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The Constitutional Court took a step in the right direction in the reform of sexual offences laws in the case of Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16.

On 14 June 2018, the Constitutional Court found that section 18 of the Criminal Procedure Act 51 of 1977 (CPA) was inconsistent with the Constitution to the extent that it prohibited, in all circumstances, the right to prosecute all sexual offences, other than the offences in section 18(f), (h) and (i) of the CPA, after the lapse of 20 years from the time when the offence was committed.

In essence, Section 18 created an arbitrary distinction between the listed offences (sexual offences of rape, compelled rape, human trafficking and using a child or person who is mentally disabled for pornographic purposes) and those that fell under the common law of South Africa. The result was that the common law offences, which included sexual assault, could not be prosecuted if the offence was committed 20 years prior to the prosecution thereof.

Thus in the Levenstein case, the Constitutional Court’s decision is to the effect that all sexual offences can be prosecuted regardless of the previous statutory limitation in regard to the time of the offence being committed.  In some jurisdictions such as the USA, statutes of limitation in regard to crimes still exist in regard to ‘old’ crimes due to the difficulty in prosecuting such crimes and/or the limitation of state resources.

However, the position in South African law is now clear.

The Constitutional Court afforded Parliament 24 months to enact remedial legislation.

Consequently, during November 2019 Parliament published the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill. (B22 of 2019). The Bill is expected to be passed into law during late 2020.

The Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill contains, inter alia, three proposed amendments to the current applicable legislation, namely:

  • Section 12 of the Prescription Act 68 of 1969, as amended, regulates when prescription in civil matters begins to run.
    • Section 12(4) provides that prescription does not commence in respect of a debt based on the commission of, among others, certain statutory sexual offences during the time in which the victim is unable to institute proceedings because of his or her mental or psychological condition.
  • The Bill further intends to amend the Prescription Act to delay the running of prescription in certain circumstances, eg. where a victim is a minor, is“insane” or is a person under curatorship. In the Levenstein matter supra, the victims of the sexual assault alleged that they did not institute criminal proceedings against the perpetrator within the period of 20 years prescribed by section 18 because of their lack of full appreciation of the nature and extent of the criminal acts allegedly perpetrated on them.
    • The proposed amendment seeks to correct the situation where a sexual assault takes place when the victim is a minor and the minor reaches the age of majority (18 years) but is still then not in a position to institute a claim due to a lack of mental capacity to do so.
  • Section 18 of the CPA regulates the prescription of the right to institute prosecutions after a period of 20 years has lapsed after the alleged commission of certain offences.

A prosecution could, in terms of section 18, only be instituted after a period of 20 years had lapsed after the alleged commission of certain statutory sexual offences.

  • The Bill proposes to amend section 18 of the CPA to include reference to all sexual offences, whether they have been committed under common or statutory law. The result of this amendment is that there will no longer be a distinction between statutory and common law sexual offences for the purposes of prescription.
  • This means an offender could be prosecuted for any sexual offence, statutory or otherwise, regardless of how much time has passed since the crime was perpetrated.