Bothma v Els and Others (CCT 21/09) [2009] ZACC 27; 2010 (2) SA 622 (CC) ; 2010 (1) SACR 184 (CC) ; 2010 (1) BCLR 1 (CC) (8 October 2009)

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Bothma v Els and Others (CCT 21/09) [2009] ZACC 27; 2010 (2) SA 622 (CC) ; 2010 (1) SACR 184 (CC) ; 2010 (1) BCLR 1 (CC) (8 October 2009)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
21/09
[2009] ZACC 27
In the matter
between:
PTRUE
BOTHMA Applicant
and
PETRUS
ARNOLDUS
ELS First Respondent
C.
BEZUIDENHOUT NO Second Respondent
CLERK OF
THE COURT, KIMBERLEY NO Third Respondent
MINISTER
FOR JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT Fourth Respondent
Heard
on : 13 August 2009
Decided
on : 8 October 2009
JUDGMENT
SACHS J:
In 2007, the applicant,
Mrs Bothma, instituted a private prosecution charging that
thirty-nine years before, when she had
been a thirteen year old
schoolgirl, the first respondent, Mr Els, a wealthy family
friend much older than herself, had
taken her by car to his farm
and raped her. She alleged further that a similar pattern of
sexual abuse had continued for more
than two years. Mr Els
vigorously denied the charge. He applied to the Northern Cape High
Court in Kimberley (the High
Court) in March this year for an order
permanently staying the private prosecution. The High Court issued
the stay of prosecution,
holding that the unreasonable delay, for
which it regarded Mrs Bothma as being fully culpable, would
result in irreparable
trial prejudice to Mr Els and deny him
his constitutional right to a fair trial.
Mrs Bothma applied
to this Court for leave to appeal to have this decision set aside.
She contends that the High Court
paid insufficient attention to the
specific nature of the alleged offence and the manner in which she
claims it contributed
towards the subsequent delay. She submits
that the issues should have been left for the trial court to
determine, and that
any prejudice that Mr Els might suffer
because of the delay would not have been insurmountable.
Accordingly, it could
not be said in advance that the trial court
would be unable to ensure that Mr Els had a fair trial.
I have considered the
issues and come to the conclusion that despite her extremely long
delay in reporting the matter, the High
Court was wrong to stay
permanently the prosecution she has instituted.
History of the
litigation
On
26 January 2006, Mr Els received a letter from Mrs Bothma’s
attorneys informing him of her intention to institute
criminal
charges for rapes that had occurred between 1968 and 1970. A month
later Mrs Bothma laid a criminal charge of
rape against Mr Els
at Galeshewe police station in Kimberley. She was fifty-one years
old and he seventy-four. In June
2007 she also instituted a civil
claim against him in the High Court. This matter is still
pending.
1
The Director of Public
Prosecutions (DPP) initially declined to prosecute but was
persuaded by Mrs Bothma to reconsider
the matter. The case
was accordingly revived by the Kimberley office of the South
African Police Service, and on 18 July 2007
a statement was taken
from Mr Els. He acknowledged that he had known and had been
friendly with the family and that they
had on occasion visited his
farm, but emphatically denied that he had ever raped her or
sexually molested her or had sexual
intercourse with her. He also
claimed that she had recently visited him and later on had asked
him by telephone for a loan
of R300 000, which request he had
refused. After receiving this information, the DPP decided not to
prosecute and on
27 September 2007, at the request of
Mrs Bothma, issued a certificate
nolle prosequi
(refusal
to prosecute).
2
On 21 December 2007,
Mrs Bothma initiated a private prosecution in the Magistrates’
Court in Kimberley. This was
done in terms of section 7 of the
Criminal Procedure Act (the CPA),
3
which provides that in any case in which a DPP declines to
prosecute an alleged offence, any private person who proves some

substantial and peculiar interest in the issue arising out of some
injury which he or she individually suffered, may institute
and
conduct a prosecution in respect of such offence in any court
competent to try that offence.
Mr Els appeared in
the Regional Court in Kimberley on 5 February 2008, when the matter
was postponed to 12 March 2008 and
then remanded for trial on 17
June 2008. Before it was heard, however, Mr Els brought an
application in the High Court
seeking a permanent stay of
prosecution.
4
As a result, the trial was twice postponed, first pending the
outcome of the High Court application, and then pending the
outcome
of this appeal. It is now on the Regional Court roll for 29
October 2009.
The substance of
Mrs Bothma’s complaint has been that from March 1968 until
December 1970, starting when she was thirteen
and ending when she
was sixteen, she had been subjected to repeated incidents of rape
by Mr Els. The first incident,
she alleges, occurred on a
weekend in March 1968, when she was thirteen years old. She
describes herself at that time as having
been dynamic, intelligent
and a diligent scholar, a prefect at her school who enjoyed active
participation in school life.
Mr Els was a prominent businessman
in the community and a wealthy family friend, twenty-three years
older than herself. He
had befriended her parents and, when
visiting their home that Saturday afternoon, had invited her to his
farm, Carter’s Ridge,
for the evening. During the evening Mr Els
had contacted her parents and they had agreed that she could stay
overnight.
That night, Mrs Bothma alleges, Mr Els raped her.
Thereafter, Mr Els
would frequently arrange with her parents for her to come and visit
him at his farm either during the
school week or over a weekend.
Her siblings confirm that Mr Els arrived regularly in
expensive cars to pick her up from
their home. While Mrs Bothma
cannot recall the exact dates, she states that she was raped by Mr
Els each and every time she
visited his farm, from the weekend in
March 1968 until the end of 1970. She kept silent about the rapes,
telling no one.
She explains that she believed Mr Els when he
told her that her parents would lose their jobs should anyone find
out about
the rapes. She internalised the shame of the events,
feeling guilt, betrayal and powerlessness. She feared
stigmatisation
should she confide in anyone. During this period,
her schoolwork suffered, she fought a lot with her mother, and
became withdrawn.
As a result, she failed standard six and, after
eventually managing to pass the year, had no further formal
education.
On 26 December 1970, at
the age of sixteen, she ended contact with Mr Els by telling
him over the telephone that she no
longer wanted to see him. She
acknowledged, and it was common cause, that after that time they
had little, if any, contact.
In 1975, she married her
first husband Mr Bothma, with whom she had a son. Mrs Bothma
told her husband about the
rapes after he discovered that her hymen
was torn. His reaction to this information was to avoid sexual
contact with her and
to withdraw emotionally. The marriage ended
after seven years. She married twice again, first in 1983 and then
in 2000.
5
Fearing a similar reaction to that of Mr Bothma, she decided
in both cases not to say anything about the rapes, but both

marriages ended in divorce, partly, she claims, because of the
sexual abuse she had suffered as a child. In order to support

herself and her son, she was involved in various entrepreneurial
business ventures over the years, none of which appear to
have
provided any substantial or sustainable income. She paints a
picture of a diminished person “haunted by feelings of
guilt”.
During all these years, the only person to whom she had spoken
about the rapes was Mr Bothma.
In 2002, Mrs Bothma
was convicted of fraud and sentenced to four years imprisonment.
While at the Pretoria Central Correctional
Centre she attended a
life-skills course and counselling. She explains that during 2004,
while under counselling, she was
able to recognise that she was the
victim of child rape, and that the responsibility for the sexual
abuse lay not with her
but solely with the man who had abused her,
Mr Els. It was the counselling, she claims, that enabled her
to develop a
meaningful understanding of the wrong that had been
done to her and to appreciate the common thread that underlay all
the difficulties
in her adult life.
After she left prison,
some months passed during which she engaged in the process of
divorcing her third husband, before she
felt free to seek legal
advice. In 2005 she approached the Department of Public
Prosecutions, and later the Legal Aid Board
in Pretoria, with a
view to taking criminal action against Mr Els. She was later
advised of the possibility of instituting
a private prosecution.
In his response to these
allegations, Mr Els does not dispute that he had been a friend
of her family but states that he
only came into contact with them
in late 1969. In support of his emphatic denial of ever having
sexually abused her in any
way, he avers that his farm had in fact
been undergoing renovation during the period when the rapes had
allegedly taken place.
Also, he maintains that he had only moved
into the farmhouse in October 1969. Further, he states that at the
time he had
not owned the particular type of motor vehicles
referred to by Mrs Bothma, and that he had been travelling
extensively
during that period.
Turning to more recent
events, he alleges that in early 2006, Mrs Bothma visited him
in Kimberley. He regarded the visit
as a social call, and they
discussed some of her personal problems. At no time on that
occasion did she mention the allegations
of rape. At some stage,
6
the details of which are obscure on the record, she allegedly
requested a loan from him of R300 000, which he turned down.

