Du Plessis and Others v Hoogenhout and Another (9253/99) [2003] ZAWCHC 18; [2003] 3 All SA 384 (C) (23 May 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2003
>>
[2003] ZAWCHC 18
|

|

Du Plessis and Others v Hoogenhout and Another (9253/99) [2003] ZAWCHC 18; [2003] 3 All SA 384 (C) (23 May 2003)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPORTABLE
IN THE HIGH
COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No: 9253/99
In
the matter between:
J.P.D.P.
1
st
Plaintiff
E.Z.

2
nd
Plaintiff
J.Z.

3
rd
Plaintiff
D.W.W.
4
th
Plaintiff
and
IMKER
MAREE HOOGENHOUT
1
st
Defendant
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT 2
nd
Defendant
JUDGMENT: 23 MAY 2003
NEL,
J:
On 19 August 1999 the four Plaintiffs
served a summons on the First Defendant (
Hoogenhout
) claiming
damages for mental illness, psycological disturbance and other
injuries alledgedly caused by sexual assaults to which
they had been
subjected as children during the period 1956 to 1965. First and
Fourth Plaintiffs (‘
D.P. and W.
’) are sisters and are
cousins of
Second and Third Plaintiffs (‘
E.Z.J.Z.,’)
are sister and brother.
Hoogenhout
is married to an aunt
of the plaintiffs, namely a third sister of their two mothers.
Hoogenhout
denied the allegations and in the alternative pleaded that the claims
had become prescribed.
The
period of extinctive prescription of a claim for damages arising from
a delict is three years from the date upon which the debt
becomes
due. (the 1969 Prescription Act upon which
Hoogenhout
relied).
Usually
this would be date upon which the delict is committed, but in terms
of section 12(3) of the Act
‘
A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care’
In
addition, if the period of extinctive prescription is completed
whilst the creditor is a minor, the completion is delayed until
the
expiry of one year after the attainment of majority. (sec 13)
Hoogenhout
pleaded that
E. Z.’s
claims had prescribed in that
the sexual assaults had
allegedly occurred during the period November 1958 to 1965;
she had attained
majority during 1973;
she had at all times
been aware of his identity and of the facts from which her claims
had arisen, or alternatively, she could
have acquired such
knowledge by exercising reasonable care;
In reply thereto and also
relying upon the 1969 Act,
E. Z.
pleaded that
she had first become
aware of the effects and consequences of
Hoogenhout’s
sexual assaults on her phyche, personality and ability to function
as a person during 1997;
Hoogenhout’s
debt to her thus only became due during 1997;
alternatively
,
until 1997 she had been prevented by superior force from
interrupting the running of prescription (sec. 13 (1) (a) ).
alternatively,
on the 5
th
July, 1999,
Hoogenhout
had admitted to
D.P. and W.
that he had played roughly “met julle
kinders”, which, by necessary implication, included
E.Z.
(sec. 14 (1) ) and
in the further
alternative
, that sections 10(1) and 11(d) of the 1969
Prescription Act are invalid and not applicable (the three year
period of prescription)
as they are in conflict with a number of
sections of the Constitution of the Republic of South Africa Act
108 of 1996.
The
last alternative necessitated the belated joinder of the Minister of
Justice and Constitutional Development as a defendant (see
Rule 10 A
of the High Court Rules).
Pursuant
to an agreement reached at a pre-trial conference held on 20
September 2001, the First, Third and Fourth Plaintiffs’
actions
were postponed
sine die
and only
E. van Z.’s
action
proceeded.
Hoogenhout
was not present or represented during
the trial. A letter from his attorney was handed in which reads as
follows:
“
We
refer to the above and the telephonic discussion with the writer and
yourself on Friday the 19
th
instant at 3h00 pm, and
confirmed that we have telephonically advised our erstwhile client of
the fact that the matter will be
heard at 10h00 am Tuesday the 23
rd
October 2001 at the High Court, Cape Town.
Our
client’s wife has indicated that our client will not be attending
the matter. Client has however, insisted that we once again

