IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
Case no: 348/03
In the matter between
E VAN ZIJL APPELLANT
and
I M HOOGENHOUT RESPONDENT
Coram: MPATI DP, CAMERON, NUGENT, HEHER and VAN HEERDEN
JJA
Heard: 30 AUGUST 2004
Delivered: 27 SEPTEMBER 2004
Summary: Prescription – Act 18 of 1943 s 5( 1)(c) - claim by adult survivor of
child abuse against perpetrator – assaults committed between 1958 and 1967 –
plaintiff attaining majority in 1973 – effect of abuse on ability to attribute blame
to abuser – plaintiff not having knowledge of the wrong until able to do so.
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JUDGMENT
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A
2
H E H E R J A
HEHER JA:
[1] Abused children have a right of recourse against their abusers. Until the
nineteen-eighties the right was seldom invoked and, in South Africa, probably not at
all. Major reasons were cultural or societ al 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 been 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 in itiated proceedings years after the actual
incidents of abuse. This, in turn, has given rise to a spate of cases, particularly in the
United States, in which defendants have invoked limitations statutes. A considerable
body of judicial precedent has been built up in which the balance between the rights
of victims and the protection of their a ssailants against stale claims has been
discussed and resolved in the particular context of the common or statute law of the
states concerned. See eg the comprehensive treatment of the subject in the American
context by R G Donaldson ‘Running of Limitations against Action for Civil Damages
for Sexual Abuse of Child’ 9 ALR 5
th 321; and further, Carney v Roman Catholic
Archbishop of Boston 16 Mass LR 3; M.(K.) v M.(H.) 96 DLR (4 th) 289 (SCC);
Stubbings v United Kingdom (1996) 23 EHHR 213; W v Attorney-General [1999] 2
3
NZLR 709; KR and others v Bryn Alyn Community (Holdings) Ltd (in liquidation)
and another [2003] QB 1441 (CA); see also Dube v Banana 1999 (1) BCLR 44 (ZH).
[2] This is the first case of the kind in South Africa of which I am aware. It
commenced in the Cape High Court before Nel J. The learned judge heard evidence
from the side of the plaintiff only. The defendant had raised a special plea of
prescription and denied the merits of the cl aim. However he at first elected not to
participate in the trial citing ill-health and lack of funds . The evidence was
consequently untested by cross-examination.
[3] With the leave of the learned judge the defendant appeared through counsel for
the limited purpose of arguing the special plea. The judge believed the plaintiff and
her witnesses and accepted the expert psychological evidence of Ms Fredman on her
behalf. He nevertheless upheld the special plea and dismissed the action. He decided
that the wrongs first came to the knowledge of the plaintiff within the meaning of s
5(1)(c) of the Prescription Act 18 of 1943 on ‘the dates upon which the assaults were
committed and not the dates upon which their effects were realised’.
[4] The assaults were committed between November 1958 and 1967. The plaintiff
attained her majority in 1973. She instituted action in August 1999. The learned judge
held that the plaintiff’s evidence that she first realised in 1997 that it was not she but
rather the defendant who bore responsib ility for the physical, psychological and
emotional damage which she had su ffered since 1958 was accordingly of no
assistance to her. Nor, so the learned j udge found, was the plaintiff ‘a disabled
person’; she was therefore unable to rely on s 7(1)(b) of the 1943 Act which provides
4
that prescription shall be suspended ‘during the period of disability of the creditor’.
According to Nel J, the plaintiff’s claim against the defendant prescribed three years
after she reached majority, in terms of s 3(2)(c)(vi) read together with s 9 of the 1943
Act. No order for costs was made, the court a quo holding that both parties had
wrongly relied on the Prescription Act 68 of 1969.
[5] The learned judge refused the plaintiff leave to appeal. We, however, directed
that her application to this court for leave to appeal be argued and that the parties be
prepared to deal with the merits of the case. The application was heard on that basis.
[6] The principal difficulties in this appeal are the interpretation of the relevant
legislative provisions and the determination of whether the evidence of the plaintiff
and her expert witness brought her within those provisions.
[7] Before considering either aspect certa in general observations are necessary.
