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[2018] ZACC 16
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Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others (CCT170/17) [2018] ZACC 16; 2018 (8) BCLR 921 (CC); 2018 (2) SACR 283 (CC) (14 June 2018)
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Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 170/17
In the matter between:
NICOLE
LEVENSTEIN
First Applicant
PAUL
DIAMOND
Second Applicant
GEORGE
ROSENBERG
Third Applicant
KATHERINE
ROSENBERG
Fourth Applicant
DANIELLA
MCNALLY
Fifth Applicant
LISA
WEGNER
Sixth Applicant
SHANE
ROTHQUEL
Seventh Applicant
MARINDA
SMITH
Eighth Applicant
and
Estate of the late SIDNEY LEWIS
FRANKEL
First Respondent
MINISTER OF JUSTICE
AND CORRECTIONAL
SERVICES
Second Respondent
DIRECTOR OF PUBLIC PROSECUTIONS,
GAUTENG
Third Respondent
TRUSTEES FOR THE TIME BEING OF
THE WOMEN’S LEGAL CENTRE
TRUST
Fourth Respondent
TEDDY BEAR
CLINIC
Fifth Respondent
LAWYERS FOR HUMAN
RIGHTS
Sixth Respondent
Neutral citation:
Levenstein and Others v Estate of the Late Sidney Lewis Frankel
and Others
2018 ZACC 16
Coram:
Zondo ACJ,
Cameron J, Froneman J, Jafta J,
Kathree Setiloane AJ, Kollapen AJ, Madlanga J,
Mhlantla J,
Theron J and Zondi AJ
Judgments:
Zondi AJ (unanimous)
Heard on:
14 November 2017
Decided on:
14 June 2018
Summary:
Criminal Procedure Act 51 of 1977
— constitutionality of
section 18
—
section 18
is unconstitutional
Prescription of the right to institute
prosecution for sexual offences other than rape or compelled rape —
bar to prosecution
after twenty years since commission of offence —
section 18
distinguishes between rape or compelled rape and other
sexual offences for purposes of prescription —
section 18
is
irrational and arbitrary
ORDER
On application for
confirmation of the order of the High Court of South Africa,
Gauteng
Local Division, Johannesburg (Hartford AJ):
1.
The declaration of constitutional invalidity of
section 18
of the
Criminal Procedure Act 51 of 1977
made by the High Court of South
Africa, Gauteng Local Division, Johannesburg is confirmed.
2.
The order is suspended for 24 months from the date of this order to
afford Parliament
an opportunity to enact remedial legislation.
3.
During the period of suspension
section 18(f)
of the
Criminal
Procedure Act is
to be read as though the words “and all other
sexual offences whether in terms of common law or statute”
appear after
the words “the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
, respectively”.
4.
Should Parliament fail to enact remedial legislation within the
period of suspension,
the interim reading-in remedy shall become
final.
5.
The declaration of invalidity is retrospective to 27 April 1994.
6.
The first respondent’s appeal against the costs order of the
High Court is dismissed
with no order as to costs.
7.
The second respondent is to pay the costs of the confirmation
proceedings.
JUDGMENT
ZONDI AJ (Zondo ACJ,
Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ,
Kollapen AJ,
Madlanga J, Mhlantla J and Theron J
concurring):
Introduction
[1]
The issue in this matter relates to the constitutionality of
section 18 of the Criminal Procedure Act
[1]
(CPA), which provides that the right to institute a prosecution for
all sexual offences other than rape or compelled rape is limited
to a
period of 20 years from the time when the offence was committed.
The High Court of South Africa, Gauteng Local
Division,
Johannesburg (High Court) declared section 18 constitutionally
invalid “to the extent that it bars, in all circumstances,
the
right to institute a prosecution for all sexual offences, other than
those listed in section 18(f), (h) and (i), after the
lapse of a
period of 20 years from the time when the offence was committed”.
[2]
That order is before this Court for confirmation in terms of
section 172(2) of the Constitution.
[3]
There are also two further matters that need to be resolved in
these proceedings. First is the application by the fourth
respondent, the Women’s Legal Centre Trust (WLC) to
adduce further evidence. The second is an appeal by the
first
respondent, the Estate of the Late Sidney Lewis Frankel (Estate)
against the costs order of the High Court.
[2]
I must emphasise that although this judgment accepts that all
sexual offences are equally serious and that the harm they all cause
is significantly serious, this matter is not about the magnitude of
sentences that must be imposed on those convicted of such offences.
Rather, it is about the constitutionality of the distinction that
section 18 draws between rape or compelled rape, and other sexual
offences for purposes of prescription.
[3]
The application for confirmation arises from a refusal by the
third respondent, the Director of Public Prosecutions, Gauteng (DPP)
to prosecute the late Mr Sydney Lewis Frankel whom the
applicants allege sexually assaulted them in and around Johannesburg
more than 20 years ago when the applicants were between the ages of 6
and 15. The DPP declined to prosecute Mr Frankel on
the ground
that the crimes he was accused of having committed occurred more than
20 years earlier and that section 18 of the CPA
bars the right to
institute prosecution for such crimes.
[4]
The confirmation proceedings raise three interrelated
questions. The first is whether section 18 of the CPA is
inconsistent
with the Constitution. The second, which arises
only if section 18 is inconsistent with the Constitution, relates to
the
appropriate relief; whether the declaration of invalidity should
be suspended with or without an interim reading-in and whether
it
should apply prospectively or retrospectively. The third
relates to the question of costs in this Court.
Parties
[5]
The eight applicants are adult males and females who all
allege that they were sexually assaulted by Mr Frankel when they were
children.
[6]
The first respondent is the Estate which substituted Mr
Frankel after his death in April 2017, before the hearing in the High
Court.
The second respondent is the Minister of Justice and
Correctional Services (Minister).
[7]
The fourth to sixth respondents are the WLC, Teddy Bear Clinic
(TBC), and Lawyers for Human Rights (LHR). These respondents
were amici in the High Court.
Background and litigation history
[8]
During the period between 1970 and 1989, when the applicants
were aged between 6 and 15 years old, Mr
Frankel
is alleged to have sexually assaulted them. As a result
of the alleged sexual assaults, the applicants claim to have suffered
physical, emotional, and psychological trauma. The effect of a
20-year prescription period imposed by section 18, for all
sexual
offences other than rape or compelled rape meant that the right to
prosecute Mr Frankel for the sexual assaults he allegedly
perpetrated
against the applicants prescribed between 1998 and 2011. The
applicants allege that they did not institute criminal
proceedings
against Mr Frankel within the period prescribed by section 18 because
of lack of full appreciation of the nature and
extent of the criminal
acts allegedly perpetrated on them by him. They say they
acquired full appreciation of the nature
of these criminal acts,
allegedly committed, between June 2012 and June 2015 and that it
was only then that they instituted
civil and criminal action against
him. The DPP, however, declined to prosecute Mr Frankel on the
ground that the right to
prosecute him for the alleged offences had
prescribed in terms of section 18.
[9]
The applicants thereafter approached the High Court and
challenged the constitutionality of section 18 of the CPA. They
sought,
amongst other things, two main prayers. First, an order
declaring that section 18 is inconsistent with the Constitution and
invalid to the extent that it bars, in all circumstances, the right
to institute a prosecution for all offences as contemplated
by the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
[4]
(SORMA) other than rape or compelled rape, after the lapse of a
period of 20 years from the time when the offence was committed.
Second, they sought an order directing the DPP to consider
prosecuting Mr Frankel for the offences he was alleged to have
committed. The applicants submitted that there is no rational
basis for distinguishing rape or compelled rape from other
forms
of sexual offences. They contended that section 18 is
irrational and arbitrary and therefore unconstitutional and invalid,
in that the distinction it seeks to make is based on the perceived
seriousness of the offences and their impact on the survivors.
They further contended that it unjustifiably violates their rights to
human dignity, equality and non-discrimination, to be protected
from
abuse as children, to be free from all forms of violence from both
public, and private sources and access to courts.