reiterate his view that he is
not
guilty of any of the
charges as brought against him by the claimants and that if he had
further funds available, he would have
fought the matter to the very
bitter end.”
Initially
the Minister was represented by Mr
Yamie
, but at a later stage
the constitutional issue (the third alternative) was abandoned and on
that aspect only the issue of costs
occasioned by the joinder of the
Minister remains to be decided.
As
pointed out, in her reply to the plea of prescription, and relying
upon section 13(1) (a) of the 1969 Act,
E. van Z.
pleaded as a
first alternative that she had been prevented by superior force from
interrupting the running of prescription.
Section
13(1) (a) of the 1969 Act reads as follows:
“(1) If
–
the creditor is a minor
or is insane or is a person under curatorship or is prevented by
superior force including any law or any
order of court from
interrupting the running of prescription as contemplated in section
15 (1);”
There
was no evidence that a ‘superior force’ had prevented
E. van
Zyl
from instituting the action at an earlier date.
See
also
Louw v Louw and Others
1933 CPD 163.
The
second alternative, namely that on the 5
th
July, 1999
Hoogenhout had admitted to
D.P.
and
W.
that he had
played roughly “met julle kinders”, which by necessary
implication included
E. van Z.,
cannot succeed. The
admission relied upon cannot be equated with an admission of sodomy
and rape. In any event, the admission
had not been made to
E. van
Z.
or her duly authorized agent. See
Pentz v Government of
RSA
1983 (3) 584 (AD) at 594 C-D as follows:
“
The
second reason is that what s 14 (1) contemplates is an acknowledgment
of liability to the creditor or his agent. See
Markham v South
African Finance & Industrial Co Ltd
1962 (3) SA 669
(A) at
676F. Counsel for the Government sought to distinguish that case on
the ground that it was decided with reference to s
6(1) (a) of the
previous Prescription Act 18 of 1943, the language of which differed
from s 14 (1) of the present Act. That is
so, but RUMPFF JA said in
Markham’s
case (at 676G) that, apart from the wording of s
6(1), there were other considerations which led him to the conclusion
that the
words, ‘acknowledgement by the ‘debtor’ should be
construed as meaning an acknowledgment to the creditor or his agent.”
That
left the question whether the claims had become prescribed prior to
August 1997.
In
this regard Mr
Whitehead
who appeared on behalf of
E. van
Z.
submitted as follows:
“
The
Second Plaintiff’s case as pleaded is that she ‘became aware …
only in and during 1997 … of the effects of Defendant’s
unlawful
and indecent conduct on her psyche, personality and ability to
function as a person.’
Particulars
of Claim paragraph 20 (page 12);
amplified as follows:
‘
Towards
the end of 1996’
she ‘watched a television programme about
adult victims who had been sexually abused as children. She
thereafter for the first
time began to realize that she might not
have been responsible nor to blame for the indecent assaults the
Defendant had committed.
This process was facilitated in 1997 by the
Second Plaintiff also disclosing those indecent assaults to … a
rape crisis counselor
in Port Elizabeth. In the course of that
counseling the Third Plaintiff (her brother) telephoned her and
disclosed that he had
also been assaulted by Defendant. She then
became aware of the effects …’ described above.
The
paragraphs in the Particulars of Claim relating to the sexual
assaults on
E. van Z.
read as follows:
“
16. 16.1 From about
November, 1958 when Second Plaintiff was six years old Defendant
unlawfully and intentionally indecently assaulted
her by:
initially touching her
vagina; and
thereafter penetrating
her vagina and anus with his finger(s);
When Second Plaintiff
was about seven years old the Defendant commenced unlawfully and
intentionally to:
sodomise
her; and
indecently
assault her by placing his penis in her mouth;
When
Second Plaintiff was approximately eight years old Defendant raped
her for the first time;
He continued to rape and
sodomise her repeatedly over seven years;
These indecent
assaults, acts of sodomy and rapes occurred approximately once a
month at the Defendant’s residence at the
time and on one
occasion in his office;
When Second Plaintiff
was fifteen years old she was admitted to Hottentots Holland
Hospital due to an alleged appendicitis.
She was advised by the
nursing staff that:
she
was pregnant; and
underwent
an abortion. The aborted child was conceived as a result of
Defendant having raped Second Plaintiff;
As a result of the
aforesaid indecent assaults, sodomy, rapes and abortion Second
Plaintiff has endured shock and stress, pain
and suffering,
contumelia and chronic emotional and psychological trauma.
The sequelae of the
aforesaid indecent assaults, sodomy, rapes and abortion is that
Second Plaintiff:
Was degraded and
humiliated and has suffered significant impairment to her
personality and psyche;
Suffers from
nightmares;
Started abusing;
alcohol during
adolescence; and
prescription medication
for a period during early adulthood;
Started taking sleeping
pills at the age of ten and is unable to sleep unless she takes a
sleeping pill;
Has extremely poor
self esteem and feels suicidal;
Is physically abusive
in relationships;
Is unable to conduct a
healthy sexual relationship;
On occasion
intentionally injures herself; and
Is terrified of the
dark.
As a consequence of the
emotional and psychological difficulties referred to above, Second
Plaintiff is obliged to commence
a course of psychological therapy
immediately.
It was only in and
during 1997 that Second Plaintiff became aware of the effects of
Defendant’s unlawful and intentional conduct
on her psyche,
personality and ability to function as a person.
The
sexual assaults culminated in a pregnancy and in a particularly
stressful abortion at the age of 15 when she was in standard
seven.
Instead of parental support, she was blamed by her parents who
refused to believe her.
The
sequelae
were horrific.
Ms
Fredman, a clinical psychologist who specializes in the treatment of
victims of sexual assault spent approximately 20 hours in