The psychological studies that have been undertaken into the sexual abuse of children
have revealed effects on the victims which are very different from those suffered by
the usual plaintiff in a delictual action. (I will discuss these effects in greater detail
below.) Of course, the prescription statutes in force in this country were drafted in
ignorance of and without consideration fo r the special problems afflicting such
survivors. Moreover, society as a whol e was, during the period prior to 1980 (and
certainly during the minority of the plaintiff) more conservative in matters involving
sexual mores than it is now and considerably less willing to confront sexual matters.
More people have become attuned in the last fifteen years or so to acknowledging the
existence of child sexual abuse and to taking steps to eradicate it. The situation of a
5
victim during the childhood of the plaintiff and a substantial part of her adult life
was not conducive to disclosure. All these factors call for a peculiar sensitivity when
applying statutory time limits to proceed ings arising from sexual abuse committed
against a child during the period in question. As Thomas J put it in W v Attorney-
General, supra (at 720):
‘Approaching the question whether [the appellant] made the connection between her sexual abuse
and adult behaviour, or ought to have discovered that connection, as if it were an exercise akin to
that of discovering cracks in a house foundation, does not demonstrate any great understanding of
the subject or sensitivity to the psychological and emotional problems suffered by a woman in Ms
W’s position.’
In addition the plaintiff is entitled to the benefits of a constitutional dispensation that
promotes rather than inhibits access to courts of law.
The nature of child sexual abuse and its effects on the victim
[8] The more common route in writing a judgm ent is to begin with the law and,
having identified the legal hurdles, to assess the evidence, determining whether the
facts proved enable the plaintiff to surm ount those obstacles. In this instance,
however, I intend to start by summarising the uncontested evidence about child abuse
and its effects so that th e reader comes to the law with an understanding of the
problem.
[9] Ms Fredman is a practising clinical psychologist who specializes in the area of
sexual abuse. She spent about 20 hours consulting with the plaintiff prior to giving
evidence at the trial and about the same length of time attending consultations
6
between the plaintiff and the defendant’s experts. She compiled a report in which she
set out the factual information derived during the consultations, described the
development of post-traumatic stress disord er and so-called traumagenic states in
child-abuse survivors, identified the characteristics of such a condition and matched it
to the idiosyncrasies displayed by the plaintiff as a child and in her adult years up to
the time that she instituted action agains t the defendant. She recognised that the
plaintiff had always been aware of the fact that the defendant had abused her between
the ages of 6 and fifteen years. It was her opinion that the plaintiff’s realisation that
the defendant was responsible for the a buse was a gradual process which probably
commenced in late 1996 and that she could not be said to have acquired knowledge
that it was not she but the defendant who was responsible until some time in 1997. Ms
Fredman referred to published learning on the subject of child abuse and its effects on
survivors and particularly to ‘The Trau matic Impact of Child Sexual Abuse: A
Conceptualization’, by David Finkelhor and Angela Browne of the Family Violence
Research Programme of the University of New Hampshire, Durham, published in the
American Journal of Orthopsychiatry in October 1985, and to Trauma and Recovery,
The aftermath of violence - from domestic abuse to political terror , (Ch 5, ‘Child
Abuse’), by Judith Lewis Herman, New York, 1992.
[10] Finkelhor and Browne analyze sexual abuse in terms of four trauma-inducing
factors (‘traumagenic dynamics’) – traumatic sexualization, betrayal, powerlessness
and stigmatization. All of these distort a child’s cognitive and emotional relationship
with the world. Traumatic sexualization is a process in which a child’s sexuality is
7
developed and shaped inappropriately and dysfunctionally at an interpersonal level.
Betrayal involves the discovery by a child that someone on whom he or she is vitally
dependent has caused the child harm. It can be experienced at the hands of an abuser
or a family member who is unable or unwilling to protect or believe the child or who
has a changed attitude to the child after disclosure of the abuse. Powerlessness
develops through the repeated contravention of a child’s will, desires and sense of
efficacy. It is reinforced when children see their attempts to halt the abuse frustrated
and is increased by fear and an inability either to make adults understand or believe
what is happening or to realize how conditions of dependency have trapped them in
the situation. Stigmatization refers to the negative connotations – badness, shame,
guilt – that are communicated to the child and become incorporated into the child’s
self-image:
‘These negative meanings are communicated in many ways. They can come directly from the
abuser, who may blame the victim for the activity, demean the victim, or furtively convey a sense of
shame about the behaviour. Pressure for secrecy from the offender can also convey powerful
messages of shame and guilt. But stigmatization is also reinforced by attitudes that the victim infers
or hears from other persons in the family or community. Stigmatization may thus grow out of the
child’s prior knowledge or sense that the activity is considered deviant and taboo, and it is certainly
reinforced if, after disclosure, people react with shock or hysteria, or blame the child for what has
transpired. Children may be additionally stigma tized by people in their environment who now
impute other negative characteristics to the victim (loose morals, “spoiled goods”) as a result of the
molestation.’