Mrs Bothma denies these events in their entirety.
Several months later
Mr Els received an attorney’s letter stating that
Ptrue Stals would be instituting criminal
charges against him
for rape. He did not recognise the name and took no heed of the
letter. In October 2006, he received
another attorney’s letter.
This time he made some enquires and discovered that Ptrue Stals
was in fact Ptrue Bothma,
whom he had originally known as
Petro du Plessis.
7
He consulted his attorney and replied to the letter, denying the
allegations and stating that Mrs Bothma was free to
take civil
or criminal action should she so wish.
Mr Els submitted
that the long delay would inevitably cause him severe trial
prejudice. He stated that he was unable to
give full instructions
to his legal representatives because it was impossible for him to
find documentary proof or records
of his precise whereabouts over
the alleged periods, and, in particular, in March 1968. He
explained that his brother and
sister-in-law, who could have
testified as to the time periods of the renovations on the
farmhouse, had both passed away.
The same applied to his domestic
worker who could have testified as to whether or not the young
Mrs Bothma had stayed
with him in the farmhouse. In addition,
he no longer had the records relating to his ownership of various
motor vehicles at
that time.
In the High Court
After considering the
affidavits and hearing argument, the High Court granted the
permanent stay of
prosecution as requested. In doing so, it
acknowledged that the stay was a drastic remedy, which would only
be appropriate
if the delay caused irreparable prejudice to the
accused.
8
The High Court then went on to apply the balancing test referred
to in
Sanderson v Attorney-General, Eastern Cape
9
to determine whether the delay was unreasonable, considering the
following factors:
the
length of delay; the reasons advanced by the prosecution for the
delay; waiver of the right to a speedy trial by the accused;
the
prejudice to the accused; and generally, the interests of justice.
10
The
High Court stated that Mrs Bothma’s explanation for the
delay, “i.e. that she had been haunted by feelings of guilt
until
2002 about what had happened to her as a teenager” was “rather
unpersuasive” and “characterised by a paucity
of detail” due
to the lack of specific dates furnished.
11
It then went on to hold that—
“
full
culpability can be ascribed to [Mrs Bothma] for the enormous delay
in this case. There has not been any suggestion of
any other
extraneous factors which had contributed to the delay, nor has it
been suggested that [Mr Els] had done anything
to contribute to
it.”
12
Dealing
with trial prejudice to Mr Els, the High Court stated:
“
[He]
has referred to the fact that he could not have committed the rape
offences in 1968 at his present residence, as [Mrs Bothma]
alleges,
since he was not occupying that residence at the time. He also
alluded to the fact that both his brother and his
sister-in-law . .
. were now deceased. They could have attested to the fact that he
had not been staying there . . . He
furthermore alludes to the
fact that his erstwhile domestic assistant, who would have been
able to attest to the fact that
[he] did not rape [Mrs Bothma as a
child] over the weekends . . . is also now deceased. . . .
Similarly, the lack of access
to motor vehicle records dating back
40 years, to show that he did not possess a Mercedes or an E-type
Jaguar at the time,
as alleged by [Mrs Bothma], may also prejudice
[him] in his trial. . . . In addition to those aspects there is of
course the
very real likelihood of fading memory, not only of [Mr
Els], but also of any witnesses who may still be alive.”
13
The High Court finally
held that, although it was “mindful that this decision
effectively shuts the doors of the courts as
regards criminal
prosecution, to [Mrs Bothma]” and “further cognisant of
the fact that the true effect of the delay
on the outcome of the
case will never be determined, since it could appropriately only be
determined at the trial,” nevertheless
this was an exceptional
case where a permanent stay of prosecution should be ordered
because the “evidence . . . overwhelmingly
demonstrates that
[Mr Els] would suffer irreparable trial-related prejudice due
to the delay and that he would therefore
not receive a fair
trial.”
14
Submissions in this
Court
Counsel for Mrs Bothma
argued that to bar a prosecution before it began was to foreclose
the opportunity to ascertain the real
effect of the delay on the
outcome of the case. When determining whether the delay was
unreasonable the Court should go beyond
the factors mentioned in
Sanderson
15
and look at:
the specific character
of the offence;
its impact on the
victim;
the gravity of child
rape; and
the social policy that
underpins the special need to prosecute the crime.
Counsel
argued that rape is a humiliating, degrading and brutal invasion of
the privacy and dignity of the person of the victim.
He quoted
from judgments of the Supreme Court of Appeal where it was accepted
that rape had the inherent effect of rendering
child victims unable
to report the crime, sometimes for several decades.
16
By ascribing “full culpability” for the delay to Mrs Bothma,
the High Court had disregarded the magnitude of this
type of
offence. In view of the specific character of the offence it could
not be said that the delay in bringing the prosecution
was
unreasonable.
Counsel conceded that
some amount of prejudice would be caused by the delay in bringing
the prosecution after forty years.
Counsel submitted however that
the fading of memory over time, and the fact that some witnesses
had passed away, would constitute
prejudice that could apply to any
trial and could be as harmful to the prosecutor as to the accused.
Issues of fact, like
memory loss, were to be decided with reference
to oral testimony given in court, which should be weighed and
evaluated in the
light of all the evidence collectively. Actual
prejudice had to be proved, not speculative prejudice. The
controlling principle
to ensure fairness at the trial is the
presumption of innocence. Mr Els had failed to establish that
the prejudice that
he would suffer would be irreparable, and the
stay of prosecution should be set aside.
In response, counsel for
Mr Els submitted that Mrs Bothma’s explanation as to
why she could not report the incident
earlier did not “hold
water”. The control she claimed Mr Els had exerted over her
was contradicted by her own evidence.
On her own version, she had
at the age of sixteen told Mr Els that she did not want to see
him again, and at this stage
therefore had already possessed the
power to stop the sexual abuse from recurring. Mr Els was not
an authority figure
such as a parent, and in any event, whatever
authority he might have exerted, would have ended once the contact
with her had
ceased. They had in fact lived miles apart for
several decades. In the circumstances, Mrs Bothma should have
been expected
to disclose the conduct within a reasonable time
after the relationship had ceased.
Counsel went on to urge
that the fundamental rights of Mr Els that were at stake were
the right to be presumed innocent
until proven guilty, the right to
adduce evidence and to challenge prosecution evidence, and the
right to a speedy trial.
The real question, counsel argued, was
whether it would be fair to put Mr Els on trial when it was
common cause that most
of the material witnesses he wished to rely
upon had died, and that the documentation to corroborate his
defence was unavailable.
The decades that had elapsed had forced
Mr Els into a position where he was unable to adduce evidence
and would not be
in a position to challenge the version of the
complainant. Counsel contended that the dearth of evidence would
inevitably
render the trial unfair, and created a high risk that an
innocent man nearly eighty years old would find himself behind
bars.
Leave to appeal
I
now proceed to discuss the constitutional setting in which the
application for leave to appeal must be considered. Before
doing
so, I should mention that the matter clearly raises constitutional
issues of some complexity, and that it is manifestly
in the
interests of justice that the finality of the stay of proceedings
be subjected to constitutional scrutiny.
17
Furthermore, the Supreme Court of Appeal has a well-developed
approach towards matters of this kind.
18
Referring the case to that Court would involve yet further delay
in relation to issues of deep emotional concern, and pile
up the
costs. It is accordingly in the interests of justice that the
matter come directly to this Court, and that leave to
appeal should
be granted.
Is Mr Els protected by
section 35(3) of the Bill of Rights?
Section 35(3)(d) of the
Constitution provides that:
“
Every
accused person has the right to a fair trial, which includes the
right—
. . . .
(d) to have their trial
begin and conclude without unreasonable delay”.
This is a private
prosecution. Mr Els has reserved his right, should the
private prosecution proceed, to challenge the
constitutional
validity of section 7 of the CPA, under which Mrs Bothma has
launched her prosecution. We do not reach
that issue in these
proceedings. What is clear is that section 35(3) entrenches the
right to a fair trial for all accused
persons. The obligations
imposed by this section bind courts to ensure that criminal trials
conducted before them are fair.
Without now determining the
validity of section 7 of the CPA, it is therefore clear that
Mr Els, a person who stands
accused of rape, is protected by
the broad fair trial requirements of section 35(3).
Delay in bringing
proceedings
It will be noted that
section 35(3)(d) and a companion section dealing with the right to
adduce and challenge evidence,
19
grant protection only to accused persons. Mr Els was not on
any understanding of these provisions an accused person between

1968 and the initiation of Mrs Bothma’s prosecution. If the
definition of “accused person” were to be read narrowly,
then
Mr Els’s challenge based on delay could well have failed
immediately. The delay by Mrs Bothma between initiating
the
private prosecution and going ahead with the trial was relatively
short. Mr Els was only charged in December 2007.
He appeared
in court in February 2008. The matter was then postponed by
agreement for the application in the High Court to
be heard.
Having regard to these facts, any delay in beginning and concluding
the trial itself could not easily have been
regarded as so
unreasonable as to justify aborting the prosecution.
20
The
stay of prosecution in this matter, however, was based on a
thirty-seven year long
pre-trial
delay, covering a period
when Mr Els was not an accused person. This raises the
question of what protection, if any, the
Constitution gives in
relation to pre-trial delay.
21
Major pre-trial abuses by
the state are now firmly prohibited by the Constitution. It is no
accident that section 35 of the
Constitution, which deals with
arrested, detained and accused persons, is by far the longest
section in the Bill of Rights.
It sets out precise protections
against treating people in arbitrary ways after they have been
placed under arrest. One that
becomes operative as soon as someone
becomes an accused person is the right to have the trial begin and
conclude without unreasonable
delay.
Although section 35(3)
does not deal expressly with pre-trial delay, it must be construed
and understood in the light of the
value accorded to human dignity
and freedom in our Constitution.
22
Freedom is protected by section 12 of the Constitution. It
provides that everyone has the right to freedom and security of
the
person, and expressly includes both the right not to be deprived of
freedom arbitrarily or without just cause, and the
right not to be
detained without trial. It also provides that no one should be
tortured in any way or treated or punished
in a cruel, inhuman or
degrading way.
23
Section 35(3) also protects freedom in the context of the
application of criminal law. Sections 12 and 35 should accordingly

be viewed in seamless conjunction, providing carefully thought
through procedural protections designed to prevent a repetition
of
the grievous abuses of people’s rights and dignity experienced in
the past. As United States Supreme Court Justice Frankfurter

famously said, “[t]he history of liberty has largely been the
history of observance of procedural safeguards.”
24
The present case, of
course, does not raise any suggestion of state abuse. On the
contrary, the state refused to prosecute
Mr Els. He does not
suggest that he had a right to be put swiftly on trial.
25
Rather, his complaint is that the thirty-seven year long delay has
had such a deleterious effect on his capacity to present
a defence
that any trial to which he might be subjected could not be fair.
In other words, it is not so much the delay itself
that has
violated his rights, but the manner in which it has deprived him of
the possibility of being tried fairly; not its
length but its
effect.
The question before us,
then, is not whether his rights under section 35(3)(d) have been
violated – clearly they have not
been. It is whether in a
broader sense his right to a fair trial would be irreparably
violated as a consequence of the extreme
belatedness of the
prosecution. In this respect I believe that the High Court
correctly decided that the right to a fair trial
should not be
anchored exclusively in section 35(3)(d). As Kentridge AJ said in
S v Zuma
:
26
“
The
right to a fair trial conferred by [the fair trial provision of the
interim Constitution] is broader than the list of specific
rights
set out in [the paragraphs dealing with the rights of the accused].
It embraces a concept of substantive fairness which
is not to be
equated with what might have passed muster in our criminal courts
before the Constitution came into force.”
In this context, then,
the delay in the present matter must be evaluated not as the
foundation of a right to be tried without
unreasonable delay, but
as an element in determining whether, in all the circumstances, the
delay would inevitably and irremediably
taint the overall
substantive fairness of the trial if it were to commence.
Balancing test
As
mentioned above,
27
Sanderson
deals with the consequences of delay after a
person has become an accused, and not with the effects of pre-trial
delay.
28
Nevertheless, the balancing process it posits is the basis for
deciding whether a stay should be granted as a result of trial