consultation with
E. van Zyl
and approximately another 20
hours while she was being evaluated by other experts instructed by
Hoogenhout,
summarised the effects as follows:
“
I
think if you look as Ms V.Z.’s life story, life history you see
that the effects of repeated and severe sexual abuse of a violent

nature has affected every aspect of her life, her personality
development, her relationships with her primary caretakers, her
mother, her father, her siblings, the way she views herself, the way
she views her world around her have all been profoundly affected.

She lost her ability to trust, to trust adults, to trust friends
together with the fact that she’s developed and continued to

develop defences, protective mechanisms psychologically protective
mechanisms that were maladaptive, that were difficult in later
life,
self-blame, shame, depression, they’ve all shaped the way she
inter-acted with her world. There’s not a single aspect
in her
life, her schooling, her relationships, her personality, her view of
the world, have all been severely affected by the trauma
of the
abuse.”
In
summary, a typical pattern of the effects of repeated and severe
sexual abuse of a violent nature is exhibited by the Plaintiffs.
The
histories which they recount shows many of the features, which are
now well understood to be associated with such abuse.
Their visions
and beliefs about themselves, the other people and the world around
them have been profoundly affected in a negative
way. They have lost
their capacity to trust others. Their defensive behaviour patterns,
coloured by unresolved anger, undermine
their relationships at work
and at home. The Plaintiffs’ subjective and emotional world has
been overwhelmed with negative emotions
– self-blame, guilt,
anxiety, shame and depression, and they have been irrevocably
deprived of their peace of mind. Common strategies
victims of CSA
turn to reduce psychological suffering is alcohol, substance abuse,
or over eating which has been the case with
all the Plaintiffs. This
in turn has further compromised their life, work and relationships.”
The
allegations relating to the sexual assaults and their
sequelae
were substantiated by the uncontraverted evidence of
E. Z.
and
her friend
Potgieter
.
Although
her evidence was not tested by cross-examination, I have no reason to
doubt its veracity. Although an emotional wreck,
E. Z.
made a
good impression as a witness. There is also no reason why the
corrobarative evidence of
Potgieter
should not be accepted.
However,
and as pointed out, if she had become aware of the effects and
consequences of the assaults prior to August 1996, her claims
would
have become prescribed in terms of sections 12 and 13(1) (a) and (i)
of the 1969 Act.
Mr
Whitehead
submitted that the
onus
was on
Hoogenhout
to establish
-
when she had
acquired the requisite knowledge of the facts from which the debt had
arisen (section 12(3) and.
- when the extinctive
prescription (section 12(1) had commenced to run;
In
this regard he referred to
Gericke v Sack
1978 (1) SA 821
(A)
at 824D-828C;
Drennan Maud Rand & Partners v Pennington Town
Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 204B-G;
Santam Ltd V Ethmar
[1998] ZASCA 102
;
1999 (2) SA 244
(SCA) at 252B-256G; and
Nedcor Bank Bpk v Regering
van Die Republiek van Suid-Afrika
2001 (1) SA 988
(SCA).
When
the provisions of section 13 of the 1969 Act are invoked to establish
a delay in the running of prescription, the plaintiff
carries the
burden of proof. See
Howie JA
as follows in
Absa
Bank Bpk v De Villiers 2001(1) SA 481
(SCA)
at
p486 G –
487 C
“
Wat
bewyslas betref, is dit geykte reg dat die party wat verjaring opper
dit moet bewys. Aan die ander kant, indien uitstel van
die afloop
van verjaring deur die teenparty beweer word waar die betrokke
verjaringstermyn andersins klaarblyklik verstryk het,
rus die
bewyslas nie op die teenparty om sodanige uitsel te bewys nie? ‘n
Bevestigende antwoord is
Eagle Versekeringsmaatskappy Bpk
1985 (2)
SA 42
(O) te 47F-G
, waar art 13(1)(g) ook ter sprake was en die
Hof, sonder bespreking, die stelling gemaak het met ‘n beroep op
Kapeller v Rondalia Versekeringskorporasie van Suid-Afrika Bpk
1964 (4) SA 722
(T). In laasgenoemde saak het die tersaaklike
verjaringstydperk verstryk tussen die ontstaan van die vordering en
die instelling
van die geding. Op 728A is gesê dat
‘
(d)ie
bewyslas is dus op die eiser om stuiting te bewys.
Zingel v Doll
1939 SWA 13 te bl. 14’
In
Zingel
se saak egter (waar die eiser beweer het dat die
verweerder ‘n erkenning gemaak het wat laasgenoemde se verjarings
verweer sou
ontsenu) was daar slegs ‘n bevel dat die eiser die
‘onus om te begin’ gedra het. Die trefpunt van die algehele
bewyslas
was nie ter sake nie.
Na
my mening moet die antwoord gevind word aan die hand van algemene
beginsels. Waar dit duidelik is, sonder meer, dat die
verjaringstydperk
verstryk het, het die verweerder ‘n volkome
verweer: die eis is finaal uitgewis. Indien op stuiting van
verjaring of uitstel
van die voltooiing van verjaring staatgemaak wil
word, is die posisie nie net dat die eiser sal moet begin nie.
Indien dit op
die getuienis van ‘n besondere saak onseker is of
stuiting, of die gebeure waarna in art 13(1) verwys word, plaasgevind
het al
dan nie, sal die eis in daardie situasie noodwendig moet faal.
Die repliek wat deur so ‘n eiser geopper word is dus ‘n aparte