Further the authors report:
8
‘The sexual problems of adult victims of sexual abuse have been among the most researched and
best established effects. Clinicians have reported that victimized clients often have an aversion to
sex, flashbacks to the molestation experience, difficulty with arousal and orgasm, and vaginismus,
as well as negative attitudes towards their sexuality and their bodies.’
[11] Finkelhor and Browne make the follo wing remarks about the process of
stigmatization which are pertinent to this case:
‘Other effects of sexual abuse seem naturally grouped in relation to the dynamic of stigmatization.
Child victims often feel isolated, and may gravitate to various stigmatized levels of society. Thus
they may get involved in drug or alcohol abuse, in criminal activity, or in prostitution. The effects
of stigmatization may also reach extremes in forms of self-destructive behaviour and suicide
attempts.
The psychological impact of these problems has a number of related components. Many
sexual abuse victims experience considerable guilt and shame as a result of their abuse. The guilt
and shame seem logically associated with the dynamic of stigmatization, since they are a response
to being blamed and encountering negative reactions from others regarding the abuse. Low self-
esteem is another part of the pattern, as the vi ctim concludes from the negative attitudes toward
abuse victims that they are “spoiled merchandise”. Stigmatization also results in a sense of being
different based on the (incorrect) belief that no one else has had such an experience and that others
would reject a person who had.’
[12] Dr Herman is particularly enlighten ing on the aspects of self-knowledge,
insight into responsibility for the acts of abuse and disclosure:
‘The child victim prefers to believe that the abuse did not occur. In the service of this wish, she tries
to keep the abuse a secret from herself . . . Not all abused children have the ability to alter reality
through dissociation. And even those who do have this ability cannot rely upon it all the time. When
it is impossible to avoid the reality of abuse, the child must construct some system of meaning that
9
justifies it. Inevitably the child concludes that her innate badness is the cause. The child seizes
upon this explanation early and clings to it tenaci ously, for it enables her to preserve a sense of
meaning, hope and power. . .
‘Self-blame is congruent with normal forms of thought in early childhood in which the self is taken
as the reference point for all events. It is congruent with the thought processes of traumatized people
of all ages, who search for faults in their own behaviour in an effort to make sense out of what has
happened to them. In the environment of chroni c abuse, however, neither time nor experience
provide any corrective for this tendency towards self-blame; rather it is continually reinforced. . .
‘By developing a contaminated, stigmatized identity, the child victim takes the evil of the abuser
into herself and thereby preserves her primary attachments to her parents. Because the inner sense
of badness preserves a relationship, it is not read ily given up even after the abuse has stopped;
rather it becomes a stable part of the child’s personality structure. Protective workers who intervene
in discovered cases of abuse routinely assure child victims that they are not at fault. Just as routinely
the children refuse to be absolved of blame. Similarly, adult survivors who have escaped from the
abusive situation continue to view themselves with contempt and to take upon themselves the shame
and guilt of their abusers. The profound sense of inner badness becomes the core around which the
abused child’s identity is formed, and persists into adult life. . .
‘As survivors attempt to negotiate adult relationships, the psychological defences formed in
childhood become increasingly maladaptive. D ouble-think and a double self are ingenious
childhood adaptations to a familial climate of coercive control, but they are worse than useless in a
climate of freedom and adult responsibility. They prevent the development of mutual intimate
relationships or an integrated identity. As the surv ivor struggles with the tasks of adult life, the
legacy of her childhood becomes increasingly burdensome. Eventually, often in the third or fourth
decade of life, the defensive structure may begin to break down. Often the precipitant is a change in
the equilibrium of close relationships: the failure of a marriage, the birth of a child, the illness or
10
death of a parent. The façade can hold no longe r, and the underlying fragmentation becomes
manifest. When and if a breakdown occurs it can do so in symptomatic forms that mimic virtually
every category of psychiatric disorder.’