[10]
Mr Frankel resisted the application contending, first, that
the applicants had failed to establish the constitutional invalidity
of section 18. Second, he contended that the applicants had not
addressed the issue of retrospectivity in relation to the
operation
of the order of constitutional invalidity, as such order would
necessarily operate retrospectively to allow the DPP to
reconsider
his or her decision not to prosecute him. Instead, Mr Frankel
argued, the applicants based their case on the constitutional
invalidity of SORMA, which came into force on 16 December 2007 and
therefore section 18 would be constitutionally invalid as of
this
date. As a result, Mr Frankel contended that the
applicants would not be able to obtain relief in relation to the
alleged criminal offences which took place approximately 30 years
ago. Mr Frankel’s defences prompted the applicants
to
amend their notice of motion by seeking an order declaring that
section 18 was invalid to the extent that it bars, in all
circumstances,
the right to institute a prosecution for all sexual
offences suffered by children, other than rape or compelled rape,
after the
lapse of a period of 20 years from the time the offence was
committed. Pursuant to this amendment, in January 2017 Mr
Frankel
withdrew his opposition to the relief sought in prayer 1 of
the notice of motion but persisted in opposing the relief sought in
prayer 2 based on the principle of legality, which is the position he
maintained until his demise in April 2017 shortly before
the hearing
of the matter in the High Court.
In the High Court
[11]
Notwithstanding the agreement between the applicants and Mr
Frankel, that the relief sought should be confined to children, the
High Court held that there were no reasons to do so. It
concluded that the relief should apply to child and adult survivors
of sexual assaults. The High Court based its conclusion on two
grounds. First, it reasoned that section 18(f) itself
does not
make a distinction between children and adults and it would be
nonsensical for the Court to artificially confine the relief
to
children only, when section 18(f) does not impose any such
restriction. Second, the common law crime of indecent
assault does not make such distinction either; indecent assault can
be committed against both adults and children. The Court
therefore accepted that the broader relief, as framed by the amici,
was the most appropriate relief to grant, should section 18
be
declared unconstitutional and invalid.
[5]
[12]
The High Court, after analysing the historical development of
section 18 and the extent to which it affects the discretionary
powers
of the National Prosecuting Authority (NPA), concluded that
there was no rational basis for distinguishing rape or compelled rape
from other sexual offences for purposes of prescription. That
conclusion was based on the expert evidence presented, detailing
the
reasons why there is often delayed disclosure relating to
all
sexual offences and not just rape or compelled rape.
The Court accepted expert evidence in this regard, and held that
even
though the reasons for delayed reporting only relate to children –
delayed disclosure or reporting stems from all forms
of abuse and
therefore these traumatic symptoms and pressures apply equally to
adult survivors of sexual abuse.
[6]
[13]
The High Court held that it was entirely irrational and
arbitrary to create a random cut-off period of 20 years for
prescription
of sexual offences, when there is a sufficient body of
evidence demonstrating that these offences inflict deep continuous
trauma
on survivors. Many survivors suffer quietly and either
never disclose the offences at all, with the perpetrator escaping all
consequences, or disclose over varying lengths of time after the
offences were committed.
[7]
[14]
The High Court also held that the exclusion contemplated in
section 18 breaches the survivors’ rights to dignity and
equality.
[8]
[15]
In addition, the High Court dealt with the question whether
prosecuting Mr Frankel for offences which occurred more than 20
years earlier would have violated the principle of legality which is
specifically confirmed in section 35(3)(l)
[9]
and section 35(3)(n)
[10]
of the Constitution. The principle of legality prevents
arbitrary punishment and ensures that criminal liability accords
with
clear and existing rules of law. The Court held that the
principle of legality was not compromised as the acts allegedly
committed by Mr Frankel constituted indecent assault, which was a
common law offence at the relevant time. Therefore,
the
High Court reasoned, the declaration of invalidity operating
retrospectively would not result in the criminalisation of conduct
that was not already criminal when the alleged offences were
committed.
[11]
[16]
The High Court accordingly made the declaration of invalidity,
suspended it, and made an interim reading-in. The relevant
terms of the order read:
“1.
It is declared that section 18 of the [CPA], is inconsistent with the
Constitution
. . . and invalid to the extent that it bars, in all
circumstances, the right to institute a prosecution for all sexual
offences,
other than those listed in sections 18(f), (h) and (i),
after the lapse of a period of 20 years from the time when the
offence
was committed.
2.
The declaration of constitutional invalidity in paragraph 1 above is
suspended
for a period of 18 months in order to allow Parliament to
remedy the constitutional defect.
3.
Pending the enactment of remedial legislation by Parliament, or the
expiry of
[18 months] . . . , whichever is sooner, section 18(f) of
the [CPA] is to be read as though the following words ‘and all
other sexual offences, whether in terms of common law or statute’
appear after the words ‘the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
, respectively’.
4.
The costs of this application shall be paid jointly and severally by
the first
respondent and the second respondent until 20 January 2017,
including the costs of two counsel, after which date the costs shall
be paid solely by the second respondent.”
[12]
Proceedings in this Court
[17]
In this Court, the applicants seek confirmation of the
declaration of invalidity. They do not, however, support the
confirmation
of paragraphs 2 and 3 of the High Court order.
The WLC supports the declaration of invalidity and its confirmation
but
with a reading-in to render
section 18
constitutionally
compliant. It does not support the suspension of the
declaration of constitutional invalidity. The
WLC also seeks to
introduce new evidence which it contends will show that the reason
for delayed disclosure in relation to all
sexual offences and not
just in relation to those of rape or compelled rape is the same in
respect of all survivors of sexual assault
whether they are children
or adults. It further contends that the new evidence
demonstrates that the differentiation which
section 18
seeks to make
between rape or compelled rape and other sexual offences for the
purposes of prescription is irrational.
[18]
The TBC and the LHR support confirmation of the order on the
terms contended for by the applicants.
Application by the WLC
[19]
Before addressing the merits of the appeal, it is necessary to
dispose of an application by the WLC to adduce further evidence that
it contends will assist this Court in determining the impact of
section 18
of the CPA. The new evidence sought to be admitted
consists of reports published by reputable inter governmental
and
non governmental organisations, as well as state agencies.
It is directed at the impact of sexual offences on adult
survivors and includes the personal, structural and social
disincentives for reporting, as well as the psychological and
physical
reasons for delayed disclosure.
[13]
[20]
The WLC provides three additional grounds on which it contends
the distinction between rape or compelled rape, and all other sexual
offences, in
section 18
is irrational. Firstly, it points
out that the prime rationale for the differentiation between sexual
offences in
section 18
is that certain sexual offences are more
serious than others and the perceived harm or moral gravity of sexual
offences in this
context is clearly linked to the penetrative or
non-penetrative nature of the offence. It contends that there
is no factual
basis or policy reasons to support this view.
Secondly, the WLC says the exclusion of certain offences, and
not others, from
prescription creates an artificial distinction
between sexual offences, when in fact, the context and consequences
of these offences
are substantially the same. It argues that to
the extent that the Legislature considered it necessary for certain
offences
to be excluded from prescription in order to achieve the
objects of SORMA and to protect vulnerable groups, such a rationale
must
apply to all sexual offences.
[21]
Thirdly, the WLC contends that the differentiation of sexual
offences for prescription purposes fails to give recognition to the
fact that the survivors of all sexual offences are faced with similar
personal, social and structural disincentives to reporting
the
offence committed against them which leads to delayed and
under reporting of all sexual offences.
[22]
Rule 31
of this Court’s Rules permits any party to any
proceedings before the Court including a properly admitted amicus
curiae “to
canvass factual material which is relevant to the
determination of the issues before the Court and which does not
specifically
appear on the record” provided that “such
facts are common cause or otherwise incontrovertible; or are of an
official,
scientific, technical or statistical nature capable of easy
verification”.
[23]
This Court in
Prince
held that, where the new evidence
sought to be canvassed is disputed, it undoubtedly demonstrates that
the new evidence is not
“capable of easy verification”
and similarly is not incontrovertible.
[14]
[24]
The evidence which the WLC seeks to introduce should be
admitted. None of the parties objected to its admission. The
new evidence, which is entirely uncontested, sets out the effect of
rape trauma on adult survivors reporting sexual assault and
getting
support thereafter. It is the only evidence we have that
relates to adult trauma syndrome. The findings of
this Court on
the nature and extent of rape trauma syndrome would be a welcome
addition to this Court’s jurisprudence since
its judgment in
Bothma
.
[15]
Moreover in order to consider the full extent of the impact of
section 18
, and whether it serves an important public interest, it is
necessary to have information on the prevalence of sexual offences
against
women in South Africa and the percentage of female survivors
of sexual offences who elect not to formally report the offences to
the South African Police Service (SAPS) and why they do not do so.