geskilpunt ten opsigte waarvan daar ‘n afsonderlike bewyslas (in
die sin van die algehele bewyslas) bestaan:
Pillay v Krishna and
Another
1946 AD 946
te 953. In die onderhawige saak het
appellant dus die bewyslas gedra om uitstel van voltooiing van
verjaring ingevolge art 13(1)(g)
te bewys. In besonder verg dit van
die eiser om te bewys van wanneer tot wanneer die hoofskuld die
voorwerp was van ‘n eis wat
teen die insolvente boedel ingedien
is.”
In
contrast, and how incongruous it might seem, where the provisions of
section 12 (3) are involved, the plaintiff carries no
onus
and
the defendant who pleads prescription has to prove the date upon
which the plaintiff had acquired the requisite knowledge of
the facts
from which the debt had arisen.
In
Gericke v Sack
1978 (1) SA 821
(A)
Diemont JA
stated it
as follows: (at p. 826 C-827G)
“
Mr
Cloete, for the respondent, submitted that, in coming to this
conclusion, the trial Court had erred. He sought, as it were, to

apportion the burden of proof by contending that the onus was on the
respondent to prove the defence raised on his special plea
but, in so
far as the appellant was concerned, the onus was on her to prove the
facts on which the exception contained in sec 12(3)
of the Act was
based. In support of his argument he relied partly on the form in
which the pleadings were cast and partly on two
cases in which a
similar question had arisen where prescription had been pleaded in an
action for defamation
.
In
the earlier of these two cases,
Holmes v. Salzmann
,
1913
O.P.D. 111
, MAASDORP, CJ., dismissed, with more candour than
courtesy, a ruling which had been laid down
‘
so
long ago as 1856 in case of
Reid v. Van der Walt
,
2 Searle
285
, in a judgment which was apparently not written and
well-considered, but one given on the spur of the moment immediately
after
argument.’
That
was a ruling in which BELL and CLOETE, JJ., held that
‘
In
an action of damages for slander, the law being that such action is
prescribed if not brought within a year after knowledge of
the
slander on the part of the complainant, it is not incumbent on the
plaintiff, bringing his action after the year, to prove
that the
slander did not come to his knowledge until within a year after the
commencement of suit, but it is incumbent on the defendant
to plead
and prove as matter of defence that the plaintiff was aware of the
slander for upwards of a year after it was uttered
and yet failed to
proceed. (Grotius, 3.35.3, note 6; Voet, 47.10.21.0’
MAASDORP,
CJ., held that the ruling in Reid’s case was merely an
obiter
dictum
and said that in any event neither of the passages
cited from Voet and Groenenwegen’s note to Grotius lend support to
it. He
posed the question:
‘
Why, then, should the
defendant in the present case be called upon the allege in his plea
knowledge on the part of the plaintiff,
a matter as to which he may
be wholly ignorant and of which the plaintiff has of necessity a very
special knowledge?’
The
decision in
Holmes v. Salzmann
was approved and the reasoning
adopted and applied in the second case cited by respondent’s
counsel – the case of
Yusaf v. Bailey and Others
,
1964 (4)
S.A. 117
(W). This was a matter in which a similar problem faced the
court, namely which party must bear the onus of proof which arises