prejudice flowing also from pre-trial delay. In
Sanderson
,
this Court held that the critical question was how to determine
whether a particular lapse of time was reasonable.
29
The Court endorsed what it referred to as the “seminal answer”
in the United States case of
Barker v Wingo
,
30
holding there was a balancing test in which the conduct of both the
prosecution and the accused were weighed and the following

considerations examined: the length of the delay; the reason the
government assigns to justify the delay; the accused’s assertion

of a right to a speedy trial; and prejudice to the accused.
31
In the present matter, the High Court based its decision on the
manner in which it felt these factors had to be balanced.
A word of caution: these
four factors should not be dealt with as though they constitute a
definitive checklist. A balancing
test necessarily compels courts
to approach speedy trial cases on an ad hoc basis.
32
The matter before us certainly resists talismanic use of the
four-pronged test. In the first place, it was not the state
that
was responsible for the delay, but Mrs Bothma, a private
prosecutor. So, as I have already stated, no question of
abuse of
state power arises. Nor, in the circumstances, could Mr Els
be criticised for failure to assert his right to
a speedy trial,
when there was nothing to lead him to believe that he would become
an accused person. This leaves us with
the following factors
enumerated in
Sanderson
: the length of the delay, the reason
given by Mrs Bothma to justify the delay, and prejudice to the
accused.
To the list set out in
Sanderson
, however, must be added a further factor, one not
considered by the High Court. I refer to the nature of the
offence. Jurisprudence
in this country and abroad abounds with
reference to the special consideration that needs to be given to
the manner in which
sexual abuse of children, especially if
prolonged, can provoke delay in their later lodging complaints as
adults about such
abuse. This element speaks to both the reason
proffered by Mrs Bothma for the delay, and the public policy
dimensions
that have to be taken into account in the balancing
exercise. Without placing the specific nature of the offence in
the scales,
the balancing exercise is itself unbalanced.
A perusal of the High
Court judgment shows that consideration was given only to the three
factors the Court felt had to be balanced
against each other. The
first was the length of the delay. The second was the reason for
the delay. And the third was the
trial prejudice caused to Mr Els
by the delay. The specific nature of the offence was not placed in
the scales, as I
believe it should have been. I propose,
therefore, to deal in turn with each of the three factors weighed
by the High Court,
but in a manner that gives appropriate weight to
the nature of the offence.
The length of the
delay
The delay was
extraordinarily long – thirty-seven years were to pass from the
ending of the alleged acts of sexual violation
to the making of a
formal accusation. Yet as Kriegler J pointed out in
Sanderson
, the time involved is not a decisive factor in
itself. Time is the triggering mechanism that initiates the
enquiry, and also
functions as an independent factor in the
enquiry.
“
[T]ime
has a pervasive significance that bears on all the factors and
should not be considered at the threshold or, subsequently,
in
isolation. . . . [One] should also remember that time is not really
placed on the scale at all–it conditions all the factors,
and
they in turn diminish or intensify its significance.”
33
Kriegler J added:
“
I
do not believe it would be helpful for our courts to impose . . .
semi-formal time constraints on the prosecuting authority.
That
would be a law-making function which it would be inappropriate for
a court to exercise. The courts will apply their
experience of how
the lapse of time generally affects the liberty, security and
trial-related interests that concern us. Of
the three forms of
prejudice, the trial-related variety is possibly hardest to
establish, and here as in the case of other
forms of prejudice,
trial courts will have to draw sensible inferences from the
evidence.”
34
(Footnotes omitted.)
The judgment in
Sanderson
points out that in determining reasonableness it is not only
the interests of the accused that must be borne in mind. In making

a value judgment, courts must be constantly mindful of the profound
social interest in bringing a person charged with a criminal

offence to trial, and resolving the liability of the accused. When
a permanent stay of prosecution is sought this societal
interest
will loom very large.
35
“The entire enquiry must be conditioned by the recognition that
we are not atomised individuals whose interests are divorced
from
those of society. We all benefit by our belonging to a society
with a structured legal system; a system which requires
the
prosecution to prove its case in a public forum.”
36
The judgment notes that “[w]e also have to be prepared to pay a
price for our membership of such a society, and accept that
a
criminal justice system such as ours inevitably imposes burdens on
the accused.”
37
Having underlined the
societal dimension, however, the judgment goes on to state that
these burdens—
“
are
profoundly troubling and incidental. The question in each case is
whether the burdens borne by the accused as a result
of delay are
unreasonable. Delay cannot be allowed to debase the presumption of
innocence, and become in itself a form of
extra-curial punishment.
A person’s time has a profound value, and it should not become
the plaything of the State or of
society.”
38
And, with reference to
the present matter, I would add, of a private prosecutor. Indeed,
it would be profoundly troublesome
if people approaching their
eighth decade of life could suddenly, and without the most weighty
justification, find themselves
confronted with charges relating to
events that had taken place forty years before.
39
With these considerations
in mind, I turn to the question of the nature of the offence and
its connection with responsibility
for delay in lodging a charge.
Relevance of the
nature of the offence
In
Zanner v Director of Public Prosecutions, Johannesburg
,
40
the Supreme Court of Appeal had to deal with whether a ten year
delay in instituting criminal proceedings for murder, called
for a
stay of prosecution. Writing for the majority, Maya AJA
highlighted the importance of the nature of the crime in the

balancing enquiry. She observed:
“
The
right of an accused to a fair trial requires fairness not only to
him, but fairness to the public as represented by the
State as
well. It must also instil public confidence in the criminal
justice system, including those close to the accused,
as well as
those distressed by the horror of the crime. . . . It is also not
an insignificant fact that the right to institute
prosecution in
respect of murder does not prescribe. . . .
41
Clearly, in a case involving a serious offence such as [murder],
the societal demand to bring the accused to trial is that
much
greater and the Court should be that much slower to grant a
permanent stay.”
42
(Footnote added.)
Like murder, rape is one
of the few crimes that the legislature has sought to exclude from
the twenty year prescription period.
43
In
Masiya
v Director of Public
Prosecutions,
Pretoria
,
44
Nkabinde J classified rape as “the most reprehensible form of
sexual assault . . . a humiliating, degrading and brutal invasion

of the dignity and the person of the survivor”,
45
and observed that it was systematic, pervasive and overwhelmingly
gender-specific, reflecting and reinforcing patriarchal
domination.
46
She held that it was therefore imperative that courts strive to
achieve the object of criminalisation of the act of rape,
namely
“to protect the dignity, sexual autonomy and privacy of women and
young girls as being generally the most vulnerable
group in line
with the values enshrined in the Bill of Rights – a cornerstone
of our democracy.”
47
She further held that courts, when dealing with rape, should give
due consideration to the fact that the crime “reflect[s]
the
unequal power relations between men and women in our society.”
48
Rape often entails a
sexualised act of humiliation and punishment that is meted out by a
perpetrator who possesses a mistaken
sense of sexual entitlement.
The criminal justice system should send out a clear message through
effective prosecution that
no entitlement exists to perpetrate
rape. When the legislature accepted that there should be no
prescription period for prosecuting
rape, it must have been aware
of the difficulties of proof that would inevitably accompany
prosecutions delayed for more than
two decades. It would be
particularly unfortunate, then, if the courts were in effect to
usurp the legislative role and impose
what amounted to a judicial
statute of limitations by staying prosecutions simply because the
effluxion of time had seen much
evidence vanish.
Child rape is an
especially egregious form of personal violation. As law reports
from other jurisdictions show, it is sadly
found in all social
classes in all parts of the world. It is widespread, if
under-reported, in South Africa.
49
By its nature it is frequently characterised by secrecy and
denial. There is accordingly a special public interest in taking

action to discourage and prevent the rape of children. Because it
often takes place behind closed doors and is committed by
a person
in a position of authority over the child, the result is the
silencing of the victim, coupled with difficulty in obtaining

eye-witness corroboration. Complainants should be encouraged
rather than deterred when, breaking through feelings of fear
and
shame, they seek to bring to light past abuses against them.
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 forty-eight, sued her uncle for sexual
abuse during eight 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.
50
Deciding
that a victim of childhood 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
1980s 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 proceedings years after the actual
incidents of abuse.”
51
The Supreme Court of
Appeal accepted that rape had the inherent effect of rendering
child victims unable to report the crime,
sometimes for several
decades, and that the policy was not to penalise them for the
consequences of their abuse by blaming
them for the delay. Heher
JA stated that the psychological studies that had been undertaken
of the sexual abuse of children
had revealed effects on the victims
which were very different from those suffered by the usual
plaintiff in a delictual action.
He continued:
“
Of
course, the prescription statutes in force in this country were
drafted in ignorance of and without consideration for the
special
problems afflicting such survivors. Moreover, society as a whole
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 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 proceedings arising from sexual abuse committed
against a child during the
period in question.”
52
The Supreme Court of
Appeal went on to observe that the incidents in adulthood which
counsel for the defendant had cited were
consistent with the
plaintiff’s knowledge that the defendant had abused her. But
they had been visceral reactions falling
short of rational
appreciation that he rather than herself had been the culpable
party.
“
It
[was] 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 the progressive course of
self-discovery [had] finally removed the blindfold she
had worn
since the malign influences which [had taken] over her psyche.”
53
The judgment stated that
expert evidence demonstrated that:
chronic child abuse was
a crime of a very special kind,
given
the results
that flow from it;
distancing of the victim
from reality and transference of responsibility by the victim onto
himself or herself were known
psychological consequences; and
in the absence of some
cathartic experience, such consequences could and often do persist
into middle age despite the cessation
of the abuse during
childhood.
54
A similar approach was
adopted by the Supreme Court of Appeal in
S v Cornick
.
55
In that matter the rapes for which the appellants had been
convicted occurred in 1983, some nineteen years before the
complainant
laid charges against them. The complainant was then a
child of fourteen and the appellants some four years older. The
complainant
testified that she did not realise until her
mid-twenties that she had been raped. She attempted to bury the
ordeal in the
back of her mind, though she said that she had become
even more withdrawn a child than she had been before. She said
that
she had “lived a lie”.
56
Upholding the
convictions, Lewis JA stated that it was not improbable that a
young woman who had tried to bury memories of a
traumatic event for
many years would not appreciate until her mid-twenties, at a time
when discussion and publicity about rape
had become common, the
full extent of what had happened.
57
The Court went on to hold that the complainant’s explanation for
the delay in laying a charge was credible.
“
She
did not appreciate the magnitude of what had happened to her. She
did not realise that she had been raped. She knew only
that
something terrible had happened to her, and felt in some way
responsible, complicit. She had let it happen and was therefore