This is what the new evidence seeks to highlight. For
instance the new evidence shows that in the “Victims of Crime
Survey 2015/2016”, a report by Statistics South Africa,
only
35.5 percent of survivors reported sexual offences to SAPS, which is
quite alarming.
[16]
Failure to report crimes to the police in general and in
particular those involving sexual violence undermines the efforts
of
the government to combat and ultimately eradicate the scourge of
sexual offences.
Applicants’ submissions
[25]
The applicants support the reasoning of the High Court
regarding the finding of constitutional invalidity of
section 18
, but
not the portion of the order suspending the declaration of
invalidity.
[26]
The applicants contend that
section 18
is an absolute bar to
prosecuting sexual offences other than those listed in
section 18
which were committed more than 20 years earlier, notwithstanding
the seriousness of the offence, the extent of the infringement
of
rights, and the complex psychological factors that cause a delay in
reporting. As a result of this bar, the NPA’s
power to
institute criminal proceedings in terms of section 179(2) of the
Constitution
[17]
read with the National Prosecuting Authority Act
[18]
is limited. And this limitation is arbitrary and unjustifiable,
and thus unconstitutional.
[27]
The lack of rationality, it is contended, is evinced by the
following. Although rape is the “most reprehensible form
of sexual assault”, as noted by this Court in
Masiya
,
[19]
other forms of sexual abuse also constitute “a humiliating,
degrading and brutal invasion of the dignity and the person of
the
survivor”.
[20]
Sexual abuse in all forms, not only rape, infringes the survivor’s
right to bodily and psychological integrity.
[21]
The applicants submit that the state has a duty in terms of section
7(2) of the Constitution to respect, promote and fulfil
this right,
which they contend it failed to perform by placing a time-bar on the
prosecution of sexual abuse, other than rape and
compelled rape.
[28]
As for the accused’s right to a fair trial,
[22]
the applicants contend that striking down section 18 will not
preclude an accused from raising the delay as a reason for a
permanent
stay of prosecution. Furthermore, they contend that
if the impugned section was expanded to include all forms of sexual
assault,
the accused’s right to a fair trial would still be
protected, even before the trial phase, as the NPA would retain the
discretion
on whether to prosecute based on various factors,
including the length of the delay and the availability of evidence.
[29]
With regards to the suspension of the declaration of
invalidity, the applicants contend that there is no basis for doing
so. On
invalidity coupled with a reading-in, the applicants
argue that such remedy is “technically flawed”.
This is
so, argue the applicants, because if Parliament fails to
enact remedial legislation during the period of suspension, the
declaration
of invalidity becomes operative without the words that
have been read in. This would not be just and equitable.
The
applicants call for a declaration of invalidity coupled with a
“reading-in” without suspending the order.
[30]
Further, although the applicants initially sought a
declaration that was limited to sexual offences committed against
children,
they support the reasoning of the High Court for wider
relief. As regards the date on which the declaration of
invalidity
should be effective, the applicants contend that it should
apply retrospectively to 4 February 1997, the date on which
the Constitution came into effect. Their alternative contention
is that in any event, retrospectivity should apply in the
present
matter as the declaration of invalidity does not have the effect of
creating a new crime. It only removes the limitation
on the
right to prosecute that is afforded to the NPA. But, in
argument before us, counsel for the applicants in reply argued
that
the declaration of invalidity should have an indefinite retrospective
effect so as to apply to sexual offences that had already
prescribed
by 27 April 1994.
[31]
Lastly, on the issue of costs, the applicants abide the
decision of this Court on the costs appeal by the Estate. But
they
seek costs from the Minister for this confirmation application.
First respondent’s submissions
[32]
The first respondent does not oppose nor make any submissions
concerning the application for confirmation of the order of
constitutional
invalidity. Nor does it oppose the application
to adduce further evidence.
[33]
However, the Estate appeals in terms of rule 16(2) of this
Court’s rules against the costs order of the High Court. This
will be expanded on further, later in the judgment.
Second respondent’s submissions
[34]
The Minister supports the application for confirmation of the
declaration of invalidity and generally supports the submissions of
the applicants, but rejects the applicants’ opposition to the
suspension of the declaration of invalidity with an interim
reading-in. Further, the Minister calls for a longer suspension
period to allow Parliament to effect remedial legislative
amendments.
[35]
The Minister concedes that the High Court was correct in
declaring section 18 invalid, but on a slightly different
basis.
The Minister contends that section 18 creates two
broad categories of sexual offences: the first category comprises
rape or
compelled rape, and using a child or mentally disabled
person for pornographic purposes; and the second category is all
other
sexual offences. The first category is not subject to the
20-year time-bar, whereas the second is and there appears to be
no
rationale for this distinction, nor has any explanation been given.
In the absence of a rational explanation, the Minister
contends that
section 18 is irrational in so far as it imposes a time-bar on the
second category of sexual offences.
[36]
As for remedy, the Minister contends that the applicants’
rights, and those of others in their position, will be fully
vindicated
by confirming the High Court’s order. But he
says no prejudice will be caused by the suspended declaration coupled
with an interim reading-in which is consonant with this Court’s
approach in
Gaertner
.
[23]
Lastly, the Minister opposes the costs appeal by the Estate.
Fifth respondent’s submissions
[37]
The TBC focuses on the state’s higher duty to protect
children, particularly in “silent communities” and
“failed
systems of care”.
[38]
The TBC avers that the state’s duty in section 7(2) of
the Constitution encompasses a duty
[24]
“to take legislative and other measures to protect vulnerable
groups, such as children, from the violation of their rights”,
taking into account that the child’s best interests is of
paramount importance in every matter concerning the child.
[25]
The TBC argues that despite the operation of the Children’s
Act
[26]
and SORMA, which seek to protect children from maltreatment, neglect,
abuse, and degradation, the state has failed to ensure the
constitutional validity of section 18 in recognition of the child’s
right to be protected from these horrors, or alternatively,
has
failed to develop section 18(f) adequately in line with the
values of the Constitution.
[39]
The TBC contends that there is a higher duty to protect
children in failed systems of care facilities, places of safety, and
insular
communities, as they face the risk of being harmed in such
places. It points out that in many instances survivors are
coerced
into silence by the perpetrator and the community or the
facility may prevent them from speaking due to their dependency for
care.
The TBC argues that prescription on prosecution of sexual
offences does a disservice to society as it promotes secondary
violation and victimisation of the most vulnerable groups by not
allowing justice to be seen to be done.
Sixth respondent’s submissions
[40]
LHR submits that the 20-year period is in itself arbitrary and
irrational, as it has been adopted from Roman-Dutch law principles
–
codified in the 17th century – and the fact that the period has
not changed over centuries is indicative of the arbitrary
development
of the contents of section 18. It further argues that there is
no genuine rationale for this period within modern
constitutional
criminal law, as the usual justification for prescription in criminal
cases is the availability of clear and best
evidence which is often
not relevant to the prosecution of sexual offences. It reasons
that in the absence of physical evidence,
the prosecution of sexual
offences simply relies on the testimony of the complainant and
alleged offender. In turn, where
there is physical evidence,
there is then no need for the 20-year prescription period in light of
technological advances in forensics
and evidence gathering. The
LHR therefore contends that it would be “absurd” to have
a serial sexual offender
escape criminal liability, where there is
clear evidence (such as DNA evidence) linking the perpetrator to the
offence, because
a period of 20 years has lapsed.
Is section 18 irrational and
arbitrary?
[41]
Before dealing with the irrationality and arbitrariness of
section 18, it is necessary to say something about its historical
development.
[42]
The origin of the statutory 20-year prescription period in
section 18 can be traced back to the common law.
[27]
In terms of the common law, all offences prescribed after a
period of 20 years from the commission of the offence.
[28]
The common law position existed until it was altered by section
21 of the Cape Ordinance,
[29]
which provided that a prosecution for a crime of murder would not be
barred as a result of a lapse of time. But the 20-year
prescription period in relation to all other offences remained
unchanged under the Criminal Procedure Act 31 of 1917 and the
Criminal
Procedure Act 56 of 1955 (the old CPA).
[43]
The CPA altered the position. It extended the crimes
which would not be barred by the lapse of time to those “in
respect
of which the sentence of death may be imposed”.