where the date on which the defamation was first brought to the
knowledge of the claimant is in dispute. VIEYRA, J., is reported
at
p. 119 of the judgment to have stated:
‘
Counsel
told me that they could not find any decided cases dealing with this
point. There are however two reported cases dealing
with the point.
The first is that of
Reid v. Van der Walt
, 2 S. 285. Relying
on Voet, 47.10.21 and Groenenwegen’s Note 6 to Grotius 3.35.3., the
Court came to the conclusion that the
onus of pleading and proving
that the plaintiff was aware of slander rested on the defendant. The
other is
Holmes v. Salzmann
,
1913 O.P.D. 111
, in which the
Court (MAASDORP, CJ.,) came to the contrary conclusion (see at
p.118). It was pointed out that the authorities relied
on in the
earlier case did not bear out the inference drawn, as indeed is the
case. Moreover it would be contrary to principle
to cast an onus on
a defendant in relation to the facts so peculiarly within the
knowledge of the plaintiff. The earliest date
from which the period
laid down in sec. 3 (2) (b) (i) of the Prescription Act, 18 of 1943,
can run is the date of the publication
of the defamatory matter. In
the vast majority of cases a defendant would have no means of
establishing exactly when the plaintiff
first learned of the
defamation or ascertained the identity of the parties responsible.
The conclusion is that the onus must lie
on the plaintiff. I
respectfully agree with the decision of the Orange Free State Court’
In
urging the Court to apply the same reasoning in the case now under
consideration, Mr Cloete conceded that
Holmes v. Salzmann
was
decided under the common law and
Yusaf v. Baily
under the old
Prescription Act of 1943, but argued that basically the position
remained unchanged under the
Prescription Act of 1969
. I am prepared
to accept for the purpose of counsel’s argument that the change in
wording in the new Act (cf. sec. 5 of Act
18 of 1943 with sec. 12 of
Act 68 of 1969) does not provide a ground for distinguishing these
two cases, but I am not prepared
to accept that the reasoning must be
followed. It may well be, as was emphasized in both the judgments
referred to, that it will
at times be difficult for a debtor who
pleads prescription to establish the date on which the creditor first
learned his identity
or, for that matter, when he learned the date on
which the delict had been committed.
But
that difficulty must not be exaggerated. It is a difficulty which
faces litigants in a variety of cases and may cause hardship
– but
hard cases, notoriously, do not make good law. It is not a principle
of our law that the onus of proof of a fact lies
on the party who has
peculiar or intimate knowledge or means of knowledge of that fact.
The incidence of the burden of proof cannot
be altered merely because
the facts happen to be within the knowledge of the other party. See
R v
Cohen
,
1933 T.P.D. 128.
However the Courts take
cognizance of the handicap under which a litigant may labour where
facts are within the exclusive knowledge
of his opponent and they
have in consequence held, as was pointed out by INNES, J., in
Union
Government (Minister of Railways) v. Sykes
,
1913 A.D. 156
at p.
173, that
‘
less
evidence will suffice to establish a prima facie case where the
matter is peculiarly within the knowledge of the opposite party
than
would under other circumstances be required’
But
the fact that less evidence may suffice does not alter the onus which
rests on the respondent in this case.”
This
decision was also quoted with approval by
Harms JA
in
Santam
Ltd v Ethwar
[1998] ZASCA 102
;
1999 (2) SA 244
(SCA) 244 at 256 G.
Although,
there was no
onus
on her to establish the date on which
prescription commenced to run, she testified that only after watching
a television show in
August 1997, had she realized that the sexual
abuse had not been her fault, that she was not the only abused child
in the world
and that the abuse was the cause of her psychological
problems.
This
phenomenon has become known as ‘late discovery’ of the cause of
psychological damage.
During the last twenty to thirty
years extremely disturbing evidence of child abuse and in particular,
child sexual abuse, came
to light in numerous jurisdictions. In
Canada, for example, the Badgely Report, (1984), revealed that one in
two girls and one
in three boys are the victims of unwanted sexual
advances before they reach the age of eighteen. Three out of five of
these victims
were threatened or physically coerced. See
‘
Consultation Paper on The Law of Limitation of Actions Arising
from Non-Sexual Abuse of Children’ published by The Law Reform
Commission of Ireland – August 2000
.
This
has led to a ‘growing social awareness that sexual abuse of
children is an endemic problem that oftens translates into emotional