ashamed. The threat by Cornick the following day exacerbated her
feelings of shame and humiliation. She was not in a position
to
discuss personal matters with her elderly and very conservative
grandparents. She also felt she could not tell her mother.
Sex
was not openly spoken about in the community in which she lived.
Rapes were not reported and discussed daily by the media
as they
are now.”
58
The need for courts to
give an effective response to rape, and especially the rape of
young girls, has been emphasised throughout
the world. Thus
Article 4 of the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in
Africa states that
“[e]very woman shall be entitled to respect for her life and the
integrity and security of her person.”
59
Article 4(2) further states that:
“
State
Parties shall take appropriate and effective measures to:
(a) enact and enforce
laws to prohibit all forms of violence against women including
unwanted or forced sex whether the
violence takes place in
private or public;
(b) adopt such other
legislative, administrative, social and economic measures as may
be necessary to ensure the prevention,
punishment and
eradication of all forms of violence against women”.
60
Similarly, the African
Charter on the Rights and Welfare of the Child recognises in its
Preamble—
“
that
the child, due to the needs of his physical and mental development
requires particular care with regard to health, physical,
mental,
moral and social development, and requires legal protection in
conditions of freedom, dignity and security”.
Article 16(1) goes on to
provide that:
“
States
Parties to the present Charter shall take specific legislative,
administrative, social and educational measures to protect
the
child from all forms of torture, inhuman or degrading treatment and
especially . . . maltreatment including sexual abuse”.
Courts in the Southern
African region have been unequivocal in their denunciation of rape,
more especially where children are
involved.
Thus
the Namibian High Court, in
S v M
61
endorsed the following statement:
62
“
Brutality
against the vulnerable in our society, especially women and
children, has reached a crisis point. Small children
have become
the target of men who are unable to control their base sexual
desires. What once may have been unthinkable had
now become a
quotidian occurrence – a fact which the learned magistrate, as he
did, was entitled to take judicial notice
of. These crimes against
the vulnerable in our society evoke a sense of helplessness in the
national character.”
Similarly, the Botswana
Court of Appeal in
S v Montshwari
63
underlined “the alarming increase in rape cases in Botswana and
the gravity of the offence. Rape is a heinous offence.
Apart from
the violence invariably associated with it, the offence is a
violation of the personality of the victim. Women
require
protection from such violations.”
64
And the Zimbabwean High Court in
S v J
65
observed that it had “repeatedly stated that rape is the most
heinous invasion of one’s body, one’s personality and dignity,

the more so when it is perpetrated on young people.”
These decisions are
consistent with the principles of the African charters referred to
above. Law reports from further afield
are replete with findings
relating specifically to the question of lengthy delay in reporting
sexual offences against young
children. Thus in
R v L (W.K.)
66
the Supreme Court of Canada held that a stay of prosecution should
not have been issued by the trial court in a matter where
a man was
charged with having sexually assaulted his step-daughter and
daughters over a period that had started thirty years
before. A
unanimous Court held:
“
It
is well documented that non-reporting, incomplete reporting, and
delay in reporting are common in cases of sexual abuse.
The 1984
Report of the Committee on Sexual Offences Against Children and
Youths (the Badgley Report), vol. 1, explained at
p. 187 that:
‘
Most
of these incidents were not reported by victims because they felt
that these matters were too personal or sensitive
to divulge to
others, and because many of them were too ashamed of what had
happened. . . . For three in four female victims
and about nine
in 10 male victims, these incidents had been kept as closely
guarded personal secrets.’
For
victims of sexual abuse to complain would take courage and
emotional strength in revealing those personal secrets, in opening

old wounds. If proceedings were to be stayed based solely on the
passage of time between the abuse and the charge, victims
would be
required to report incidents before they were psychologically
prepared for the consequences of that reporting.”
67
In New Zealand the Court
of Appeal in
W v Attorney-General
68
observed:
“
Approaching
the question whether she 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.
69
. . . .
“
Some women never
complain. Others delay complaining for many years, if not decades.
The reasons why women refrain from or
delay in making a complaint
may be subtle and difficult to comprehend, forming part of the rape
trauma syndrome suffered by
many women in the aftermath of rape or
sexual assault.
70
. . . .
“
[W]hile there may be a
public interest in granting certain classes of defendant statutory
immunity from being sued after a defined
time, there cannot be any
public interest in protecting the perpetrators of sexual abuse from
the consequences of their actions
. . . the patent inequity of
allowing these individuals to go on with life without liability,
while the victim continues to
suffer the consequences, clearly
militates against any guarantee of repose.”
71
In
R v Smolinski
,
72
the Court of Appeal in England upheld an appeal on the facts
against the conviction of a man who at the age of sixteen (twenty

years earlier), had allegedly indecently touched two sisters aged
six and seven when acting as their babysitter. Lord Chief
Justice
Woolf concluded:
“
We
hope we have made clear two things in the course of hearing this
appeal. One is that we discourage applications [for stay
of
prosecution] based on abuse [of process] in cases of this sort.
Secondly, where evidence is given after so many years,
the court
should exercise very careful scrutiny at the end of the evidence to
see whether or not the case is safe to be left
to jury. If there
is an appeal, then this court will scrutinise the situation with
care. We are certainly not indicating
that it is not right to
bring prosecutions in the appropriate circumstances merely because
of the period that has elapsed.
As this Court appreciates, it is
sometimes very difficult for young children to speak about these
matters and therefore it
is only many years later that they come to
light. Justice must be done of course to a defendant, but the
court must also be
mindful of the position of the alleged
victims.”
73
The nature of the
offence
A salient feature of the
High Court’s judgment in the present matter is that it gave
insufficient weight to the nature of
the offence, as highlighted in
the above decisions. The allegations related to repeated acts of
sexual violation of a schoolgirl
over a couple of years by an
admired and powerful friend of the family considerably older than
herself.
The special character of
the offence has double significance. In the first place, if the
findings and reasoning in
Van Zijl
and all the other cases
referred to, are to be given any credence, her explanation for the
delay would at least be plausible.
In the absence of her
credibility being tested through the normal trial processes of
examination and cross-examination, the
High Court was not in a
position to make a definitive finding that she had been culpable
for the delay. Nor is this Court.
The fact is that if her account
of what had happened is true, then the very conduct complained of
could well have stifled
her psychological and emotional capacity to
declare openly what had happened. The main responsibility for the
delay in laying
the charge would then not have rested with her. It
would have been attributable to the assaults that transformed her
from
a lively, successful young person into a deeply traumatised
adult incapable for decades of comprehending the source of her

woes.
The crime as alleged in
the present matter is of a peculiarly intimate and personally
distressing character. According to Mrs Bothma,
the sexual
violations were repeated over a period of three years, starting
when she was thirteen. Mr Els, a prominent
businessman in the
community, was a wealthy family friend and twenty-three years older
than herself. He would arrange with
her parents for her to come
and visit him at his farm. He would arrive to pick her up in
expensive cars and take her to the
farm where they would stay alone
(save for his domestic worker). If he had visitors, he would lock
her in a room.
Mrs Bothma submits
that the nature of the offence is inextricably linked with the
reason for the delay. She avers that
she internalised the shame of
the events, feeling guilt, betrayal and powerlessness, and fearing
stigmatisation should she
confide in anyone; she suppressed the
memory of the rapes due to these feelings; her schoolwork suffered
and she became withdrawn;
and the sense of “inner badness”
persisted into her adult life where she endured three failed
marriages, and was unable
to find success in her business ventures.
She adds that it was only after she received counselling during
time spent in prison
that she came to grips with and accepted the
common thread underlying all the disasters in her adult life,
namely, the treatment
she had endured while still a child at the
hands of Mr Els. It was then for the first time that she
developed meaningful
knowledge of the wrong that had been done to
her.
Without pronouncing on
the veracity of her charges, it should be noted that there also
exist strong public policy reasons for
allowing the nature of the
crime to weigh heavily in favour of allowing these charges to be
aired in court. 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.
Trial prejudice
I now repeat the High
Court’s findings on trial prejudice:
“
[Mr Els]
has referred to the fact that he could not have committed the rape
offences in 1968 at his present residence,
as [Mrs Bothma]
alleges, since he was not occupying that residence at the time. He
also alluded to the fact that both
his brother and his
sister-in-law (i.e. his brother’s wife) were now deceased. They
could have attested to the fact that
he had not been staying there,
since his brother was busy renovating and refurbishing that
residence for [him]. He furthermore
alludes to the fact that his
erstwhile domestic assistant, who would have been able to attest to
the fact that [he] did not
rape [Mrs Bothma as a child] over
the weekends . . . is also now deceased. . . . Similarly, the lack
of access to motor
vehicle records dating back 40 years, to show
that he did not possess a Mercedes or an E-type Jaguar at the time,
as alleged
by [Mrs Bothma], may also prejudice [him] in his
trial. . . . In addition to those aspects there is of course the
very
real likelihood of fading memory, not only of [Mr Els],
but also of any witnesses who may still be alive.”
74
On the basis of these
observations the High Court held that it was of the view—
“
that
[Mr Els] will undoubtedly be prejudiced and would not have a fair
trial, given the considerable difficulties he faces in
mounting a
proper defence. . . . [T]hese obstacles are virtually
insurmountable, given the irretrievable loss of documents
and of
witnesses who have since passed away.”
75
These
findings call for interrogation of what is meant by irreparable or
insurmountable trial prejudice. Irreparable prejudice
must refer
to something more than the disadvantage caused by the loss of
evidence that can happen in any trial. Thus, irretrievable
loss of
some evidence, even if associated with delay, is not determinative
of irreparable trial prejudice.
76
Irreparability should not be equated with irretrievability.
Clearly, potential witnesses who have died cannot be revived.