In its original form section 18(1) of the CPA provided:
“The right to
institute a prosecution for any offence, other than an offence in
respect of which the sentence of death may
be imposed, shall, unless
some other period is expressly provided by the law, lapse after the
expiration of twenty years from the
time when the offence was
committed.”
[44]
It is apparent from the historical development of section 18
that the Legislature under the old CPA specifically identified murder
as the crime in respect of which the right to prosecute would not
prescribe. In the 1977 CPA the Legislature employed a different
marker to delineate the crime or crimes in respect of which
prescription would not bar a prosecution. The marker used is
the reference to all offences “other than the offences [in
respect] of which the sentence [of death] may be imposed”.
The preceding statutory history shows us that when the Legislature
enacted the CPA, it was aware of the fact that from time to
time the
list of offences in respect of which the death sentence was competent
had changed and would in all probability change
in the future.
When section 18 was enacted, offences that could attract the death
penalty and which were excluded from prescription
were, among others,
rape, murder and treason.
[45]
In 1997, as a result of the judgment of this Court in
Makwanyane
in which the death penalty was declared
unconstitutional,
[30]
section 18 was amended by the Criminal Law Amendment Act,
[31]
to include a list of offences that were particularly serious.
[32]
These offences were excluded from the 20-year prescription period.
SORMA, which came into effect on 16 December 2007,
broadened the
ambit of section 18 of the CPA by extending the definition of rape to
include all forms of sexual penetration; and
adding the offences of
compelled rape and using a child or person who is mentally disabled
for pornographic purposes. These
are the offences to which the
20-year prescription period does not apply.
[46]
Section 18 now reads:
“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.”
It is apparent that currently
section 18
deals selectively with survivors of sexual violence. It
precludes some survivors of sexual offences from access to criminal
legal recourse, while protecting others.
[47]
The question is whether
section 18
, by treating the survivors
of sexual violence selectively, is irrational as contended for by the
parties. This calls for
the critical examination of the means
chosen by Parliament to determine whether these means are rationally
related to the objective
it sought to achieve. This is so
because, although Parliament has authority to make laws it is
required to exercise that
power within the law; it cannot act
irrationally. This Court held in
Law Society of South
Africa
:
“A convenient
starting point in evaluating these submissions is to restate, albeit
tersely, the rationality standard that
may be culled from the
decisions of this court. The constitutional requirement of
rationality is an incident of the rule
of law, which in turn is a
founding value of our Constitution. The rule of law requires
that all public power must be sourced
in law. This means that
[s]tate actors exercise public power within the formal bounds of the
law. Thus, when making
laws, the legislature is constrained to
act rationally. It may not act capriciously or arbitrarily.
It must only act
to achieve a legitimate government purpose. Thus,
there must be a rational nexus between the legislative scheme and the
pursuit
of a legitimate government purpose. The requirement is
meant ‘to promote the need for governmental action to relate
to
a defensible vision of the public good’ and ‘to enhance
the coherence and integrity’ of legislative measures.”
[33]
(Footnotes omitted.)
[48]
The question whether a legislative provision is rationally
related to a given governmental object entails an objective enquiry.
The test is objective because otherwise a decision that, viewed
objectively, is in fact irrational—
“might pass
muster simply because the person who took it mistakenly and in good
faith believed it to be rational. Such
a conclusion would place
form above substance and undermine an important constitutional
principle.”
[34]
[49]
The Minister, on whom the onus lies to justify the rationality
of section 18, concedes that the exclusion of sexual offences
(other than rape or compelled rape) from the definition of offences
that do not prescribe in terms of section 18, was not informed
by the
government purposes underpinning SORMA. These are to: afford
complainants of sexual offences the least traumatising
protection the
law can provide; introduce measures which seek to enable the relevant
organs of state to give full effect to the
Act; and combat and
ultimately eradicate the high incidence of sexual offences committed
in the Republic. The Minister points
out that given the serious
nature of all sexual offences and the vulnerability of survivors of
such offences, any policy position
that seeks to distinguish between
penetrative and non-penetrative sexual offences in relation to
section 18, cannot pass constitutional
muster.
[50]
When rape or compelled rape was excluded from the reach of the
prescription period of 20 years, this was not done for the purposes
of protecting and advancing the interests of the survivors of sexual
offences.
[51]
The primary rationale for differentiation between sexual
offences in section 18 seems to be based on a consideration that
certain
sexual offences are more serious than others. This idea
is seriously disputed by the WLC. It contends that there is
no
factual basis or policy reasons to endorse the view that penetrative
sexual offences are more traumatic than non-penetrative
sexual
offences and the assumption that certain sexual offences are more
morally offensive than others is imbued with outdated,
patriarchal
ideas about the moral gravity and harmfulness of different sexual
offences. The WLC says there is a significant
body of evidence
which shows that that assumption is incorrect. In its written
submissions in this Court the WLC points out
that all sexual offences
occur within the same social and political context and the survivors
of these offences are faced with
similar personal, social and
structural disincentives to reporting the offences committed against
them.
[52]
In these circumstances the use of prescriptive periods in
section 18 as a basis to distinguish between rape or compelled rape
and
other forms of sexual assault when the harm they all cause to
their survivors is similar, is irrational. Enacting legislation
involves the exercise of public power and that being the case the
Legislature is required to act in a rational manner when it exercises
its legislative power. The section, by over-emphasising the
significance of the nature of the criminal act at the expense
of the
harm that it produces to the survivors, fails to serve as a tool to
protect and advance the interests of survivors of sexual
assault. It
works against their interests instead of promoting them. The
criminal justice system should play a role
that supports the
survivors of crimes involving sexual violence and create mechanisms
that would encourage them to come forward
more so in view of the fact
that such crimes have become prevalent these days.
[53]
I agree with the TBC that the prescription period of 20 years
imposed by section 18 is insufficiently cognisant of the nature
and process of sexual assault disclosure. This sentiment is
also shared by the WLC. According to the WLC there are
numerous
reasons why adult survivors choose to report the sexual offence
against them after a long period of time. Personal
circumstances of the survivor may change; with time comes maturity
and an ability to process the trauma suffered as a result of
the
violence. She may seek out psychological help, such as
counselling, which empowers her to enter the criminal justice
system.
The WLC points out that survivors develop resilience over time,
and together with resolution of the trauma are able
to report the
matter to the police or the survivor may change communities with
which she engages which may be more accepting of
women who are
sexually abused. She may have a supportive partner later on in
life who believes her and supports and encourages
her to report to
the police. Someone else may report a sexual offence committed
by the same perpetrator which may give the
survivor courage to
report.
[54]
It is apparent that section 18 is out of touch with the
development regarding the application of prescription in relation to
sexual
offences, which has taken place since the judgment of the
Supreme Court of Appeal in
Van Zijl
[35]
and as developed by this Court in
Bothma
.
[36]
The Supreme Court of Appeal in
Van Zijl
held that the purpose
of prescription is to penalise unreasonable inaction, and not
inability to act.
[37]
This Court in
Bothma
appreciated the positive
development that has taken place in the past two decades regarding
the willingness of the survivors of
sexual assault to come forward
about their past.
[38]
In these days survivors of sexual assault feel empowered to
come to grips with and denounce sexual abuse they had suffered
as
children.
[39]
They have become more informed about their condition and rights
and have received support from public interest groups. There
is
healing power in groups. The survivors find solace in each
other’s words; they feel more empowered to bare their
souls and
relate their painful experiences. The Supreme Court of Appeal
in
Van Zijl
accepted that rape had the inherent effect of
rendering child survivors 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.
[40]
What was said by the Supreme Court of Appeal in
Van Zijl
and
by this Court in
Bothma
applies with equal force to survivors
of all forms of sexual violence though it was made in the context of
rape. The effect
of section 18 is that it penalises even a
complainant whose delay was caused by or due to his or her inability
to act by preventing
him or her from pursuing a charge even if he or
she may have a reasonable explanation for the delay. Once a
20 year
prescription period has expired that is the end of the
matter for the complainant.
[55]
The evidence before us reveals what countless women and
children face. It illuminates the systemic failures that enable
violence
and exploitation of them to occur. Ms Dey, on behalf
of the WLC explained that to think of sexual violence as merely
unwanted
sexual conduct is to miss the point. Rather, it is “by
its very nature . . . intentionally designed to produce
psychological trauma”.