and spiritual devastation’
.
See Mark E Roseman – Adult Survivors of Childhood Sexual Abuse:
Revisiting the California Statute of Limitations
–
www.smith-lawfirms.com/California.html
.
Of
importance, it has become recognized in many jurisdictions that these
emotional and spiritual devastations could lead to situations
where
the real causes of mental problems are not ‘discovered’ until
many years later.
This
led to a number of law reform commission reports and amendments to
statutes of limitations including numerous such statutes
in the USA.
See
The Advocate Times
http://alterboys.tripod.com/Faith/Extending_thex.html
as follows:
“
The majority of the
states now have some type of provision extending the statute of
limitations for adult survivors of CSA, although
the remedy varies
depending upon state. See National Survey of Extended and
Discovery-Based Statutes of Limitation Applicable
to Claims of
Childhood Sexual Abuse (rev. 1997). Some of the extended periods are
provided for by legislative statute, and others
are contained in
‘tolling’ doctrines adopted by the courts. A tolling doctrine is
a rule that postpones the date from which
a statutory period is
counted. A simple example would be a statute that that provides for
‘minority tolling.’ A statute that
might runs 3 years from the
date of the injury would run 3 years from achieving the legal age of
majority (usually age 18). In
some instances, tolling provisions
provide a grace period if the victim is under a statutorily described
disability when the statute
expires (runs out).
Delayed
Discovery. Provisions based upon delayed discovery of the fact of
the injury, i.e. the recovery of repressed memory. The
statute of
limitations would begin to accrue on the date that the memory was
recovered. Delayed discovery provisions have been
instituted by
legislative statures and by courts adopting or applying ‘common
law’ (judge made) doctrines.
Delayed
Discovery/Realization. Provisions based upon discovery of the injury
and/or the fact that the injury or illness suffered
by the victim was
caused by the abuse. For an example, see Atty. Jo-Hanna Read’s
explanation of how Washington’s statute works.
Incapacity
Tolling. Many states have general provisions which toll statutes in
the event of mental incapacity or insanity. Some
jurisdictions have
held that repressed memory or post-traumatic stress disorder
constitutes ‘insanity’ sufficient to toll the
limitations period.
The
Consultation Paper no. 251 of the Law Commissions for England and
Wales, reads as follows par. 13.19 – par 13.22, 10.75, 10.97,
10.98
“
13.9 We discussed
above the purpose of limitations law. Limitations periods counter
the unfairness that would attach to a defendant
if a claim was
enforceable for an indefinite period. In addition, with the passage
of time it may become difficult either to prove
or disprove a claim
and, moreover, it is thought proper that a plaintiff should act
promptly to enforce a claim. Limitations law
balances issues of
fairness to the plaintiff and fairness to the defendant, by giving
the plaintiff a limited amount of time within
which to bring a claim,
and affording the defendant protection from proceedings by the
plaintiff after that time has expired.
When it comes to sexual abuse
cases, however, there are persuasive arguments that the balance
should be adjusted in favour of the
plaintiff, and it has been argued
that no limitation period should apply to such claims.
The Ontario Limitations
(General) Bill 1992, incorporating the recommendation of the
Ontario Limitation Act Consultation Group
in their 1991 report,
provided that no limitation period should be applied where the
proceedings arise ‘from a sexual assault
if at the time of the
assault one of the parties to it had charge of the person
assaulted, was in a position of trust or authority
in relation to
the person or was someone on whom he or she was dependent, whether
or not financially’. A number of reasons
were given by the
Consultation Group for this recommendation. It thought that the
imposition of a limitation period would
reward assailants who had
traumatised and silenced the victim. Moreover, it thought that in
the case of sexual assault public
policy would be better served by
allowing the plaintiff to bring an action against the defendant
rather than putting an end