Documents that have gone permanently astray may not be capable of
recreation. Irreparability in this context must therefore
relate
to insurmountable damage caused not to sources of testimony as
such, but to the fairness and integrity of a possible
trial. Put
another way, to say that the trial has been irreparably prejudiced
is to accept that there is no way in which the
fairness of the
trial could be sustained.
Bearing these
considerations in mind and before I evaluate the facts in this
case, I will look at the manner in which South
African courts have
evaluated trial prejudice resulting from extensive delay.
Trial prejudice in
other matters
In
Wild v Hoffert NO
77
there had been a three-year delay between the applicants’ initial
arrest for drug trafficking and the trial because of repeated

incidents of prosecutorial postponement. This Court held that
while the delay had been unreasonable, no trial-related prejudice

or exceptional circumstances existed, and a stay of prosecution was
refused.
78
In
McCarthy
v Additional Magistrate, Johannesburg
79
the Supreme Court of Appeal per Farlam AJA, held that a
permanent stay of prosecution is seldom granted in the absence of
extraordinary
circumstances or significant prejudice to the
accused. In this case, the appellant was arrested three times over
the course
of three years for extradition to the United States to
stand trial. The circumstances that presented handicaps to the
appellant
had not been proven, nor, conversely, was there proof
that they would render the prosecution’s task more difficult, in
particular
those handicaps relating to the availability of
witnesses and their recollection of events. The Court held that
the duty on
the prosecution to prove its case beyond a reasonable
doubt served as protection of the fair trial rights of the accused
and
that any prejudice to the accused would be brought into this
enquiry.
80
In
Naidoo v National
Director Public Prosecutions
81
the Cape High Court refused to grant a stay, holding that
trial-related prejudice is not easy to establish and that it—
“
borders
on the impossible for this Court [a court other than the trial
court] to determine the impact of the loss of a witness,
or the
effect of the lapse of time on the reliability of the recall of
events by witnesses. . . . The State faces the same
prejudice and
the extent of the prejudice can only be properly measured by the
trial court hearing all the relevant evidence.”
82
In
Zanner
the
majority of the Supreme Court of Appeal per Maya AJA refused to
grant a permanent stay of prosecution to a person accused
of murder
some ten years earlier.
83
The charge had been withdrawn, but when he was later accused of a
second murder, the charge was reinstated along with the
new charge.
The accused applied for a permanent stay of prosecution on the
grounds that the time delay had resulted in witnesses
being
unavailable and their memories of the events concerned having
faded.
84
The Court held that although the time period was central to the
enquiry of whether it was unreasonable, the fact of a long
delay
cannot of itself be regarded as an infringement of the right to a
fair trial but must be considered in the circumstances
of each
case. The accused must show “definite and not speculative
prejudice”
85
and in the absence of this, the trial court would have to consider
any prejudice in adjudicating the case. The Court concluded
that
the accused had failed to demonstrate irreparable trial prejudice.
The judgment then went on to highlight the importance
of the nature
of the crime.
86
One
recent South African case where a stay was granted is
Broome v
Director of Public Prosecutions, Western Cape.
87
The applicants in that matter were accused of fraud allegedly
committed between 1986 and 1994. In 1994, a governmental

commission of enquiry seized audit files, documents, and records.
88
There was a seven-year delay between the conclusion of the
investigation and the formal charge in 2004, which the Court found

inexplicable and inexcusable. Most importantly, the state had been
responsible for the loss of documents instrumental to the
defence
(the applicants had provided a detailed exposition of the material
that was missing and a full explanation of the significance
of the
working papers), in addition to denying the applicants access to
the documents. Because the case concerned an audit
that had been
conducted by many people, the applicants and any witnesses they
might call could not be expected to remember
everything that had
occurred in the course of the audit. One of the accused was old,
and his memory was diminished. Witnesses
had moved away or were
untraceable, and those who remained could not remember the events
clearly. In granting the permanent
stay of prosecution, the Court
concluded that—
“
[i]f,
on the facts, it is shown that an accused has been deprived of his
right to prepare his defence to criminal charges, the
interest of
justice can never require such a person to stand trial – more
particularly, if the prosecution is solely to blame
for this state
of affairs.”
89
It is notable that in the
only case where a stay was granted, it was the state that had been
responsible for the loss of crucial
documents.
90
This was the precipitating factor that introduced an element of
unfairness that went not only to the untoward harm caused
to the
defence, but to the integrity of the criminal process. It is
simply not fair for the state to prosecute someone and
then
deliberately or through an unacceptable degree of negligence
deprive that person of the wherewithal to make a defence.
This is
qualitatively different from the irretrievable weakening of a
defence that flows from loss of evidence of the kind
that could
happen even with short delays, but be intensified by long delays.
Witnesses die, evidence disappears, memories
fade. These factors,
the natural products of delay, may not necessarily be sufficient to
establish unfairness. If, as a result
of the lack of evidence, the
judicial officer dealing with the matter is unable to make a clear
determination of guilt, then
the presumption of innocence will
ensure an acquittal.
In conclusion: the
ordinary and expected effects of time-lapse are taken care of by
prescription, which establishes an irrebuttable
presumption of
unfairness or impropriety in proceeding with a prosecution. That
is not to say, however, that prescription
is the only relevant
factor in relation to the effects of pre-trial delay on the
fairness of a trial. Each case would have
to be looked at on its
merits. The conduct of the prosecution could be highly relevant,
particularly if it has led directly
to the disappearance of crucial
evidence. Loss of faculties to make a proper defence could be
another factor. The dissipation
of evidence through death of
witnesses or disappearance of documents would also require
consideration. Improper motives, such
as a complainant having long
delayed in initiating proceedings for purposes of blackmail or the
making up of a stale misdemeanour
purely to impede a competitor’s
career could impact so severely on the integrity of the
administration of justice as to call
for a stay of prosecution.
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 shop-lifting 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
will it 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 saying
tells us “Molato
ga o bole” (Setswana) or “ical’aliboli”
(isiZulu) – there are some crimes that do not go away.
Balancing in the
present case
This is a poignant case
with dark edges of tragedy. If Mrs Bothma’s story is true,
then she has spent her life as a
deeply wounded person living with
the consequences of her victimisation, only now in her late middle
age being able to seek
vindication and redress. If her story is
not true, then an innocent man approaching his eightieth year has
found himself wreathed
in a cloud of possible disgrace, facing the
agony of having to defend himself in public against grievously
false accusations.
At this stage we do not know where the truth
lies. Indeed, the issue before us is not whether what she says is
the truth
or an invention. The question is whether she should be
stopped from giving her account to enable a criminal court to
decide.
If her account is true, it indicates that she was
subjected to predatory sexual violation over a long period of time
in circumstances
where she felt powerless and complicit in her own
subjection. The implication of her averments is that it was the
impact of
the offence itself that was the underlying cause of the
delay.
There can be no doubt
that the delay of almost four decades has created significant
prejudice to Mr Els in making his defence.
It is not that he
claims that age has withered or custom staled the vitality of his
mind or memory. His argument is that
the passage of time has
robbed him of the ability to call witnesses and denied him the
right to produce material evidence that
would contradict the
allegations made by Mrs Bothma.
The first point to notice
is that there has been no suggestion that Mrs Bothma herself
has acted in any way to destroy
evidence. Secondly, the lack of
specificity in relation to the alleged rapes would be precisely the
kind of information to
be dealt with at the trial. Thirdly, no
weight was given to the fact that Mrs Bothma also suffered
prejudice, in particular,
from being unable to call the domestic
worker to corroborate her story.
The key controlling
element, as far as fairness of the trial is concerned, would be the
presumption of innocence.
91
The gravity of the offence and the public interest in ensuring
that perpetrators are brought to book can never in themselves

justify a conviction if the evidence is insufficient.
92
In this respect, the contention by Mr Els’s counsel that
the paucity of surviving evidence could result in an innocent
man
going to jail, cannot serve as a basis for stopping the proceedings
in advance of the trial. The trial court will be obliged
to give
due weight to the evidential deficit facing Mr Els. In the
words of L’Heureux-Dubé J in the Canadian Supreme
Court:
“
Difficulty
may well be experienced by an accused in gathering rebuttal
evidence. [Yet] . . . the potential for such difficulty
is
likely one of the reasons why the prosecution bears the heavy onus
of
proving all aspects of guilt beyond a reasonable doubt
.
In that regard the criminal system has always taken into
consideration that it will occasionally be difficult for an accused