[56]
Of pivotal importance to the case before us is this: that the
systemic sexual exploitation of woman and children depends on
secrecy,
fear and shame.
[41]
Too often, survivors are stifled by fear of their abusers and the
possible responses from their communities if they disclose
that they
had been sexually assaulted. This is exacerbated by the fact
that the sexual perpetrator, as the applicants allege
Mr Frankel to
have been, is in a position of authority and power over them.
They are threatened and shamed into silence.
These
characteristics of sexual violence often make it feel and seem
impossible for victims to report what happened to friends
and loved
ones – let alone state officials. Combined with this is
the frequent impact of deeply-located self-blame,
which, as the
Supreme Court of Appeal recognised in
Van Zijl
, disables the
victim from appreciating that a crime has been committed against her
for which the perpetrator, and not she, is responsible.
[42]
[57]
All these features of survival of sexual trauma make it
rational to be reluctant to report and to avoid reporting. And
this
is before even considering the effect of rape trauma syndrome,
the now recognised patterns of emotional, physical, cognitive and
behavioural disturbances that approximately one in three survivors of
sexual assault develop.
[43]
Even if a survivor is fully aware that she was abused, she naturally
weighs up the possibility of reprisals from the perpetrator
together
with the possible lack of support from the police and statistically
small eventuality that reporting will actually, eventually,
result in
a conviction in a criminal court.
[44]
[58]
The evidence before us consistently shows that only one in
three rape survivors seek assistance from formal social systems.
[45]
Once a person takes the decision to report, the police, the NPA and
the courts have a duty to investigate, prosecute and
adjudicate the
complaint with due regard to the hurdles overcome before reporting.
All this means that the decision not to
disclose or report, for any
length of time, cannot determine the question of guilt or innocence
in the case against the perpetrator.
[59]
In conclusion, it is clear from the preceding analysis that
there is no rational basis for the right to prosecute to lapse after
20 years in respect of other forms of sexual offences, and not for
rape or compelled rape. Sexual offences may differ in
form but
the psychological harm they all produce may be similar.
[60]
Section 18 also undermines the state’s effort to comply
with its international obligations. South Africa is a party to
a number of core international human rights treaties, including the
Convention on the Elimination of Discrimination against Women
and the
Convention on the Rights of the Child. At the regional level,
South Africa is, among others, party to the Protocol
to the
African Charter on Human and People’s Rights on the Rights of
Women in Africa. These instruments impose a duty
on the state
to prohibit all gender-based discrimination that has the effect or
purpose of impairing the enjoyment by women of
fundamental rights and
freedoms and to take reasonable and appropriate measures to prevent
the violation of these rights.
[46]
[61]
Section 39(1)(b) of the Constitution enjoins a court to
consider these instruments when interpreting the Bill of Rights.
[47]
Whether the declaration of
constitutional invalidity will affect the right to a fair trial of an
accused implicated in offences
that occurred more than 20 years
earlier
[62]
Section 35(3)(l) of the Constitution recognises the principle
of legality, namely that the accused may not be found guilty of a
crime unless the type of conduct with which he or she is charged was
recognised by the law as a crime at the time it was committed.
This Court in
Masiya
applied this principle when it set aside
the conviction for rape imposed by the Regional Court and replaced it
with one of indecent
assault. This Court stated the following:
“Section
35(3)(l) of the Constitution confirms a long-standing principle of
the common law that provides that accused persons
may not be
convicted of offences where the conduct for which they are charged
did not constitute an offence at the time it was
committed. Although
at first blush this provision might not seem to be implicated by
finding Mr Masiya guilty of rape in
this case, because the act he
committed did constitute an offence both under national law and
international law at the time he
committed it, in my view, the
jurisprudence of this Court would suggest otherwise.
. . .
The strong view of
legality adopted in
Veldman
suggests that it would be unfair
to convict Mr Masiya of an offence in circumstances where the conduct
in question did not constitute
the offence at the time of the
commission. I conclude so despite the fact that his conduct is
a crime that evokes exceptionally
strong emotions from many quarters
of society. However, a development that is necessary to clarify
the law should not be
to the detriment of the accused person
concerned unless he was aware of the nature of the criminality of his
act. In this
case, it can hardly be said that Mr Masiya was
indeed aware, foresaw or ought reasonably to have foreseen that his
act might constitute
rape as the magistrate appears to suggest. The
parameters of the trial were known to all parties before the Court
and the
trial was prosecuted, pleaded and defended on those bases.
It follows therefore that he cannot and should not bear adverse
consequences of the ambiguity created by the law as at the time of
conviction. The evidence adduced at the trial established
that
Mr Masiya was guilty of indecent assault. To convict him of
rape would be in violation of his right as envisaged in
section 35(3)(l) of the Constitution. I conclude therefore
that the developed definition should not apply to Mr Masiya.”
[48]
(Footnotes omitted.)
[63]
In
Savoi
this Court held that the rule against
retrospectivity was no longer a tool of interpretation but rather
constituted a fundamental
right not to be subjected to retrospective
provisions.
[49]
[64]
The High Court, relying on
Bothma
,
[50]
held that an accused’s right to a fair trial would be no more
prejudiced in a prosecution after 20 years for sexual offences,
than
his rights in a prosecution after 20 years for rape or compelled
rape. This conclusion was predicated on a finding that
rights
to a fair trial, coupled with the state’s discretion on whether
to prosecute based on the cogency and reliability
of the evidence at
its disposal, would serve to reduce any prejudice an accused person
might have experienced as a result of a
delay in prosecution beyond
20 years.
[51]
[65]
I agree with the High Court’s conclusion. On the
facts presented by the applicants, Mr Frankel could have been
prosecuted
for the common law offence of indecent assault as that was
the crime at the time it was committed. The declaration of
invalidity
of section 18 does not therefore give rise to a new act
which was not unlawful at the time it was committed.
Remedy
[66]
It remains to consider an appropriate remedy. The
constitutional invalidity of section 18 arises from that portion
which bars,
in all circumstances, the right to institute a
prosecution for all sexual offences, other than those listed in
section 18(f), (h)
and (i), after the lapse of a period of 20 years
from the time when the offence was committed. In terms of
section 172(1)
of the Constitution,
[52]
a declaration to that effect must be made, including any order that
is just and equitable. The offending portion of section 18
must be struck down. That leaves the question whether the
portion of section 18 should be struck down with immediate
effect or should be suspended to allow Parliament to enact remedial
legislation. Related to this question is the question
as to
when the order of invalidity shall take effect.
[67]
This Court has said on many occasions that in granting
appropriate relief, and making an order that is just and equitable
under
section 172(1)(b), it is imperative that where possible and
appropriate, successful litigants should obtain the relief they
seek
[53]
and that that relief should be effective. As Ackermann J
reasoned in
Fose
:
“This brings
me to the final and most debated question, namely whether in the
present case any additional amount of punitive
constitutional damages
can be awarded to the plaintiff over and above the amounts he would
be entitled to recover for patrimonial
loss, pain and suffering, loss
of amenities,
contumelia
and other general damages. Given
the historical context in which the interim Constitution was adopted
and the extensive violation
of fundamental rights which had preceded
it, I have no doubt that this Court has a particular duty to ensure
that, within the bounds
of the Constitution, effective relief be
granted for the infringement of any of the rights entrenched in it.
In our context
an appropriate remedy must mean an effective remedy,
for without effective remedies for breach, the values underlying and
the rights
entrenched in the Constitution cannot properly be upheld
or enhanced. Particularly in a country where so few have the
means
to enforce their rights through the courts, it is essential
that on those occasions when the legal process does establish that an
infringement of an entrenched right has occurred, it be effectively
vindicated. The courts have a particular responsibility
in this
regard and are obliged to ‘forge new tools’ and shape
innovative remedies, if needs be, to achieve this goal.”
[54]
(Footnote omitted.)
[68]
These are not the only considerations that should be taken
into account. Other considerations, too, are relevant to
determining
what is just and equitable. Where possible, relief
should not only be granted to the applicants before a court, but to
all
those similarly situated to the applicants. Ordinarily, an
order of invalidity should have no effect on cases which have been
finalised prior to the date of the order of invalidity. But in
situations where retrospectivity is to be applied, the court must
consider the potential disruption and uncertainty that such an order
could occasion.