[13] Taking cognizance of the views expressed by these writers, supplemented by
her own professional experience, Ms Fredman testified that only when a survivor of
child sexual abuse is capable of realising that he or she is not responsible for his or
her damaged condition, can it be expected th at steps will be initiated to redress the
injustice done. Before that, deeply-embedded psychological restraints must be
overcome.
[14] In short, the expert evidence demonstrates that
(1) chronic child abuse is sui generis in the sequelae that flow from it;
(2) distancing of the victim from r eality and transference of responsibility
by the victim on to himself or herself are known psychological
consequences;
(3) in the absence of some cathartic experience, such consequences can and
often do persist into middle age despite the cessation of the abuse during
childhood.
[15] The questions that call for an answer in this appeal are:
(a) Does the applicable prescripti on statute accommodate a victim who
manifests such sequelae, by either staying or suspending the running of
prescription, if the victim is prevented or seriously inhibited by reason
of his or her psychological condition from instituting action?
11
(b) If so, how does it provide the accommodation?
(c) Does the evidence bring the plainti ff within the scope of the protection?
The appropriate legislation
[16] The case was argued in the court a quo on the assumption that the 1969 Act,
which came into operation on 1 December 1970, was of application to the plaintiff’s
claim. Section 16(2)( a)of that Act provides that ‘the provisions of any law which
immediately before the commencement of th is Act applied to the prescription of a
debt which arose before such commencemen t . . . shall continue to apply to the
prescription of the debt in question in all respects as if this Act had not come into
operation’. The court a quo held that the debts that are now in issue arose before that
date and accordingly the 1943 Act determines whether they have prescribed. That
finding is clearly correct. The question before us is whether prescription began to run
as provided for in s 5(1)(c) of the 1943 Act in respect of those debts more than three
years before the action was instituted.
The interpretation of s 5(1)(c) of Act 18 of 1943
[17] The section provides that:
‘(1) Extinctive prescription shall begin to run –
. . . (c) in respect of an action for damages, other than for defamation, from the date when the wrong
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 reasona bly have been expected to have knowledge of
such wrong, whichever is the earlier date;’.
[18] I have referred in paragraph [3] to the interpretation which Nel J placed on ‘the
12
date when the wrong . . . was first brought to the knowledge of the creditor’. He
relied on the judgments in Oslo Land Co. Ltd v The Union Government 1938 AD 584
and Administrator of the Transvaal v Crocodile Valley Citrus Estates (Pty) Ltd 1942
TPD 109. In the first-mentioned case it was held (at 592) that in negligence cases the
cause of action arises when an unlawful act is committed and damage caused, and as
soon as damage has occurred all the damage flowing from the unlawful act can be
recovered, including prospective damage and depreciation in market value; further
losses do not give rise to further causes of action. The Administrator of the Transvaal
case is to similar effect (at 111): ‘a claim for damages does not arise when the person
who says he was damaged discovers the damage [but] . . . at the time of the tortious
act’. Both these cases were decided on the premise that a wrongful act results in some
damage (however minimal) that the creditor is capable of ascertaining. That is the
usual case. It was unnecessary to consid er the effect on a creditor who, although
aware of the facts, did not or could not, at the date of the delict, through no fault of
his or her own, appreciate where respons ibility for the act lies and thus has no
appreciation that he or she is entitled to civil redress against the person who inflicted
the harm. That is an unusual case. But it is one which arises squarely in claims based
on the sexual abuse of children where the victim is a ‘creditor’ under the 1943 Act.
Although unnecessary to decide for the determination of this case, the same appears
to hold true for s 12 of the 1969 Act which provides:
‘(3) 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
13
such knowledge if he could have acquired it by exercising reasonable care.’
The knowledge which is required is the mini mum necessary to enable a creditor to
institute action: Nedcor Bank Bpk v Regering van die Republiek van Suid-Afrika 2001
(1) SA 987 (SCA) at para 13. The ascribing of blame to a particular defendant is a
necessary element of any claim in delict.
