Shain Germaner
JOHANNESBURG: An ambitious Constitutional Court application could potentially change the law around indecent and sexual assault, opening the floodgates for victims of child abuse to pursue criminal charges against their violators decades after the abuse.
Yesterday, Ian Levitt Attorneys filed an application calling on the apex court to change the law around prescription for sexual and indecent assault cases.
The application centres on the allegations that well-known philanthropist and stock broker Sidney Frankel abused at least eight men and a woman more than two decades ago when they were children.
The allegations surfaced last year when brother and sister Paul Diamond and Nicole Levenstein called on the public to find other victims of Frankel’s alleged abuse.
The now-eight alleged victims have instituted civil claims against Frankel because they do not have the option to criminally charge him as the sexual crimes act at the time defined what happened to them as indecent assault.
In South African law, such crimes committed more than 20 years ago may not be prosecuted, unlike the charge of rape, which never prescribes.
However, Levitt’s team argues that this is not in line with the constitution and if the crimes had been committed after the Criminal Law Amendment Act of 2007, they would have been classified as rape and therefore never prescribed.
The application’s founding affidavit, written from the perspective of Diamond and the seven other complainants, explains: “It would be unjust and unfair to deprive the victims of such abuse from being able to ensure their perpetrators stand trial, and if convicted, are appropriately punished.”
It further added: “It is of paramount importance to establish a regime against all kinds of sexual violations and sexual assault, but particularly crimes of a sexual nature committed against children as these crimes are regarded as particularly abhorrent in society. It stands to reason that we are not only victims of sexual abuse, but also have to forego justice because of the absolute bar set by section 18 of the Criminal Procedure Act.”
The affidavit also explains why the group has chosen to forego an application at the lower courts. “We simply cannot afford – emotionally and financially – a long, drawn-out process involving a number of courts considering our constitutional complaint, and only thereafter for criminal proceedings to be initiated.”
Attached to the application is an expert report explaining how victims of child abuse would often not report crimes against them – sometimes only decades later – based on numerous factors.
“This is not just about the victims of Sidney Frankel. Every day, adults who were abused as children are having their cases nolle prosequi (thrown out). Every day, perpetrators guilty of these crimes are escaping,” Levitt told Cape Times sister paper The Star.
The application was also served on Justice Minister Michael Masutha, Gauteng Director of Public Prosecutions advocate Andrew Chauke and Frankel.
Billy Gundelfinger, for Frankel, said the matter would be opposed. He declined to comment further, but he has denied the allegations against Frankel.
Lisa Vetten, research associate at Wits University’s Institute for Social and Economic Research, said: “It shows how standards and values have changed over the years, and it could be important for cases that would now be thought of as rapes.”
Regarding the request to directly access the Constitutional Court, Vetten said Frankel’s advanced age would be taken into account on whether the court accepts it.
She also said it was notable that the complainants had expressed how they could not handle a lengthy, multicourt process.