[69]
The High Court, after declaring section 18 constitutionally
invalid, suspended the declaration of invalidity for a period of 18
months in order to allow Parliament to remedy the constitutional
defect. It directed that pending the enactment of remedial
legislation by Parliament, or the expiry of a period of 18 months
whichever is the sooner, section 18(f) is to be read as though
the
following words “and all other sexual offences, whether in
terms of the common law or statute” appear after the
words “the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
, respectively”.
[70]
Although the applicants seek confirmation of the declaration
of invalidity, they do not support the consequential orders made by
the High Court. The first respondent does not oppose the
application for confirmation as well as the consequential orders.
The Minister supports the application for confirmation of the
declaration of invalidity and the consequential orders of the High
Court.
[71]
The question therefore is whether the declaration of
invalidity should be suspended. The Constitution expressly
permits courts
to suspend an order of invalidity.
[55]
When a court does so, the effect of the order is to permit the
unconstitutional provision to continue to operate pending
the end of
the suspension period. In other words, the impugned provision
continues to operate for a limited period. The
applicants’
opposition to the suspension of the declaration of invalidity is
anchored on three pillars. The first is
based on a need to
obtain effective relief which the applicants contend would not be
achieved if the declaration of invalidity
were to be suspended.
The second pillar is that there is no evidence that the declaration
of invalidity without suspension
would disrupt the administration of
justice.
[72]
This Court in
Gaertner
held that in
deciding whether to suspend a declaration of invalidity a court must
consider the interests of a successful litigant
in obtaining
immediate constitutional relief and the potential disruption of the
administration of justice that would be caused
by the lacuna.
[56]
Absence of disruption to administration of justice is, however, not
decisive. In
Dawood
this Court held that where a range
of possibilities exist, and a court is able to offer appropriate
interim relief to affected
persons, it will ordinarily be appropriate
to leave the Legislature to determine in the first instance how the
unconstitutionality
should be cured.
[57]
This Court emphasised that it should be slow to make choices which
are primarily choices suitable for the Legislature.
[58]
This principle was affirmed in
Teddy Bear Clinic
.
[59]
This is particularly true for this case where there are numerous
sexual offences which are subject to a 20 year prescription
period.
[73]
It seems to me that a proper balance can be struck by
suspending a declaration of invalidity and ordering an interim
reading in.
Suspension coupled with an interim reading-in
is a remedy that does not intrude unduly into the domain of
Parliament.
It is a remedy that gives recognition to the need
to respect the separation of powers and in particular the role of
Parliament
as the institution constitutionally entrusted with the
task of enacting legislation.
[60]
Such a remedy will prevent uncertainty by avoiding the
piecemeal judicial amendment of legislation. It is a remedy
that will allow Parliament to conduct the thorough process of
consideration and constitutionally required consultation to properly
cure the constitutional defect. This is the remedy which in my
view is just and equitable.
[74]
The third pillar of the applicants’ objection to
suspension of the declaration of invalidity is based on the
Minister’s
failure to explain what he has done to have the
constitutional defect remedied. The contention is that this
Court should
not suspend the order in circumstances where the
Minister has not accounted for the failure to correct the defect in
the section.
While I accept that there has been a delay on the
part of the Minister to remedy the constitutional defect of the
impugned
provision, I do not agree that the delay is unreasonable and
that it provides a sufficient basis to not suspend the constitutional
invalidity of the order. In the explanatory affidavit deposed
to by Mr Bassett on behalf of the Minister, the latter
points
out that the South African Law Reform Commission has over the years
been assisting his department with empirical research
on how best to
infuse the changing norms, values and interests of society with the
pre-1994 statutory framework and its recommendations
have led to the
amendment of, among others, the CPA and the enactment of SORMA. He
points out further that that a further
amendment in relation to
aligning section 18(h) of the CPA with the new offences relating to
the trafficking of children, and the
inclusion of offences relating
to torture, are under consideration. This explanation is
reasonable and it was therefore a
prudent thing for the Minister to
wait for this Court’s confirmation before taking steps to
rectify the impugned provision.
In
Auction Alliance
this
Court held that suspension is not an exceptional remedy.
[61]
It made it clear that suspension is an obvious use of its remedial
power under the Constitution to ensure that just and equitable
constitutional relief is afforded to litigants while ensuring that
there is no disruption of the regulatory aspects of the statutory
provision that is invalidated.
[62]
[75]
The Minister has requested that a declaration of invalidity be
suspended for 24 months to enable Parliament to enact remedial
legislation. I do not think that the period sought by the
Minister can be said to be unreasonably long to enact a statute
which
will be constitutionally compliant having regard to the sensitivity
of the impugned provisions and the need to obtain the
views of
various public interest groups on the extent of the amendment of
section 18. This Court in
Teddy Bear Clinic
held that in
a participatory democracy, Parliament is best-suited to ensure that
the ultimate statutory regime is decided upon
in an open, inclusive
and transparent manner, with all relevant parties who so desire being
given an opportunity to shape the debate
and the eventual
outcome.
[63]
Another consideration is that the suspension would not cause the
applicants or similarly situated survivors of sexual assault
any
prejudice as the suspension order is coupled with an interim
reading-in.
[76]
And should Parliament fail to enact remedial legislation
within 24 months from the date of this order without seeking and
obtaining
an extension, the interim reading in remedy will
become final.
[77]
The next issue for consideration is the date from which the
declaration of invalidity should run. Section 18 was
substituted
by section 27(1) of the Criminal Law Amendment
Act.
[64]
Although the Act came into operation on 13 November 1998,
section 27 was deemed to have come into operation on
27 April 1994.
The declaration of invalidity should therefore apply retrospectively
to 27 April 1994, which is
the date on which the interim Constitution
came into operation.
[65]
It is not contended that the declaration of invalidity with
retrospective effect has a potential to cause unnecessary dislocation
and uncertainty in the administration of justice.
[66]
[78]
I therefore conclude that the order of the High Court is just
and equitable.
Costs in this Court
[79]
These are proceedings which have been brought to this Court in
terms of section 167(5) of the Constitution.
[67]
The applicants submitted that the Minister must pay the costs of
confirmation proceedings. The Minister disagrees and
cites
recent decisions in which costs were only awarded where the
confirmation was opposed.
[68]
The Minister contends that each party should pay its own costs in
this matter as he does not oppose confirmation. The
applicants
successfully challenged the constitutionality of section 18 of the
CPA in the High Court where they were awarded costs.
It is the
norm to award costs in favour of a successful applicant for a
confirmation and there is no reason why this principle
should not
apply in this matter. The fact that the Minister has not
opposed the confirmation proceedings does not in itself
provide a
sufficient basis for this Court to deviate from this principle.
In the circumstances the Minister should pay the
costs of the
confirmation proceedings.
Appeal against costs order by the
Estate
[80]
The Estate is appealing against the costs order of the High
Court in terms of which that Court ordered it to pay costs jointly
and
severally with the Minister until 20 January 2017,
including the costs of two counsel, after which date the costs were
ordered to be paid solely by the Minister. The Estate
challenges this order. It contends that the High Court
misdirected
itself for three reasons.
[81]
Firstly, the Estate contends that the application primarily
concerned the constitutional validity of an Act of Parliament and
thus
the litigation was primarily between the applicants and the
Minister. Secondly, the Estate contends that although Mr
Frankel
initially opposed the application, this was on a legal,
principled basis as the initial relief was incompetent in so far as
it
did not include common law crimes. This was amended to
include such offences and thus, the Estate contends, Mr Frankel was
partially successful in his opposition. Lastly, the Estate
contends that the High Court erred in disregarding an agreement
in
terms of which the applicants waived their right to seek costs
against the Estate. In doing so, argues the Estate, the
Court
acted contrary to the
pacta sunt servanda
principle
[69]
(the principle that agreements are binding and must be enforced)
which it contends it was only entitled to deviate from if enforcing
the agreement would be unfair or unjust.
[70]
[82]
The alternative ground is that the High Court misdirected
itself in the exercise of its discretion when applying the
Biowatch
[71]
principles pertaining to costs in constitutional litigation.
[83]
The Minister opposes the appeal by the Estate on the grounds
that Mr Frankel actively opposed the application right until his
death and his opposition was only withdrawn thereafter. Thus
his Estate should bear the costs as ordered. As for the
agreement between the applicants and the Estate, the Minister submits
that the High Court was correct in disregarding it.
