Rape survivor in fight to change law on civil damages claims

Almost 40 years after she was brutally gang raped, one woman’s quest for justice has placed her at the centre of a bold new bid to do away with legislation that puts a time cap on suing sexual offenders for damages.

Late last year, the woman – identified only as “AR” in court documents – approached the KwaZulu-Natal High Court in Durban with a civil suit against two of six men she says held her in a bedroom and raped and assaulted her for hours on end while she was at a party in late 1981. The other four men, she says, were unknown to her.

She was around 18 years old at the time and says she was “degraded and humiliated” and left with “significant impairment to her personality and psyche” as well as “extremely poor self-esteem” and depression in the wake of her ordeal. And she now wants R600,000 in damages.

But the men – who are identified as “AB” and “AN” and deny the allegations against them – have asked the court to throw the claim out on the basis that the Prescription Act only gives litigants in these kinds of cases up until three years after the fact to take civil action.

She in turn is challenging the constitutionality of the act.

The act makes an exception for survivors of sexual offences in that the clock doesn’t start ticking if they are unable to institute proceedings because of “mental or intellectual disability, disorder or incapacity, or any other factor the court deems appropriate”, but they have to be able to show this in court.

AR maintains she was, indeed, unable but her position is that she shouldn’t have to explain herself in court. In her filings, she highlighted “the unique features of sexual offences”, including the “cultural and social myths and attitudes surrounding sexual offences including secrecy, fear and shame” and the way these impacted on a survivor’s decision to pursue legal action.

“The manner and extent to which each of these features impacts a plaintiff’s ability and/or decision to disclose and initiate legal process will differ in each individual case,” she said.

AR is being represented by the Women’s Legal Centre. Her advocate, Bronwyn Pithey, this week told The Citizen there simply wasn’t always a psychological or emotional reason that a survivor didn’t pursue legal action at the time.

“Sometimes, the reason people don’t want to proceed is, for example, because they know their families won’t manage it,” Pithey said.

In her view, the exceptions provided for in the act didn’t go “far enough”.

“What it does is place what we call an ‘evidentiary burden’ on the plaintiff. Before a survivor can start engaging with the merits of the matter, she’s got to show she was unable. And we say placing that extra burden on sexual violence survivors is unconstitutional.”

In 2018, the Constitutional Court set aside sections of the Criminal Procedure Act which prevented the National Prosecuting Authority (NPA) from criminally prosecuting most sexual offences committed more than 20 years ago.

This was on the back of a case brought by a group of eight men and women who alleged they had been molested by well-known local billionaire the late Sidney Frankel in the ’70s and ’80s. They initiated criminal proceedings against him several years later but the NPA declined to prosecute him because the charges had prescribed.

As a result of that case, there is now no prescription in place for the criminal prosecution of sexual offences.

Pithey said this week they were hoping for a similar ruling in relation to civil cases of this nature.

“We’re saying the same should be for a civil case, there shouldn’t be any hoops people have to jump through,” she said.

In October 2018, AR reported her ordeal to the police and Pithey said that they were still waiting to hear from the NPA if a prosecution would go ahead.