[19] Prescription penalizes unreasonable in action not inability to act. Where,
therefore, the statute speaks of prescription beginning to run when a wrong is ‘first
brought to the knowledge of the creditor’, it presupposes a creditor who is capable of
appreciating that a wrong has been done to him or her by another: cf Wulfes v
Commercial Union Assurance Co of SA Ltd 1969 (2) SA 31 (N) at 37A and SA
Mutual Fire and General Insurance Co Ltd v Mapipa 1973 (3) SA 603 (E) at 608F-
609D. The existence of s 7 (which suspends prescription in five specific instances)
does not detract from this conclusion. In the first place suspension can only take place
if the running of prescription has commenced. Perhaps more important is the fact that
there exists a category of creditor (the person abused as a child who has reached
adulthood before commencing the action) who does not necessarily fall into any of
the categories of suspension and who should be accommodated within the legislative
framework if that can be achieved wit hout doing violence to the language. Such a
person is not non compos mentis. Nor is he or she incapable of rational thought. What
the evidence shows is that the process of reasoning and the development of insight
have been distorted in the child’s psyche when it comes to an appreciation of where
responsibility lies. (I assume in this regard that the legislature used the expression
14
‘during the disability of the creditor’ in s 7(1)(b) in a sense consistent with the
definition of ‘person under disability’ in s 1. See Wulfes v Commercial Union
Assurance Co of SA Ltd supra at 38B-D, sed contra South African Mutual Fire and
General Insurance Co Ltd v Mapipa supra at 607C.)
The plaintiff’s history
[20] The plaintiff was born in 1952. The defendant, her uncle by marriage, is about
36 years older than she is. The plaintiff’s immediate family seems to have lived in
relatively modest circumstances. The defendant, an apparently successful
businessman, played an influential role in the family as a figure of status and respect.
He and his wife were childless but they frequently had the appellant and her siblings
to stay in their home.
[21] The plaintiff’s brother, Jaco, suffered from polio. In November 1958 he was
hospitalized. His parents, who were desirous of giving him their undivided attention,
sent the plaintiff to stay with her matern al aunt, the defendant’s wife. She was six.
(The plaintiff was able to pinpoint the date in evidence because she had kept a letter
her brother wrote to her from hospital.)
[22] One night the defendant came to her bedroom, ostensibly to say goodnight to
her. He touched her private parts. Thus began a long series of assaults on the child
that before long progressed to anal penetr ation and, by the age of eight, forcible
sexual intercourse. The defenda nt mystified these dark encounters as ‘a secret
between us’, warned her not to talk about them and threatened her in various ways
particularly vexing to a child. By contrast, during the day the defendant treated the
15
plaintiff with outward kindness, made he r feel special, bought her treats that her
parents could not afford and bribed her with presents such as postage stamps and
geological specimens for her collections.
[23] The plaintiff begged not to be sent to the defendant’s home. For her pains her
mother called her ‘’n regte klein blêddie stoutgat’1 and sent her anyway. The abuse
continued. The plaintiff tried to relieve the trauma she experienced during the assaults
by concentrating her thoughts on pleasant visions of the future or by working her
mind into a dissociative state in which she viewed all that was happening to her from
outside of herself.
[24] What could not be concealed was the state of her underclothes. According to
the plaintiff her mother complained that she already had enough trouble with Jaco and
‘nou is ek nog ‘n vuilgat ook’
2. That was also sufficient to attract a beating on various
occasions. The plaintiff began to wet her bed. She tried to explain to her mother ‘oom
Maree doen dinge met my’3. Her mother reacted strongly: ‘Ek behoort my voor God
te skaam want hy is ‘n goeie mens vir ons almal’4. Another hiding followed. On other
occasions her mother would refer to her as ‘moedswillig’5 and ‘stout’6 and express the
wish that she had never been born. The culture of the plaintiff’s family was such that
sexual matters were not spoken of. In any event the plaintiff had great difficulty in
expressing herself. She attempted to tell her father. His response was ‘Maree is a very
1 ‘naughty brat’
2 ‘now I am a dirty tramp as well’
3 ‘uncle Maree is doing things to me’
4 ‘I should feel ashamed before God because he is good to us all’
5 ‘wanton’
6 ‘naughty’
16
good man and you must respect that’.