to the venting of old disputes. The
defendant was unlikely to be prejudiced by loss of evidence as it
was his or her conduct
that was in issue:
The plaintiff [was] more
likely to face evidentiary problems, because the assault will often
have taken place when the plaintiff
was young or otherwise
vulnerable.
In addition, it thought that it was unlikely that the
plaintiff would delay in bringing the claim as it was essential to
the healing
process.
Further more, in its
decision in KM v HM, the Supreme Court of Canada said that although
There are instances
where the public interest is served by granting repose to certain
classes of defendants … there is absolutely
no corresponding public
benefit in protecting individuals who perpetrate incest from the
consequences of their wrongful actions.
The patent inequity of
allowing these individuals to go on with their life without
liability, while the victim continues to suffer
to consequences,
clearly militates against any guarantee of repose.
As to the argument that
the evidence may be stale, La Forest J (with whom the other judges
agreed) said that this was a characteristic
of most childhood sexual
abuse cases and, in any case, much of the evidence will be direct
evidence from the parties themselves
rather than corroborative.
Finally, with respect to the argument that a plaintiff must act
diligently and not sit on their rights,
the Court thought that this
was not persuasive here because the damage remains latent until
adulthood, and even when the damage
is apparent the connection
between the incest and the injuries may not be made, and social
forces discourage victims from coming
forward.
13.22 We note that the
Law Reform Commission of Western Australia commented with respect to
the proposal that in certain circumstance
there should be no
limitation period for claims by sexual victims that, ‘the arguments
advanced in favour of such a provision
are in essence the same
arguments as those put forward in KM v HM to support the view that
the limitation period should not begin
to run until the
discoverability requirement is satisfied. In most cases, the
plaintiff’s right to sue will be preserved by
the discoverability
period… . We agree. Courts in the United States have also
generally applied limitation periods to claims
by sexual abuse
victims on the basis that they start to run when the cause of action
becomes discoverable.
The
decision in Invercargill City Council v Hamlin could therefore be
argued not to have any direct application in a wider context.
But
the ambit of the discoverability rule has been broadened by two
subsequent decisions of the New Zealand Court of Appeal.
First in
S v g discoverability was applied to an action arising out of
sexual abuse. The defendant had been convicted of
indecently
assaulting the plaintiff when she was below the age of majority.
The plaintiff, some years later, brought an action
against the
defendant in negligence and in trespass to the person in respect of
psychological and emotional damage caused by
the abuse. It was
held that the plaintiff’s cause of action in negligence began
when the plaintiff discovered, or should
have discovered, a causal
link between that damage and the abuse. In reaching this decision
the court drew upon the reasoning
of the Supreme Court of Canada in
KM v HM. As regards the claim for trespass to the person, which
did not require proof of
damage, the Court of Appeal supported the
trial judge in holding that a discoverability test should be
applied, but with regard
to the date on which the plaintiff
realized, or should have realized, her lack of genuine consent to
the plaintiff’s actions.
The court recognized that this could
mean that time could run in respect of trespass claims before it
started to run in a
negligence claim on the same facts, but the
rules relating to fraudulent concealment could operate to delay the
start of the
limitation period.
One
of the most problematic areas of latent damage is that sexual
abuse, where there can be a very delay between the abusive
acts and
the manifestation and understanding of the effects of those acts,
for example as psychiatric illnesses. Some jurisdictions
have
legislated specifically on claims for sexual abuse. In British
Columbia, Newfoundland and Saskatchewan there is no limitation

