The 20-year limit on criminally charging someone for sexual assault was declared inconsistent with the Constitution in the High Court in Johannesburg by acting Judge Claire Hartford in Johannesburg on Monday.
This closed the door, in particular, on paedophiles who have often relied on time and a child’s memory to shield them from criminal action, Women and Men against Child Abuse director Miranda Friedman said.
“For me, very personally, I hope this sends a very strong message out to paedophiles – too many have been able to get away because of this clause. This is a momentous occasion for children’s rights,” Friedman said.
Hartford herself was unavailable to read her groundbreaking order into the record, which was done by Judge Roland Sutherland on her behalf.
The court action that led to Hartford’s order was brought by Nicole Levenstein, Paul Diamond, George and Katherine Rosenberg, Daniela McNally, Lisa Wegner, Shane Rothquel and Marinda Smith – the so-called Frankel Eight – who claimed they were sexually by prominent Johannesburg businessman Sydney Frankel up to 30 years ago.
Frankel died before he could contest the charges.
Ian Levitt, attorney for the Frankel Eight, said he was extremely happy with the outcome of the proceedings, which were uncontested at the final hearing by either the minister of justice or Frankel’s legal team.
“The order encompasses all sexual abuse, whether of children or adults, and declares the inability to prosecute after a 20-year period invalid. So anyone who is sexually abused at any stage will now have the right to prosecute those abusers that abused them above and beyond 20 years before, and this carries on into the future.”
Levitt said the order had to be confirmed by the Constitutional Court, and hoped to have it there in this week for a date to be set later this year.
Hartford suspended the declaration of invalidity for 18 months to allow Parliament “to remedy the constitutional defect”.
Levitt said the Frankel Eight were ecstatic.
“This is a massive victory for children, this is a massive victory for survivors of abuse, this is really massive for those survivors who have never had a voice, who have to to get redress from the law which said, ‘Sorry, we protect the perpetrator more than we can give you justice.’”
Friedman was not worried about a possible flood of false allegations.
“We’ve seen about 21 500 children at our clinics. In all our 17 years I’ve probably had one child who was coaxed by her mother on one hand and her father on the other, but it was basically a custody battle where the child was used as a pawn,” said Friedman.
“Children don’t lie about something which happened to them. They may not always remember all the details, but by putting yourself out there, whether you’re a child or an adult, about something which happened to you so intimately, you know you are going to be questioned, judged, and I don’t see it happening too much.
“You may now be able to open a criminal case. You’re not going to receive special treatment, you’re still going to have to go up to three and a half years through the judicial process, so no, I don’t anticipate it.
“I think a lot of people will feel, should they want to, they have choices, and I think that is very important,” said Friedman.