[25] The abuse continued. When the plaintiff was 8 or 9 her mother thought she had
begun to menstruate. The general practitioner whose advice she sought informed her
that the plaintiff was regularly engaging in sexual intercourse. Her mother called her
‘’n klein hoer’7. After that it seemed to the plaintiff that the beatings increased. On
one occasion her mother accused her of being ‘stout’6 with a boy who helped with
looking after Jaco.
[26] The plaintiff developed suicidal feelings and tendencies which persist to this
day. She was friendless and aggressi ve and suffered fro m sleeplessness and
nightmares. Indeed, she has needed sleeping tablets for most of her adult life. As a
child she masturbated compulsively.
[27] The plaintiff also tried to disclose the abuse to her cousin, Lynn Erwee, whose
comment was ‘Ag, hy speel met my ook’ 8. The plaintiff, although doubting that
‘play’ rightly described what was happening to her, found herself unable to pursue the
matter.
[28] While in primary school she also told her brother, who advised her to swear at
the defendant (‘vloek die donner’9). She followed his advice but ‘he kept on coming,
it didn’t stop, he laughed at me’.
[29] From about the age of 13 or 14 the plaintiff resorted to self-mutilation, hoping
thereby to distract her mind from the emotional agony brought on by recollection of
6 ‘naughty’
7 ‘a little whore’
8 ‘Oh, he plays with me too’
17
the abuse. She has returned to this practice from time to time throughout her life.
[30] The plaintiff had no sexual contact with anyone other than the defendant. When
9 ‘curse the wretch’
18
she was about fifteen she complained of nausea in the mornings. Her mother had
her admitted to hospital where her appendi x was removed. After the operation she
was discovered to be pregnant and an abortion was carried out. The nurse told her she
had been ‘very naughty’. Despite years of enforced sexual experience the plaintiff had
no knowledge of how conception took place.
[31] At that time the plaintiff was in standard 7 at school. She once again tried to
tell her father that the defendant was responsible but it seemed to the plaintiff that he
did not want to talk about it: ‘I don’t think he believed me’.
[32] Although the defendant never touched the plaintiff again after the abortion and
she ceased to stay over at his home, her life started to deteriorate. She lost interest in
trying to succeed and, for the first time, failed at school. Her parents moved her to a
new school. Having eventually progressed to standard 8, she failed that too. She
passed at the second attempt and then le ft. She obtained employment in various
menial positions but could not keep any job for long.
[33] By the age of 21 the plaintiff was drinking heavily (and persisted in so doing
until the year 2000). She had difficulty in getting on with others. About that age she
began her first relationship. There were about three further relationships before she
became the partner of Ms Potgieter. Despite some serious problems this association
has endured for twenty years. All her relationships have been marred by alcohol and
drug abuse and some degree of violence.
[34] Her sexual relations with her various partners have always been inhibited and
unsatisfying. Out of an unspoken fear of further abuse the plaintiff has made a
19
deliberate effort to minimize her femininity by cultivating a masculine appearance
in her physique and dress. She finds feminine odour repugnant and from her
childhood has felt a need constantly to wash her hands. She is still very afraid of the
dark.
[35] About 1980, for reasons not explained in evidence, the plaintiff studied for and
passed standards 9 and 10 and attended classes at P E Technikon where she qualified
as an architectural technician. She has since supported herself as a draughtswoman.
[36] During 1991 the plaintiff’s mother becam e seriously ill. The plaintiff was
brought once more into social contact with the defendant. When he spoke to her she
swore at him ‘dat dit bars’ 10. Her counsel asked her in evidence to describe the
substance of what she had said to him to which she responded, ‘Wat jy alles aan my
gedoen het, moenie nog met my praat nie, moet niks met my te doen hê nie, los my
net uit’11. What this exchange was said to have revealed became a key aspect in the
submissions of the defendant’s counsel during the appeal that the plaintiff was by
then, at least, fully cognizant of where responsibility for her childhood abuse lay. I
shall return to his submissions at an appropriate stage.
[37] At a certain point in the plaintiff’s relationship with Ms Potgieter, in the course
of an alcohol-induced argument about the plaintiff’s reluctance to engage in sexual
relations, the plaintiff retorted (in substance), ‘I wish [the defendant] had done things
to you, then you would understand how I feel’. She placed this conversation as having
10 ‘profusely’
11 ‘Because of all that you’ve done to me, you must n’t talk to me, you mustn’t have anything to do with
me, just leave me alone.’