The High
Court’s ruling in this regard is not without authority.
This Court noted in
Malachi
that—
“[t]his Court
is, however, not bound by that agreement. Costs are a matter
which lies entirely within the discretion
of this Court, to be
exercised with due regard to the particular circumstances of each
case.”
[72]
[84]
Relying on this dictum the Minister submits that this Court
cannot be bound by the agreement between the applicants and the
Estate
regarding costs. In the alternative, the Minister
submits that should this Court find that the applicants have indeed
waived
their right to claim costs as per the agreement, this Court
should direct that the Minister is liable for only 50 percent of the
costs incurred up until 20 January 2017.
[85]
The award of costs is a matter within the discretion of the
court. The discretion inherent in the decision to award costs
is one that must be exercised judicially having regard to all the
relevant considerations.
[73]
An appeal court will only interfere with the exercise of that
discretion if it is demonstrated that it has not been exercised
judicially or has been exercised based on a wrong appreciation of the
facts or wrong principle of law.
[86]
The question is whether the High Court breached the principle
of
pacta sunt servanda
when it refused to uphold the
agreement and ordered the Estate to pay costs. It is correct
that the general principle is that
courts will enforce contracts
between private parties which are entered into freely and
voluntarily, and as long as their objective
terms are consistent with
public policy.
[74]
It must be accepted that the agreement on costs liability concluded
between the applicants and the Estate cannot be said
to be in any way
against public policy. It may be enforceable at the instance of
an aggrieved party. The difficulty
for the Estate is that we
are concerned here with a contract, the application of which goes
beyond the confines of the primary
parties. Its terms affect
the rights of the litigants who are not parties to the agreement.
The High Court was
therefore correct in holding that it was not
bound by the agreement entered into between the applicants and the
Estate in relation
to costs where the agreement affected third
parties, such as the Minister. The Minister was a party to the
proceedings and
for that reason his consent had to be secured for the
conclusion of the agreement that sought to settle the disputed issues
between
the parties. It is not in dispute that the Minister had
not agreed to the conclusion of the agreement by which it was sought
to settle liability for costs between the applicants and the Estate.
Liability for costs was an issue in which the Minister
had a
substantial interest. This ground of appeal should therefore
fail.
[87]
The alternative argument advanced by the Estate is one based
on the
Biowatch
[75]
principle. The contention is that this application is not one
of private litigation in which the ordinary rules pertaining
to costs
orders apply. The Estate argues it is a matter of
constitutional litigation, which therefore means that the High
Court’s discretion on costs must be exercised in accordance
with the special rules relating to costs in constitutional litigation
and where necessary, to adapt substantially the common law rules
relating to costs. In relation to the approach to the exercise
of discretion in constitutional litigation in which the state is a
primary role-player this Court in
Biowatch
had this to say:
“[T]he
general point of departure in a matter where the [s]tate is shown to
have failed to fulfil its constitutional and statutory
obligations,
and where different private parties are affected, should be as
follows: the [s]tate should bear the costs of litigants
who have been
successful against it, and ordinarily there should be no costs orders
against any private litigants who have become
involved. This
approach locates the risk for costs at the correct door – at
the end of the day, it was the [s]tate
that had control over its
conduct.”
[76]
[88]
The Estate’s reliance on the
Biowatch
principle
is misplaced. Mr Frankel was not the party that initiated
the proceedings in which the constitutionality of
section 18 was
challenged. Mr Frankel was a respondent and he opposed prayer 2
of the notice of motion until
his death on 13 April 2017.
In doing so he was not seeking to promote the advancement of
constitutional justice which is
the conduct that would provide a
basis for not awarding costs against him in the event that he lost in
his constitutional challenge.
He was pursuing his own
self-interest and therefore the
Biowatch
principle does not
protect him against a costs order. In the circumstances the
appeal based on this alternative ground must
also fail.
Order
[89]
In the result, the following order is made:
1.
The declaration of constitutional invalidity of
section 18
of the
Criminal Procedure Act 51 of 1977
made by the High Court of South
Africa, Gauteng Local Division, Johannesburg is confirmed.
2.
The order is suspended for 24 months from the date of this order to
afford Parliament
an opportunity to enact remedial legislation.
3.
During the period of suspension
section 18(f)
of the
Criminal
Procedure Act is
to be read as though the words “and all other
sexual offences whether in terms of common law or statute”
appear after
the words “the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
, respectively.”
4.
Should Parliament fail to enact remedial legislation within the
period of suspension,
the interim reading-in remedy shall become
final.
5.
The declaration of invalidity is retrospective to 27 April 1994.
6.
The first respondent’s appeal against the costs order of the
High Court
is dismissed with no order as to costs.
7.
The second respondent is to pay the costs of the confirmation
proceedings.
For the
Applicants:
A Katz SC instructed by Ian
Levitt Attorneys
For the First Respondent:
S Kazee instructed
by Billy Gundelfinger Attorneys
For the Second Respondent:
S Budlender and P Seseane instructed by the
State Attorney
For the Fourth Respondent:
F Hobden, B Pithey and N Kakaza instructed
by the Women’s Legal
Centre
For the Fifth Respondent:
G Snyman instructed by the
Centre for Applied Legal Studies
For the Sixth Respondent:
A Du Toit instructed by Lawyers
for Human Rights
[1]
51 of 1977.
[2]
NL v Frankel
2017 (2) SACR 257
(GJ) (High Court judgment) at
287.
[3]
Section 172(2) of the Constitution reads:
“
(a)
The Supreme Court of Appeal, the High Court of South Africa or a
court of
similar status may make an order concerning the
constitutional validity of an Act of Parliament, a provincial Act or
any conduct
of the President, but an order of constitutional
invalidity has no force unless it is confirmed by the Constitutional
Court.
(b)
A court which makes an order of constitutional
invalidity may grant a temporary interdict or other temporary relief
to a party,
or may adjourn the proceedings, pending a decision of
the Constitutional Court on the validity of that Act or conduct.
(c)
National legislation must provide for the
referral of an order of constitutional invalidity to the
Constitutional Court.
(d)
Any person or organ of state with a sufficient
interest may appeal, or apply, directly to the Constitutional Court
to confirm
or vary an order of constitutional invalidity by a court
in terms of this subsection.”
[4]
32 of 2007.
[5]
High Court judgment above n 2 at paras 37-41.
[6]
Id at paras 51-2.
[7]
Id at para 67.
[8]
Id at paras 76 and 78.
[9]
Section 35(3)(l) prohibits a conviction for an act or omission that
was not an offence under national or international law at
the time
it was committed or omitted.
[10]
Section 35(3)(n) affords an accused the least severe punishment,
where the prescribed punishment for the offence has changed
between
the commission of the offence and the time of sentencing.
[11]
High Court judgment above n 2 at paras 85-6.
[12]
Id at 287.
[13]
These reports consist of the following:
a.
a South African Police Service publication entitled “An
Analysis of the National
Crime Statistics Addendum to the Annual
Report 2011/2012” dated 31 August 2012;
b.
a report by Gender Links and the Medical Research Council
titled “The War @
Home: Findings of the Gender Based Violence
Prevalence Study in Gauteng, Western Cape, KwaZulu-Natal and Limpopo
Provinces of
South Africa”, published in 2011;
c.
an extract from a Statistics South Africa report, Statistical
Release No. P0341 titled
“Victims of Crime Survey 2015/2016”;
d.
an extract from a Statistics South Africa report titled
“Quantitative Research Findings
on Rape in South Africa”
released in 2000;
e.
a report titled “Report of the Special Rapporteur on Violence
Against Women,
its Causes and Consequences on Her Mission to South
Africa” dated 14 June 2016;
f.
Ullman et al “Psychosocial Correlates of PTSD Symptom Severity
in Sexual Assault
Survivors” (2007) 20
Journal of Traumatic
Stress
821;
g.
Ullman and Filipas “Predictors of PTSD Symptom Severity and
Social Reactions in Sexual
Assault Victims” (2001) 14
Journal
of Traumatic Stress
369;
h.
Patterson et al “Understanding Rape Survivors’ Decisions
Not to Seek Help from
Formal Social Systems” (2009) 34
Health
and Social Work
127;
i.
extracts from a February 2005 report titled “Differentiating
Between
Child Maltreatment Experiences”;
j.
an extract from an article Putnam and Trickett “Psychobiological
Effects
of Sexual Abuse: A Longitudinal Study” (1997) 821
Annals of the New York Academy of Science
150;
k.
and an extract from a report titled “Tracking Justice: The
Attrition of Rape Cases
Through the Criminal Justice System in
Gauteng”, dated July 2008.