to demonstrate innocence, and has removed the need to do this, by
putting a high onus of proof upon the Crown.”
93
(Her emphasis.)
And should the trial
court err, the court hearing an appeal should, in the circumstances
of a case like the present, be especially
attentive to ensuring
that any doubt would favour the accused.
94
What this boils down to,
however, will be that it is up to the trial court to ensure that
Mr Els has a fair trial. It
would be ill-advised at this
stage to rehearse scenarios. The possibility exists that after
Mrs Bothma has presented
her evidence, an application could be
made for a discharge on the ground that no prima facie
case
has been made out. It is not desirable to speculate on the
different forensic permutations possible. What is sure is
that if
the trial proceeds to its conclusion and all the available
witnesses whom the parties wish to call are led, the trial
court
would be obliged to give due weight to all the difficulties that
Mr Els would have had in presenting his evidence.
If, bearing
this in mind, his guilt is not proved beyond reasonable doubt, he
must be acquitted.
In
summary then, the High Court erred in two major respects. In the
first place, it failed to give appropriate weight to the
nature of
the offence. Had it done so, and had it paid sufficient attention
to the import of decisions of the Supreme Court
of Appeal, it could
not have come to the firm conclusion that Mrs Bothma’s
explanations for the delay were unpersuasive
and that she had been
solely responsible for the lateness of her complaint. Given the
nature of the alleged offence, it was
simply not open to the High
Court definitively to blame her for the delay in laying a charge,
and use this finding as the basis
for pre-empting the very trial
that was to determine whether her delay had been reasonable; the
conclusionary cart should not
have been placed before the
evidential horse.
In
the second place, it was incorrect of the High Court to assume that
because some evidence had been irretrievably lost, the
trial
prejudice to which Mr Els would be subjected would be
insurmountable.
95
In my view, the claim of delay-induced unavailability of evidence
should have been seen not as establishing irrefutable proof
of
irremediable trial prejudice, but rather as constituting a
significant factor that the trial court will be obliged to take

into account when considering the guilt or otherwise of Mr Els.
The matter would have
been different if Mrs Bothma had been responsible for the
destruction of evidence. In these circumstances,
the case for
aborting the trial would have been powerful. Yet there is no
suggestion on the record that she in any way contributed
either to
the demise of potential witnesses or to the loss of possible
documentary exhibits. The fact is that the delay appears
to have
deprived both parties equally of supporting testimony. In the
result, the High Court was faced with a classic case
of bald
allegation versus bald denial. One of the litigants was lying, the
other telling the truth. The law has one time-honoured
way of
determining who should be believed, and that is through examination
and cross-examination of oral evidence, and if after
the evidence
is tested in this way, the court has any reasonable doubt about
where the truth lies, that doubt will entitle
the accused to an
acquittal.
The High Court cannot be
faulted for the manner in which it contextualised the issues, and
within its frame of reference, it
provided well-motivated reasons
for coming to the conclusion it did. However, the frame it adopted
was too narrow. First,
it gave no scope for placing on the scale
the nature of the offence and its significance in explaining the
delay. Second,
it provided too narrow a test for determining what
would constitute irreparable trial prejudice. Moreover, the
structure of
the analysis directed the High Court towards deciding
matters itself, which should have been left to the trial court.
Accordingly, the appeal
against the High Court order must succeed, and the stay of
prosecution must be set aside.
Psychological reports
As a result of this
conclusion, it is not necessary to decide whether the psychological
reports tendered on behalf of Mrs Bothma
are admissible.
96
I have disregarded these reports in the preparation of this
judgment.
Costs
Mrs Bothma has asked
that should her appeal succeed, costs be awarded in her favour in
both the High Court and in this
Court. In the event of her
application being unsuccessful, however, she urges this Court to
make no order as to costs. Mr Els,
on the other hand, has
requested that this Court make no order as to costs, whether he is
successful or not. It is common
cause that in the High Court
proceedings Mrs Bothma was represented by a local firm of
attorneys, and that in her application
for leave to appeal to this
Court she was represented by the Legal Resources Centre.
97
After upholding Mr Els’s
claim that the private prosecution should be permanently stayed,
the High Court stated that
ordinarily, where substantial
constitutional issues were raised, an unsuccessful party ought not
to be ordered to pay the costs
of the successful party. It
therefore made no order of costs against Mrs Bothma.
98
Now that the appeal against the stay of proceedings has succeeded,
the question of costs in the High Court needs to be revisited,

while the costs of the application for leave to appeal to this
Court must also be considered.
As with any award for
costs, the award of costs in litigation between private parties
where constitutional issues are raised
is a matter which is within
the discretion of the court considering the issue. It is a
discretion which must be exercised
judicially, having regard to all
the relevant considerations.
99
The general principle as far as private litigation is concerned is
that costs will ordinarily follow the result. This means
that when
parties initiate proceedings, they take the risk that if
unsuccessful they will have to pay the costs of their opponents.
This general approach has
been followed in a number of cases in this Court where
constitutional issues had been raised in litigation
between private
parties. Usually these matters turned on the relationship between
competing constitutional principles. The
classic example was that
of defamation, where the plaintiff would raise dignity and privacy
interests, and the defendant would
rely on free speech; see for
example,
Khumalo v Holomisa
.
100
In
Laugh It Off Promotions CC v South African
Breweries
101
the issue was trademark property protection versus freedom of
speech. In both these matters costs followed the result.
There have, however, been
exceptional cases where no order as to costs has been made. A
factor that has loomed large in justifying
this departure from the
general rule has been the extent to which the pursuit of public
interest litigation could be unduly
chilled by an adverse costs
order.
In constitutional
litigation between the state and private parties, this
consideration is normally decisive. As we stated recently
in
Biowatch Trust v Registrar, Genetic Resources
102
the general rule in these cases is that successful private parties
should receive their costs, while unsuccessful parties should
not
be ordered to pay the costs of the state. The rationale for this
approach is three-fold:
“
In
the first place it diminishes the chilling effect that adverse
costs orders would have on parties seeking to assert constitutional

rights. Constitutional litigation frequently goes through many
courts and the costs involved can be high. Meritorious claims

might not be proceeded with because of a fear that failure could
lead to financially ruinous consequences. Similarly, people
might
be deterred from pursuing constitutional claims because of a
concern that even if they succeed they will be deprived
of their
costs because of some inadvertent procedural or technical lapse.
Secondly, constitutional litigation, whatever the
outcome, might
ordinarily bear not only on the interests of the particular
litigants involved, but on the rights of all those
in similar
situations. Indeed, each constitutional case that is heard
enriches the general body of constitutional jurisprudence
and adds
texture to what it means to be living in a constitutional
democracy. Thirdly, it is the state that bears primary

responsibility for ensuring that both the law and state conduct are
consistent with the Constitution.
If there should be a genuine,
non-frivolous challenge to the constitutionality of a law or of
state conduct, it is appropriate
that the state should bear the
costs if the challenge is good, but if it is not, then the losing
non-state litigant should
be shielded from the costs consequences
of failure. In this way responsibility for ensuring that the law
and state conduct
is constitutional is placed at the correct door.”
(Footnote omitted.)
The
first two factors could also have relevance to the determination of
costs awards in private litigation involving constitutional
issues.
They are the chilling effect an adverse costs order might have;
and the broader implications of most constitutional
litigation.
Taken together, they highlight the importance of considering the
public interest dimension, and could influence
a decision as to
whether there should be an exception to the general rule set out
above.
The clearest example of
what this Court regarded as an exceptional case is
Campus Law
Clinic v Standard Bank of South Africa
,
103
where a public interest NGO sought unsuccessfully to intervene in a
dispute between a bank and a mortgagor. The Court did
not award
costs as asked for by the bank, because the Campus Law Clinic
sought in the public interest to raise important constitutional

issues, albeit unsuccessfully.
A similar approach was
adopted in
Barkhuizen v Napier
.
104
In that matter, a private person had unsuccessfully sought to
appeal against a decision of the Supreme Court of Appeal rejecting

a challenge on constitutional grounds to a contractual time-bar
which had prevented him from suing an insurance company. The

challenge was to the constitutional validity of onerous provisions
in small print in standard-form contracts. Ngcobo J,
writing
for the majority, overturned a costs award that had been made
against the applicant in the Supreme Court of Appeal,
and made no
award for costs in this Court, even though the applicant had failed
in both Courts. He stated that:
“
This
is not a case where an order for costs should be made. The
applicant has raised important constitutional issues relating
to
the proper approach to constitutional challenges to contractual
terms. The determination of these issues is beneficial
not only to
the parties in this case but to all those who are involved in
contractual relationships. In these circumstances,
justice and
fairness require that the applicant should not be burdened with an
order for costs. To order costs in the circumstances
of this case
may have a chilling effect on litigants who might wish to raise
constitutional issues. I consider therefore that
the parties
should bear their own costs, both in this Court and in the courts
below.”
105
The circumstances in the
present matter are different. Mr Els’s application was made
on an interlocutory basis with
a view to interrupting proceedings
and pre-empting a private prosecution. Criminal proceedings in the
Regional Court were
accordingly postponed, and a separate civil
action was brought in the High Court to permanently stay the
criminal proceedings.
The proceedings in effect sought to deny
Mrs Bothma the opportunity to establish at the trial a factual
explanation for
her long delay in laying a complaint. They were
premature. It should be noted, too, that it was Mrs Bothma
who, while
fending off the application for a permanent stay,
successfully raised the new constitutional issue upheld by this
Court.
Thus, while this matter
has raised important constitutional issues and may be regarded as a
borderline case insofar as costs
are concerned, it is not one where
the circumstances are so exceptional as to warrant a departure from
the general rule. It
is appropriate, therefore, that costs should
follow the result. Costs in this Court are to include the costs of
the employment
of two counsel.
Order
The
following order is made:
1.
The
application for leave to appeal directly to this Court is granted.
2.
The
appeal succeeds.
3.
The
order of the Northern Cape High Court, Kimberley,
case
number 812/2008, is set aside and replaced with the following
order:
“
The
application is dismissed with costs.”
4. The first respondent
is ordered to pay the applicant’s costs in this Court, including
the cost of two counsel.
Langa
CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J,
O’Regan J, Skweyiya J, and Van der Westhuizen J concur
in the
judgment of Sachs J.
Counsel
for the Applicant: Advocate
JJ Gauntlett
SC
and
Advocate F Pelser
instructed by
Towell & Groenewalt.
Counsel
for the First Respondent: Advocate JG Cilliers SC instructed
by Engelsman Magabane Inc.
1
Summons was issued on 6 June 2007 under case number 603/07.
Mrs Bothma claimed an amount of R3,7 million from Mr Els