20
occurred ‘’n paar jaar terug’12. It was also relied on by the defendant’s counsel as
evidence of the plaintiff’s awareness that his client was responsible for the troubles
that beset her.
[38] Towards the end of 1996 the appellant watched the Oprah Winfrey Show on
television. The subject was child sexual abuse. The hostess confessed that she was a
victim ‘and look where I am today’. According to the plaintiff such openness was a
revelation to her. As she put it, ‘I thought, Good grief, she can say it, she actually said
it. . . I couldn’t believe that a person is prepared to say that. Dis of daar – of dit
moontlik is om nie so bang te wees om dit te sê of sy is nie skaam nie. Sy was nie
skaam om dit te sê nie en dit het al vir my gevoel of miskien dit is nie so erg as wat –
as ‘n mens dit sê nie’
13. She told Ms Potgieter, ‘Possibly I can say what happened . . .I
don’t need to keep it inside me anymore because it’s finishing me off’. Potgieter said,
‘There must be something you can do about him’. ‘[I said] “I can’t. I don’t have
money and I’m alone.” I got very drunk. . . Ek kan nie nou gaan en gaan praat of doen
iets nie, ek gaan net as – weereens soos my ma as ‘n leuenaar uitgemaak word.14’
[39] Shortly thereafter the plaintiff caused a disturbance at the home of friends.
When she went to apologize, one of th em, Jay, a final year psychology student,
invited her to talk about things that were worrying her. That led the plaintiff to
disclose to Jay
12 ‘a few years ago’
13 ‘It’s as if – as if it’s possible not to be so scared to say that she is not ashamed. She was not
ashamed to say it and I felt that it is perhaps not so serious as that – if one says it.’
14 ‘I can’t go now and talk (about it) or do anything, I would be made out to be a liar just as my mother
did.’
21
some of her experiences at the hands of the defendant. Eventually, seeing that the
plaintiff was incapable of expressing herself or unwilling to do so, Jay suggested that
she write her story down and they would m eet again to talk things over. With
difficulty the plaintiff followed the sugges tion. She showed the statement to Ms
Potgieter. Far from alienating her as the plaintiff had feared, it had the effect of
drawing them closer together. The plaintiff was asked by her counsel ‘[On] the day
you gave her what you had written for her to read whose fault did you think it was,
what had happened between you and Mr Hoogenhout?’ To which she replied, ‘Mine’.
Asked by the court why, she answered, ‘I sometimes until today still feel I must have
done something wrong because why did he do these things to me? I don’t know why I
think that and then I blame him for my wretched life, but then again I – it is quite
confusing for me because I feel sorry for his wife, he did these things, it was painful
and sometimes I think couldn’t I have done something that it wouldn’t have happened
. . . Ek – miskien kon ek gesê het ek wil nie naweke gaan nie. Dit maal vandag nog in
my kop. Miskien as ek vir my ma presies in detail vertel het. . . Toe Rita [Ms
Potgieter] dit vir my gesê het sy is ba ie lief vir my het my antwoord gekom dat
miskien is ek nie skuldig daaraan nie, miskien het ek nie – ek het nie skuld hieraan
nie.’ Court
: Kan ek dit anders stel, vandag as u hierso in die hof sit, dink u dat dit nog
steeds u skuld is of nie? – ‘Nie meer nie.’ Court: Wanneer het u houding verander? –
‘1997’15.
15 ‘I – maybe I could have said I won’t go over the weekends. It is still going round in my head. Maybe if
I had told my mother in detail . . . When Rita told me she loves me very much I answered that perhaps I
wasn’t guilty, perhaps I didn’t – I’m not at fault’. Court
: ‘Let me put it another way, as you sit here in court
22
[40] Later the plaintiff’s brother Jaco phoned her one evening threatening suicide.
He told her that just as the defendant had behaved with her so had the defendant
abused him. The plaintiff was paradoxically encouraged by this disclosure: she no
longer felt on her own, there was someone she could tell what had happened and
people would not be able to say that she lied about things the respondent had done.