All of this material is annexed to the
affidavit of Ms Kathleen Dey, dated 28 July 2017.
[14]
Prince v President, Cape Law Society
of the Cape of Good
Hope
[2002] ZACC 1
;
2002 (2) SA 794
(CC);
2002 (3) BCLR 231
(CC)
at para 10. See also
Prophet v National Director of Public
Prosecutions
[2006] ZACC 17
;
2006 (2) SACR 525
(CC);
2007 (2)
BCLR 140
(CC) at para 33 and
S v Lawrence; S v Negal; S v Solberg
[1997] ZACC 11
;
1997 (4) SA 1176
(CC);
1997 (10) BCLR 1348
(CC) at
para 23.
[15]
Bothma v Els
[2009] ZACC 27; 2010 (2) SA 622 (CC); 2010 (1)
BCLR 1 (CC).
[16]
“Victims of Crime Survey 2015/2016” above n 13 at 13.
[17]
Section 179(2) of the Constitution provides that “[t]he
prosecuting authority has the power to institute criminal
proceedings
on behalf of the state, and to carry out any necessary
functions incidental to instituting criminal proceedings”.
[18]
32 of 1998.
[19]
Masiya v Director of Public Prosecutions, Pretoria
[2007]
ZACC 9
;
2007 (5) SA 30
(CC);
2007 (8) BCLR 827
(CC) at
para 36.
[20]
Id.
[21]
Section 12(2) of the Constitution.
[22]
Section 35(3) of the Constitution.
[23]
Gaertner v Minister of Finance
[2013] ZACC 38
;
2014 (1) SA 442
(CC);
2014 (1) BCLR 38
(CC)
at
paras 82 5.
[24]
In
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
;
2000 (10) BCLR 1051
(CC) at para 40
this Court emphasised that the state is “under a
constitutional duty to take steps to help diminish the
amount of
public and private violence in society generally and to protect all
people and especially children from maltreatment,
abuse or
degradation”. See also
Government of the Republic of
South Africa v Grootboom
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 78 where this Court held that
“[t]his obligation would normally be fulfilled by passing laws
and creating enforcement mechanisms for the maintenance
of
children, their protection from maltreatment, abuse, neglect or
degradation, and the prevention of other forms of
abuse of
children
”.
[25]
Section 28 of the Constitution.
[26]
38 of 2005.
[27]
Du Toit “Prosecuting Authority” in Du Toit et al (eds)
Commentary on
Criminal Procedure Act
Service
57 (2016) at 87
and see generally
S v De Freitas
1997 (1) SACR 180
(C).
[28]
De Freitas
id at 182I-J.
[29]
40 of 1828.
[30]
S v
Makwanyane
[1995] ZACC 3; 1995 (3) SA 391 (CC);
1995 (6) BCLR 665 (CC).
[31]
105 of 1997.
[32]
These offences were murder, treason committed when the Republic is
in a state of war, robbery, if aggravating circumstances were
present, kidnapping, child stealing, or rape.
[33]
Law Society of South Africa v Minister for Transport
[2010]
ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC) at para 32.
[34]
Pharmaceutical Manufacturers Association of South Africa: In re
Ex Parte President of the Republic of South Africa
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 86.
[35]
Van Zijl v Hoogenhout
[2004] ZASCA 84; [2004] 4 All SA 427.
[36]
Bothma
above n 15.
[37]
Van Zijl
above n 35 at para 19.
[38]
Bothma
above n 15 at para 50.
[39]
Id at para 48.
[40]
Van Zijl
above n
35 at paras 7 and 9.
[41]
See generally, an expert report by Muller and Hollely titled “The
Disclosure Process in Cases of Child Sexual Abuse”
dated 2004.
[42]
Van Zijl
above n 35 at paras 12 and 13.
[43]
Ullman et al (2007) above n 13 at 821.
[44]
A 2008 study conducted by Vetten et al titled “Tracking
Justice: The Attrition of Rape Cases through the Criminal Justice
System in Gauteng” above n 13 at 7, found that less than half
of adult women’s reported cases resulted in arrest
and only
one in seven went to trial. Of the total number of
perpetrators of rape of adult women, only 4.7% were convicted.
[45]
Ullman et al (2007) above n 13 at 826.
[46]
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at
para
62.
[47]
S v Baloyi
[1999] ZACC 19
;
2000 (2)
SA 425
(CC);
2000 (1) BCLR 86
(CC)
at para 13.
[48]
Masiya
above n 19 at paras 54 and 56-7.
[49]
Savoi v National Director of Public Prosecutions
[2014] ZACC
5
;
2014 (5) SA 317
(CC);
2014 (5) BCLR 606
(CC)
at
para 78.
[50]
Bothma
above n 15
at para 82.
[51]
High Court judgment above n 2 at paras 81-3.
[52]
Section 172(1)
of the Consitution provides:
“When deciding a constitutional
matter within its power, a court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration
of
invalidity;
and
(ii)
an order suspending the declaration of invalidity for any period
and
on any conditions, to allow the competent authority to correct the
defect.”
[53]
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.
[54]
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 69.
[55]
Section 172(1)(b)(ii) of the Constitution above n 52.
[56]
Gaertner
above n 23
at para 77.
[57]
Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC)
at para
64.
[58]
Id.
[59]
Teddy Bear Clinic for Abused Children v Minister of Justice and
Constitutional Development
[2013] ZACC 35
;
2014 (2) SA 168
(CC);
2013 (12) BCLR 1429
(CC) (
Teddy Bear Clinic
)
at
para 106.
[60]
National Coalition for Gay and Lesbian Equality
v Minister
of Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1)
BCLR 39
(CC) at para 66 and
C v Department of Health and Social
Development
[2012] ZACC 1
;
2012 (2) SA 208
(CC);
2012 (4) BCLR
329
(CC) at para 89.
[61]
Estate Agency Affairs Board v Auction Alliance (Pty) Ltd
[2014] ZACC 3
(CC);
2014 (3) SA 106
(CC);
2014 (4) BCLR 373
(CC)
(
Auction Alliance
) at para 55.
[62]
Id.
[63]
Teddy Bear Clinic
above n 59
at para 109.
[64]
Above n 31.
[65]
Ferreira v Levin NO
and
Vryenhoek v Powell NO
[1996]
ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4) BCLR 441
(CC)
at
para 27.
[66]
S v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995
(4) BCLR 401
(CC)
at para 43.
[67]
Section 167(5) of the Constitution provides that—
“[t]he Constitutional Court makes
the final decision whether an Act of Parliament, a provincial Act or
conduct of the President
is constitutional, and must confirm any
order of invalidity made by the Supreme Court of Appeal, the High
Court of South Africa,
or a court of similar status, before that
order has any force”.
[68]
University of Stellenbosch Legal Aid Clinic v Minister of Justice
and Correctional Services
[2016] ZACC 32
;
2016 (6) SA 596
(CC);
2016 (12) BCLR 1535
(CC) at para 212(9);
McBride v Minister of
Police
[2016] ZACC 30
;
2016 (2) SACR 585
(CC);
2016 (11) BCLR
1398
(CC) at para 57; and
Tronox KZN Sands
(Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal
[2016] ZACC 2
;
2016 (3) SA 160
(CC);
2016 (4) BCLR 469
(CC)
at para 60.
[69]
Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd
[2016] ZACC 33
; (2016) 37 ILJ 2723 (CC);
2016 (12) BCLR 1515
(CC) at para 22 and
Barkhuizen v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at para 10 where the Court
defined the principle as “the common law rule that agreements
are binding and must be enforced”.
[70]
Barkhuizen
id at para 69
.
[71]
Biowatch Trust v Registrar, Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).
[72]
Malachi v Cape Dance Academy International (Pty) Ltd
[2010]
ZACC 24
;
2010 (6) SA 1
(CC);
2011 (3) BCLR 276
(CC) at para 52.
[73]
Affordable Medicines Trust v Minister of Health
[2005] ZACC
3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
at
para 138.
[74]
Barkhuizen
above n 69
at paras 57 and 87.
[75]
Biowatch
above n 71.
[76]
Id at para 56.