in respect of sentimental and patrimonial damages and loss. Mr Els
entered a plea denying the allegations as well as a
special plea of
prescription on 6 July 2007.
2
In terms of
section 7(2)(a)
of the
Criminal Procedure Act 51 of
1977
, a DPP must, at the request of the person intending to
prosecute, grant the certificate
nolle prosequi
in every case
in which the DPP has declined to prosecute. The certificate
confirms that the DPP has examined the statements
on which the
charge is based and that he or she declines to prosecute at the
instance of the state.
3
51 of 1977.
4
He also sought an order declaring that
section 7
of the CPA was
unconstitutional. Furthermore, he asked the Court to review and set
aside the issuing of the summons, on the
ground that no proper
procedure had been followed in respect of
section 9(1)(b)
of the CPA
which deals with furnishing of security for the trial by the private
prosecutor. It was agreed between the parties
that these two issues
should be separated from the question of the permanent stay of
prosecution.
5
Mr Bothma is deceased. After the failure of her second and
third marriages to Mr Wessels and Mr Stals respectively,

she decided to resume the name “Bothma”.
6
There appears to be some inconsistency between his statement to the
police and his application to the High Court. In the police

statement he says that she phoned him two weeks after the visit to
request the loan; in the affidavit he implies that she asked
for the
loan while visiting.
7
He spelt her name this way in his statement to the police.
8
Citing
Sanderson v Attorney-General,
Eastern Cape
[1997] ZACC 18
;
1997
(12) BCLR 1675
(CC);
1998 (2) SA 38
(CC)
, the leading South
African case on unreasonable delay in criminal prosecution, and
Zanner v Director of Public Prosecutions, Johannesburg
[2006] ZASCA 56
;
2006
(2) SACR 45
(SCA);
[2006] 2 All SA 588
(SCA) at para 10.
9
Sanderson
above
n 8
.
10
This Court in
Sanderson
endorsed the balancing approach in
the United States Supreme Court decision
Barker v Wingo
,
[1972] USSC 144
;
407 U.S. 514
at 530 (1972). See
Sanderson
above n 8 at
para 25. For a different approach, see
R v Askov
(1990) 2
SCR 1199
(SCC) at 1224-8.
11
Els v Stals and Others
, Case No 812/2008, 13 March 2009, as
yet unreported, at para 19.1. See para 18.5 where the High Court
states:
“
As
an example – she does not furnish any specific dates of the
alleged rapes, she merely states that the first rape was allegedly

perpetrated ‘during March in 1968 . . . on a Saturday evening’.”
12
Id at para 19.3.
13
Id at para 18.5.
14
Id at para 31.
15
See
Sanderson
above n 8 at para 25.
16
Van Zijl v Hoogenhout
2005 (2) SA 93
(SCA);
[2004] 4 All SA
427
(SCA) at paras 1 and 7;
S v Cornick and Another
2007 (2)
SACR 115
(SCA);
[2007] 2 All SA 447
(SCA) at para 35.
17
See section 167 of the Constitution.
18
Above n 16.
19
Section 35(3)(i) of the Constitution.
20
Accordingly, to the extent that it is
inconsistent with this approach, the minority view in
Zanner
(Nugent J) cannot be endorsed. See
Zanner
above n 8 at
paras 31-2.
21
The leading South African case on the question of unreasonable delay
deals not with pre-trial delay but with the rights of accused

persons to have their matters disposed of with reasonable dispatch.
In this respect, it provides only indirect guidance to the
issues
pertinently raised in the present matter. See
Sanderson
above n 8,
which is dealt with later in this judgment at .
22
Section 1 of the Constitution states:
“
The
Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a)
Human dignity, the achievement of equality and the advancement
of human rights and freedoms.
(b)
Non-racialism and non-sexism.
(c)
Supremacy of the constitution and the rule of law.
(d)
Universal adult suffrage, a national common voters roll,
regular elections and a multi-party system of democratic

government, to ensure accountability, responsiveness and
openness.”
Section
36 of the Constitution states:
“
(1)
The rights in the Bill of Rights may be limited only in terms of
law of general application to the extent that the
limitation is
reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom,
taking into account
all relevant factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision
of the Constitution, no law may limit any right entrenched
in the
Bill of Rights.”
Section
39(1)(a) of the Constitution states:
“
(1)
When interpreting the Bill of Rights, a court, tribunal or forum—
(a)
must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom”.
23
Section 12 of the Constitution states:
“
(1) Everyone
has the right to freedom and security of the person, which includes
the right—
(a) not
to be deprived of freedom arbitrarily or without just cause;
(b) not
to be detained without trial;
(c) to
be free from all forms of violence from either public or
private sources;
(d) not
to be tortured in any way; and
(e) not
to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone
has the right to bodily and psychological integrity, which includes
the right—
(a) to
make decisions concerning reproduction;
(b) to
security in and control over their body; and
(c) not
to be subjected to medical or scientific experiments without
their informed consent.”
24
McNabb v United States,
[1943] USSC 122
;
318 U.S. 332
, 347 (1943).
25
See the observations of Professor Hogg in
Constitutional Law of
Canada
Vol 2, 5
th
Ed (Thomson Carswell, Toronto 2007)
at 52.2, who notes that:
“
The
Supreme Court of Canada has occasionally exhibited a tendency to
draw a rather romantic picture of the eagerness of accused
persons
to be tried; Cory J., for example, has emphasized the ‘exquisite
agony’ of an accused awaiting trial. It must
be unpleasant to
wait for a criminal trial, but for an accused who is not in custody
the wait may be preferable to the trial,
with its risk of
conviction and sentence. Since the burden of proof . . . is high,
even the risk that witnesses may disappear
or forget is one that
can sometimes be endured with fortitude. It is only realistic to
accept that a speedy trial is not desired
by many accused persons,
and a court-ordered stay of proceedings by reason of delay is a
highly attractive windfall.” (Footnote
omitted.)
26
S v Zuma
and Others
[1995] ZACC 1
;
1995 (4) BCLR 401
(SA) (CC)
[1995] ZACC 1
; ;
1995
(2) SA 642
(CC)
at
para
16.
27
Above n 21.
28
At the end of October 1994, Mr Sanderson was accused of
sexually molesting two girls who, at the time, had been standard

five pupils at the school where he was employed as the deputy
headmaster. On 1 December 1994, he attended the office of the

investigating officer, who informed him that he was suspected of
acting in contravention of the Sexual Offences Act 23 of 1957.

After several postponements of the matter in court, the decision was
made on 7 August 1995 to prosecute him on two charges
under the
Sexual Offences Act. However, no specific charges had yet been
formulated. The matter was subsequently set down for
hearing in
December 1995, but the trial was once again postponed to 1 July
1996. After many requests, a charge-sheet was served
on him only in
May 1996. The defence then applied for a trial date in October
1996. As certain witnesses were unavailable,
the prosecution once
again postponed the matter to December 1996. In November 1996,
Mr Sanderson applied for a permanent
stay of prosecution. The
stay was granted by the High Court, which held, after balancing the
right of Mr Sanderson to a
speedy trial against society’s
interest, that there had been an unreasonable delay and undue social
prejudice. This Court
upheld the state’s appeal, finding no trial
prejudice against Mr Sanderson had been established.
29
See
Sanderson
above
n 8 at para 25.
30
Id at para 25;
Barker
above n 10 at 530.
31
Sanderson
above n 8 at para 25.
32
Barker
above n 10 at 530.
33
Sanderson
above n 8 at para 28 and fn 41.
34
Id at para 30.
35
Id at para 36.
36
Id.
37
Id.
38
Id.
39
Appropriate justification has been found in the case of prosecutions
for war crimes many decades after the event. See a recent
decision
from the Extraordinary Chambers in the Courts of Cambodia,
Prosecutor v Kaing Guek Eav alias “DUCH,”
Decision on Request for Release, Case File/Dossier No
001/18-07-2007/ECCC/TC; Minow,
Between
Vengeance and Forgiveness
(Beacon Press,
Boston 1998) at 50, who emphasises the value of trials handling
genocide and war-crimes such as those held in
Nuremberg, and states
that “[e]ven when marred by problems of retroactive application of
norms, political influence, and selective
prosecution . . . trials
can air issues, create an aura of fairness, establish a public
record, and produce some sense of accountability.”
40
Zanner
above n 8.
41
Section 18 of the CPA provides that:
“
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 (Sexual 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, or;
(h) trafficking
in persons for sexual purposes by a person as contemplated in
section 71(1)
or (2) of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
; 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.” (My emphasis.)
42
Zanner
above n 8 at para 21.
43
Section 18(f)
of the CPA.
44
Masiya v Director of Public Prosecutions (Pretoria)
and Others
[2007] ZACC 9
;
2007 (8) BCLR 827
(CC);
2007 (5) SA 30
(CC).
45
Id at para 36.
46
Id at fn 78, Nkabinde J citing
S
v Baloyi
[1999] ZACC 19
;
2000
(1) BCLR 86
(CC);
2000 (2) SA 425
(CC)
at para
12.
47
Id at para 37.
48
Id at para 28.
49
See Seedat et al
Health
in South Africa 5: Violence and injuries in South Africa:
prioritising an agenda for prevention
,
25 August 2009,
http://press.thelancet.com/saser5.pdf
,
accessed on 30 August 2009.
The
following statistics are of relevance:
Fifty-five thousand rapes of women and girls are reported to the
police every year, which is estimated to be nine times lower
than
the actual number. Thirty-nine percent of girls report having
undergone some form of sexual violence before they were eighteen.