The reconciliation between the expert evidence and the facts
[41] Where prescription is raised as a defence it is the defendant who bears the onus
of establishing as a matter of probability that prescription commenced to run and had
expired before the action was instituted, and he or she is not relieved of that burden
only because the material facts might be within the exclusive knowledge of the
plaintiff (Gericke v Sack 1978 (1) SA 821 (A) at 827B-828A). It might be, in a case
like the present, in which th e plaintiff alleges that mere knowledge of the external
facts was not enough, that the plaintiff bears at least an evidential burden of placing
some material before the court that raises the issue. (That is not a question we are
called upon to decide). But in this cas e there is evidence that indicates prima facie
that the plaintiff was not aware until recently that it was not she who was the cause of,
or
who bore responsibility for, what occurred but rather that the responsibility was that
of the defendant. There was no evidence to controvert it in any substantial way. In my
view, the court should have found that the defendant failed to establish as a matter of
probability that prescription commenced to run before 1997.
today do you still think you are to blame or not?’ – Not any more.’ – Court: When did you change your mind?’
23
– ‘1997’.
24
[42] The evidence that the plaintiff gave about her voyage of self-discovery is not
fairly described as her ‘ ipse dixit’ (as the learned judge di d) since there is ample
corroboration to be found in a comparison be tween the experiences of the plaintiff
and the professionally described sequelae of an abuse victim with a history like that
of the plaintiff. What is to be set against her evidence? Counsel referred to the several
attempts made by the plaintiff as a child to expose the defendant. He pointed out that
by the age of 21 the plaintiff had left home and was making he r own way in the
world. Whatever threat the defendant had posed was long gone and his influence
dissipated. It was unlikely, he submitted, that the plaintiff had remained in ignorance
of the facts for nearly thirty years. He relied on the incident during her mother’s
illness as leaving no doubt that she not only blamed the defendant for wrecking her
life but was also willing to say so openly. Finally he pointed to the plaintiff’s bitter
comment to Ms Potgieter that she wished the defendant had done things to her so that
she could understand the plaintiff’s feelings. (The evidence as to when this incident
took place is unclear but I will assume that it may assist the defendant to discharge
the onus.)
[43] In the accumulation of such evidence, counsel submitted, the likelihood was to
be discovered that the plaintiff was in truth aware of the defendant’s fault and blamed
him for the abuse and its disastrous cons equences. He did not suggest that the
plaintiff consciously concealed the fact that she possessed insight long before 1997.
Such a submission would require a cred ibility finding against her which is not
justified by a reading of the record.
25
[44] In such circumstances the room for the inference that counsel would have us
draw must be very limited. The plaintiff obviously knew at all material times that the
defendant was the physical agent of the abuse. Her expert witness expressly
disavowed any possibility of suppression of her memory of the events. That of course
does not mean that in adult life she was ab le to confront them willingly or with
adequate comprehension. Nor does it prove that she knew or accepted that
responsibility for the abuse lay with the defendant. The incidents in adulthood which
counsel has cited are consistent with the plaintiff’s knowledge that the defendant had
abused her, but they were visceral reactions falling short of rational appreciation that
he rather than herself was the culpable pa rty. It is more likely that the plaintiff
developed insight, and with it the meaningful knowledge of the wrong that sets the
prescriptive process in motion, only when th e progressive course of self-discovery
finally removed the blindfold she had worn since the malign influences which I have
described took over her psyche. On the pr obabilities that did not occur until some
time in 1997. The defendant’s counsel did not submit, correctly given the facts, that
(to use the language of s 5(1)(c)) the plaintiff might reasonably have been expected to
have had knowledge of the wrong before she acquired actual knowledge.
[45] In the result the trial judge should have dismissed the special plea of
prescription and proceeded to a consideration of the merits. It accordingly becomes
unnecessary to consider the submissions of the plaintiff’s counsel that the plaintiff
was disabled (within the meaning of s 7(1)( b) of the 1943 Act) from pursuing her
claim until 1997 or was immune to the running of prescription because of common
26
law protection afforded to those ignorant of their rights.
[46] The following order is made:
1. The application for leave to appeal is granted.
2. The appeal succeeds with costs, in cluding the costs of the application for
leave to appeal.
3. The order of the court a quo is set aside and replaced with an order
dismissing the defendant’s special plea of prescription.
4. The matter is remitted to the trial court to consider the remaining issues.
___________________
J A HEHER
JUDGE OF APPEAL
MPATI DP )Concur
CAMERON JA )
NUGENT JA )
VAN HEERDEN JA )