.
2.
The declarat
i
on
of constitutional invalidity
in
paragraph
1
above
is
suspended for a period of 18 months
in
order to allow Parliament
to
remedy
the const
i
tutional
defect.
3.
Pending the enactment of remedial
legislation by Parliament
,
or
the expiry of the per
i
od
referred
to
in
paragraph
2 above
,
whichever
is
the
sooner
,
section
18(f)
of the
Criminal Procedure Act 51 of
1977
is
to be read as though the follow
in
g
words
"
and
all other sexual offences
,
whether in terms
of
common law or statute
;"
appear after the words
"the
Criminal La
w
(Sexual Offences and Related
Matters) Amendment Act
,
2007
,
respectively
'.
4.
The
costs
of this application shall be paid
jointly
and severally by the First Respondent
and the Second Respondent until 20 January 2017, including the costs
of two counsel
,
after
which date the costs shall be paid solely by the Second Respondent.
_____________________
C
HARTFORD
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR APPLICANTS A KATZ SC
INSTRUCTED
BY IAN LEVITT ATTORNEYS
FIRST
AMICUS
COUNSEL
F HOBDEN B PITHEY
FIRST
AMICUS
ATTORNEY
WOMEN
'
S
LEGAL CENTRE
SECOND
AMICUS
COUNSEL G SNYMAN
SECOND
AMIVCUS
ATTORNEY
CENTRE FOR APPLIED LEGAL STUDIES
THIRD
AMICUS
COUNSEL
A DU TOIT
THIRD
AMICUS
ATTORNEY
CAPE
TOWN LAW CLINIC
JOHANNESBURG
LAW CLINIC
COUNSEL
FIRST FOR RESPONDENT
S KAZEE
INSTRUCTED
BY B GUNDELFINGER
COUNSEL
FOR SECOND
RESPONDENT
P NKUTHA
INSTRUCTED
BY STATE
ATTORNEY
DATES
OF HEARING
22-23
MAY
2017
DATE
OF JUDGMENT
[1]
Pp 1-2.
[2]
P 292, para 9.
[3]
P 293, para 10.
[4]
Pp 301-302, paras 9 and 10.
[5]
Founding Affidavit p 50, para 44; p 58, para 63.
[6]
Pp 15-47, paras 30-37.
[7]
Founding Affidavit p 49, para 43.
[8]
Founding Affidavit p 47, para 38.
[9]
Founding Affidavit p 47, para 39.
[10]
Founding Affidavit pp 47-48, para 41; pp 107-114 Annexure "PD10"
to "PD17".
[11]
Para 19 Minister's Affidavit p 361.
[12]
LHR Heads of Argument p 18, para 39.
[13]
Dated 27 November 2014 and revised in June 2013, p 5.
[14]
LHR Heads of Argument p 18, para 40.
[15]
LHR Heads of Argument p 19 para 41.
[16]
At para 29, p 46.
[17]
Minister's Affidavit page 368, para 44.
[18]
Para 90, p 64 Langa CJ with Sachs J concurring.
[19]
Para 35.1, p 15 Applicants' Heads of Argument.
[20]
Para 35.2, p 16 Applicants' Heads of Argument.
[21]
Para 35.3, p 16 Applicants ' Heads of Argument.
[22]
Para 25.
[23]
Masiya v DPP, Pretoria and Another
2007 (5) SA 30
at para [36].
[24]
Masiya v OPP, Pretoria and Another
2007 (5) SA 30
at para [37]
[25]
At para 62.
[26]
Founding Affidavit "PD18", p 115.
[27]
At para 10.1, p 161.
[28]
At para 10.1, p 161.
[29]
Para 5, p 144.
[30]
Para 11, p 192.
[31]
P 122, para 3.
[32]
P 123, para 3.1.1.
[33]
P 151, para 7.
[34]
Pp 151-152, para 7.1.
[35]
P 155, para 7.4.
[36]
Pages 192-193, para 11.2.
[37]
Page 194, para 11.3.
[38]
Page 195, para 11.3.
[39]
WLC Heads of Argument p 5, para 3.4.2.
[40]
WLC Heads of Argument p 5, para 3.4.3.
[41]
WLC Heads of Argument p 29, para 70.3.
[42]
Founding Affidavit page 38, para 68 and Paulsen and Another v Slip
Knot Investments 777 (Pty) Ltd
[2015] ZACC 5
,
2015 (3) SA 479
(CC)
at para
[69]
to [70].
[43]
WLC Heads of Argument p 29 para 70.
[44]
Higgins, D. 2004 Differentiating between child maltreatment
experiences. Family Malted No 69, pp 50-55.
[45]
Putnam FW, Trickett PK.
[46]
Ullman etc "Psychosocial Correlates of PTSD Symptom Severity in
Sexual Assault Survivors Journal of Traumatic Stress Vol
20 No 5
October 2007 , p 821.
[47]
WLC Heads of Argument p 30, para 70.4.
[48]
Ullman supra at p 383 and WLC Heads of Argument p 30, para 70.5.
[49]
Nataly Woollett p 80, para 28.
[50]
TBC Heads of Argument p 6, para 11.
[51]
TBC Heads of Argument p 12, para 27.
[52]
Heads of Argument LHR p 10, para 18.
[53]
Minister's Heads of Argument p 5, para 12.
[54]
Minister's Heads of Argument pp 11-12, para 27.
[55]
Minister's Heads of Argument p 12, para 29.
[56]
Minister's Heads of Argument p 13, para 29.
[57]
Paragraph 30 Minister's heads of argument.
[58]
Minister's Affidavit pp 371-372, para 54.
[59]
Minister's Affidavit p 373, para 55.
[60]
Minister's Affidav it p 374, para 56.
[61]
Minister's Affidavit p 375, para 59.
[62]
Minister's Affidavit p 376, para 64.
[63]
Minister's Affidavit p 377, para 66.
[64]
Minister's Affidavit pp 378-379, paras 69-70.
[65]
Van Zijl v Hoogenhout
2005 (2) SA 93
(SCA) at para [19].
[66]
At p 624, para [48].
[67]
At p 624, para [49].
[68]
Van Zijl v Hoogenhout
2005 (2) SA 93
(SCA) at para [19].
[69]
Applicants' Heads of Argument p 4, para 3.
[70]
S v Makwanyane and Another 1995 (3) SA 391.
[71]
Minister's Affidavit p 373, para 55.
[72]
Minister's Affidavit p 380, paras 74-75.
[73]
At para [35].
[74]
Dawood para [35].
[75]
WLC Heads of Argument p 38, para 88.
[76]
At para [77].
[77]
At para [66].
[78]
1998 (12) BCLR 1517
(CC);
1999 (1) SA 6
(CC) at para [35].
[79]
Bothma v Els
2010 (2) SA 622
at footnote 76 p 650.
[80]
2016 NZHC 1541
at paras [18] to [20].
[81]
At paragraph [34].
[82]
At paragraph [47].
[83]
At paragraph [11].
[84]
At paragraph [32].
[85]
At para [62].
[86]
At paragraph [29].
[87]
At paragraph [57].
[88]
Baloyi para [13], Carmichele supra at para [62] and Van Eeden v
Minister of Safety and Security
2003 (1) SA 389
(SCA) at para [15].
[89]
At para [50].
[90]
At para [7].
[91]
Rejoinder pages 301-302, para 9.
[92]
2003 (10) BCLR 1087
(CC).
[93]
First Respondent's note on costs p 3, para 7.
[94]
At paragraph [8].