Eighty-four percent of rapes in the young age group are perpetrated
by men who are known to the child, whether relatives, neighbours,

friends, or acquaintances (
compare
the fact that
52% of
adult rapes are perpetrated by a non-stranger). Exposure to trauma
and violence during childhood can give rise to both
re-victimisation
and intergenerational cycling of violence. Id at 1-5. The report
notes that “[r]evictimisation is a recognised
occurrence in rape;
girls exposed to sexual abuse as young children are at increased
risk of being raped again in childhood,
and of experiencing intimate
partner violence as adults.” Id at 3.
50
Van Zijl
above n 16 at paras 44-5
.
51
Id at para 1.
52
Id at para 7. Evidence presented to the Court explained that sexual
abuse in terms of four trauma-inducing factors – traumatic

sexualisation, betrayal, powerlessness and stigmatisation –
distorted a child’s cognitive and emotional relationship with
the
world. At para 10, the Court stated:
“
Traumatic
sexualisation is a process in which a child’s sexuality is
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 realise
how conditions of dependency have trapped them in the situation.
Stigmatisation referred
to the negative connotations – badness,
shame, guilt – that are communicated to the child and become
incorporated into
the child’s self-image”.
53
Id at para 44.
54
Id at para 14.
55
Above n 16.
56
Id at paras 12-3.
57
Id at para 32.
58
Id at para 35.
59
Art. 4(1) of the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa, available at
http://www.achpr.org/english/women/protocolwomen.pdf
.
60
Id at art. 4(2).
61
2007 (2) NR 434
(HC).
62
Id at para 16
citing
S
v Kaayuka
2005
NR 201
(HC) para 206F-I.
See also
S
v Rudath
[1999] NAHC 13
where the Namibian
High Court stated that:
“
Rape
is, by its nature,
generally regarded as a vile and serious crime. The brutal sexual
violation of a fellow being’s physical
integrity, human dignity,
security of person and psychological well-being to satisfy the
assailant’s most primitive and bestial
urges of lust, sexual
domination and power should not be tolerated in any society –
least in ours, which has constitutionally
committed itself to the
recognition and protection of the dignity, freedom and equality of
all its members.
Women,
in general, have been the suffering prey of this crime for too long
and too often. Those who have fallen victim to it
have a
legitimate expectation to seek just retribution against the
offenders though our judicial system. Moreover, as a class
of
persons constituting a significant portion of society, women have
the most immediate, compelling and direct interest that
the courts
of this country should impose deterrent sentences to discourage
potential offenders. The Namibian society shares
those sentiments.
. . .”
63
[2008] BWCA 67.
64
Id at para 12.
65
[2004] ZWHHC 155
; HH 155-2004.
66
[1991] 1 R.C.S. at 1091.
67
Id at 1100h-1101e.
68
[1999] 2 NZLR 709.
69
Id at para 37.
70
Id at para 67.
71
Id at para 79.
72
[2004] EWCA Crim. 1270.
73
Id at para 13.
74
Els v Stals
above n 11 at para 18.5.
75
Id at para 29.
76
See
R v Carosella
[1997] 1 S.C.R. 80
, where proceedings were brought against a teacher
who had allegedly committed gross acts of indecency with the
complainant when
she had been in grades seven and eight, some
twenty-seven years before. Notes taken by the Sexual Assault Crisis
Centre during
an interview with the complainant were shredded by the
organisation as a general policy to prevent the Centre from being
subpoenaed
to produce such documents in criminal trials. This
behaviour narrowly divided the Canadian Supreme Court. Stating that
the
shredding of the documents was the factor that distinguished the
case, the majority upheld the stay of prosecution ordered by the

judge. Evaluating the shredding in a different way, L’Heureux-Dubé
J for the minority observed at para 59:
“
The
criminal justice system, being very much a human enterprise,
possesses both the strengths and frailties of humanity. Lacking
a
flawless method for uncovering the truth, or a crystal ball which
can magically recreate events, the court attempts to determine
an
accused’s guilt or innocence based on the evidence before it.
This search for justice does not operate perfectly, and
in every
trial there is likely to be some evidence bearing upon the case
which does not appear before the trier of fact. Still,
society
expects courts of law to ascertain 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.”
And at
para 72:
“
While
the production of every relevant piece of evidence might be an
ideal goal from the accused’s point of view, it is inaccurate
to
elevate this objective to a right, the non-performance of which
leads instantaneously to an unfair trial.”
Later
in para 72 she quoted the following passage from a judgment by
McLachlin J:
“
[T]he
Canadian Charter of Rights and Freedoms guarantees not the fairest
of all possible trials, but rather a trial which is
fundamentally
fair . . . What constitutes a fair trial takes into account not
only the perspective of the accused, but the
practical limits of
the system of justice and the lawful interests of others involved
in the process, like complainants and
the agencies which assist
them in dealing with the trauma they may have suffered. Perfection
in justice is as chimeric as
perfection in any other social agency.
What the law demands is not perfect justice, but fundamentally
fair justice.”
77
Wild and Another v Hoffert NO and Others
[1998] ZACC 5
;
1998 (6) BCLR 656
(CC);
1998 (3) SA 695
(CC).
78
Id at paras 15-21 and 27-9. Kriegler J at para 6 pointed out that
time was—
“
not
merely a trigger to an enquiry as to prejudice. It remains the
most important consideration throughout the enquiry, bearing
on the
other considerations and, in turn, being coloured by them.
Furthermore, other than is the case in some comparable
jurisdictions, no formal line is drawn in our law between
particular time spans regarded as acceptable and those that do not

pass muster. Our approach, rather, is to make a flexible
evaluation of the time elapsed in the context of and in conjunction

with all other relevant features of the case, starting with the
nature, gravity and extent of the prejudice suffered, or likely
to
be suffered, by the accused.” (Footnotes omitted.)
79
[2000] 4 All SA 561
(A).
80
Id at paras 44 and 46.
81
Naidoo and Others v National Director of Public Prosecutions and
Others
[2003] 4 All SA 380
(C).
82
Id at 392H.
83
Above n 8.
84
Id at paras 7-8.
85
Id at para 16.
86
Id at para 21.
87
Broome v Director of Public Prosecutions, Western Cape, and
Others; Wiggins and Another v Acting Regional Magistrate, Cape Town,

and Others
2008 (1) SACR 178
(C).
88
The applicants were denied requested access to the
documents in 1995 and 1996. In 1997, the investigative office in
charge of
the matter released a report disclosing the alleged
offences and identifying the applicants as parties implicated in the
fraudulent
behaviour. Id at paras 10-6.
89
Above n 87 at para 75.
90
Id at para 71.
91
McCarthy
above n 79 at para 46.
92
See
Sachs J in
S v Coetzee and Others
[1997] ZACC 2
;
1997 (4) BCLR 437
(CC);
1997 (3) SA 527
(CC) at para 220:
“
There
is a paradox at the heart of all criminal procedure, in that the
more serious the crime and the greater the public interest
in
securing convictions of the guilty, the more important do
constitutional protections of the accused become. The starting

point of any balancing enquiry where constitutional rights are
concerned must be that the public interest in ensuring that

innocent people are not convicted and subjected to ignominy and
heavy sentences, massively outweighs the public interest in

ensuring that a particular criminal is brought to book. Hence the
presumption of innocence, which serves not only to protect
a
particular individual on trial, but to maintain public confidence
in the enduring integrity and security of the legal system.

Reference to the prevalence and severity of a certain crime
therefore does not add anything new or special to the balancing

exercise. The perniciousness of the offence is one of the givens,
against which the presumption of innocence is pitted from
the
beginning, not a new element to be put into the scales as part of a
justificatory balancing exercise. If this were not
so, the
ubiquity and ugliness argument could be used in relation to murder,
rape, car-jacking, housebreaking, drug-smuggling,
corruption . . .
the list is unfortunately almost endless, and nothing would be left
of the presumption of innocence, save,
perhaps, for its relic
status as a doughty defender of rights in the most trivial of
cases.” (Footnote omitted.)
93
Carosella
above n 76 at para 105.
94
Smolinski
above n 72
.
95
See
Carosella
above n 76.
96
In the High Court, Mrs Bothma submitted a report
of a criminologist, Dr Sonnekus, which set out to explain that
she
had been inhibited through traumatic bonding with her assailant
from making a complaint against him, and that only counselling
in
the protected environment of prison had enabled her to acknowledge
the manner in which the repeated violations had affected
her life
and self-esteem. The High Court rejected the report in its
entirety, regarding it as hearsay.
In this
Court Mrs Bothma made two applications, first to admit a
supplementary affidavit and then to submit a further supplementary

affidavit. The first application was made on 25 June 2009
and the second on 28 July 2009. The supplementary

affidavit sought to adduce facts regarding the reason for the time
delay in instituting private prosecution. It dealt with
the
perceived culpability on the part of Mrs Bothma as found by
the High Court, and also contended further that Mrs Bothma

would also suffer trial prejudice due to the long delay.
The second
supplementary affidavit included a report by, Mr Swanepoel, a
psychiatrist, who gave his professional opinion
that Mrs Bothma
presented psychological conditions consistent with those suffered
by victims of childhood sexual abuse,
and that it was clinically
well established that such victims may continue to hold themselves
responsible for having been violated
for many years afterwards.
97
The Legal Resources Centre is a not-for-profit organisation that
specialises in constitutional litigation.
98
Counsel stated from the bar that an order as to costs had been made
against Mrs Bothma in relation to her unsuccessful attempt
to
have the evidence of Dr Sonnekus admitted, but that Mr Els
had abandoned these costs.
99
Affordable Medicines Trust and Others v Minister of Health of RSA
and Another
[2005] ZACC 3
;
2005 (6) BCLR 529
(CC);
2006 (3) SA
247
(CC) at para 138.
100
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (8) BCLR
771
(CC);
2002 (5) SA 401
(CC).
101
Laugh It Off Promotions CC v SAB International (Finance) BV t/a
Sabmark International and Another
[2005] ZACC 7
;
2005 (8) BCLR
743
(CC);
2006 (1) SA 144
(CC).
102
Biowatch Trust v Registrar, Genetic Resources and Others
[2009]
ZACC 14
, Case No 80/08, 3 June 2009, as yet unreported at para 23.
103
Campus Law Clinic (University of KZN Durban) v
Standard Bank of SA Ltd and Another
[2006]
ZACC 5
;
2006 (6) BCLR 669
(CC);
2006 (6) SA 103
(CC) at para 28.
104
[2007] ZACC 5
;
2007 (7) BCLR 691
(CC);
2007 (5) SA 323
(CC).
105
Id at para 90.