period at all for a cause of action based on misconduct of a sexual
nature. In Ontario the Limitations Act Consultation Group

appointed by the Attorney-General recommended that limitation
periods should be abolished in sexual abuse claims. In Nova
Scotia
a cause of action for various types of trespass to the person will
be deemed not to have arisen until the plaintiff
is aware of the
harm and of its causal relationship with the abuse, and time will
not run while the plaintiff is not reasonably
capable of commencing
proceedings because of physical mental of psychological conditions
resulting from the abuse.
But
the Canadian courts have also taken an active role in dealing with
this problem. In KM v HM the plaintiff had been abused
during the
period from 1964 to 1974, between the ages of 8 and 17. She later
married, but her marriage failed in 1983. She
started to attend
meetings of self-help group in 1984 and commenced therapy in 1984,
and it was only then that she realized
that the psychological
damage she had suffered was due to the abuse. She commenced
proceedings in 1985. The Supreme Court
of Canada held that under
the relevant statute time should run against the plaintiff when she
was reasonably capable of discovering
the wrongful nature of the
acts perpetrated against her and, by a majority, that it should be
presumed that a plaintiff in
these circumstances would not discover
the connection between the abuse and the injuries suffered until
therapy began. Moreover,
the court unanimously held that in any
case the defendant had committed a breach of fiduciary duty, to
which no limitation
period applied under the Ontario legislation.
Judgment was reserved,
but when considering the submissions relating to prescription and the
evidence led about the late discovery
of the effects and consequences
of the sexual assaults, it became apparent that the provisions of the
1969
Prescription Act might
not be applicable.
Counsel were then
requested for additional submissions on this aspect.
This led to an amendment
to
Hoogenhout
’s Special Plea, who now pleaded prescription
in terms of this 1943 Act as an alternative to the provisions of the
1969 Act.
A further alternative was
then added to the Replication. It reads as follows:
“
7(b) In terms of
section 5(1) (c) of the Prescription Act 18 of 1943, the wrong upon
which the Second Plaintiff’s claim for damages
is based was first
brought to her knowledge during that year, [1997] alternatively the
Second Plaintiff might reasonably have been
expected to have
knowledge of that wrong during that year.”
Section 16 of the 1969
Act reads as follows:
“
16. Application
of this Chapter.
– (1) Subject to the provisions of
subsection (2)(b), the provisions of this chapter shall………….
apply to any debt arising
after the commencement of this Act. (Afr.
‘van toepassing op enige skuld wat na die in werkingtreding van
hierdie Wet ontstaan’)
The provisions of
any law-
which immediately
before the commencement of this Act applied to the prescription of a
debt which arose before such commencement;
(Afr.
‘’n skuld wat voor daardie in werkingtreding ontstaan het’)
…
shall continue to
apply to the prescription of the debt in question in all respects as
if this Act had not come into operation.”
It
is clear that the delicts relied upon by
E. Z.
and which had
occurred between 1956 and 1965 could not be ‘
debts
’ which
had arisen after the commencement of the 1969 Act and are thus
governed by the provisions of the 1943 Act.
The
1943 Act provided for a prescriptive period of three years in
respect of actions for damages other than those for which another

period had been laid down (sec. 3 (2)(c) (vi)).
No
other period had been laid down in respect of assaults (sexual or
otherwise) and the prescriptive period was thus three years.
The
1943 Act also provided that in respect of any action for damages,
other than for defamation, prescription began to run
‘
from
the date when the
wrong
(Afr. ‘
onregmatige daad
’)
upon which the claim for damages is based was first brought to the
knowledge of the creditor, or from the date on which the
creditor
might reasonably have been expected to have knowledge of such
wrong
,
(Afr. ‘
van bedoelde daad
’) whichever is the earlier date’
(sec 5(1)(c)).
(Contrast
the 1969 wording “prescription shall commence to run ‘
as soon
as the debt is due’
(Afr. ‘
sodra die skuld opeisbaar is
’)
and
‘a debt shall not be deemed to be due until the creditor has
knowledge of the identity of the debtor and of the facts from which

the debt arises’)
The
‘
wrong
’ is the unlawful act or delict and, in the instant
case, the assaults which were committed by Hoogenhout.
The
‘
dates
’ of the ‘
wrongs
’ are the dates upon
which the assaults were committed, and not the dates upon which their
effects were realised.
See
Oslo Land Co Ltd v The Union Government
1938 AD 584
and
Administrator of the Transvaal v Crocodile Valley Citrus Estates
(Pty) Ltd
1942 AD 109.
In
terms of section 7 (1) (b) of the 1943 Act, the running of
prescription was suspended ‘
during the period of disability of
the creditor
’ (Afr. ‘
solank as wat die skuldeiser
regsonbevoeg is
’).
In
my view it is clear that
E. Z.
was not a disabled
(‘regsonbevoegde’) person and that her claims prescribed 3 years
after she had attained her majority in 1973.
The
joinder of the Minster was necessitated by the Rule of Court. In
view of the worldwide awareness of the extent of child abuse
and the
recent recognition of its devastating consequences, it could not, in
my view, be suggested that the constitutional issue
was raised either
frivolously, vexatiously or from improper motives.
In
the circumstances, I am of the view that an order for costs in favour
of the Minister should not be made.
Both
E. Z.
and
Hoogenhout
relied upon the wrong Prescription
Act. In the circumstances I am of the view an order for costs in
favour of
Hoogenhout
would be inappropriate.
In
the result
E. van Z.
’s action is dismissed and no orders as
to costs are made.
H C NEL