The government does not oppose writing out the 20-year prescription regarding sexual assault offences in the Criminal Procedure Act (CPA), but only for offences committed against children.
This was the argument posited yesterday by lawyers representing Justice Minister Michael Masutha in the high court in Joburg.
This relates to the case brought by lawyers representing eight people alleging to have been sexually violated by late billionaire Sidney Frankel over two decades ago, who seek an amendment to the CPA writing out the time limits for survivors to lay cases against alleged perpetrators.
The attorney for the so-called Frankel 8, Ian Levitt, said they want section 18 of the CPA to be declared unconstitutional, “so that if any sexual offence takes place, the survivor would be able to go court at any time and prosecute the perpetrator”.
Levitt added that the amendment could be known as “Frankel Law” if the high court gives the order and the Constitutional Court ratifies it.
The minister is not contesting this aspect of the case as it pertains to child complainants.
However, rights groups Women's Legal Centre, the Teddy Bear Clinic and Lawyers for Human Rights - acting as friends of the courts - want this prescription to be written out for adults as well, saying there are “no rational distinctions between sexual offences” and that none should be prescribed.
This was the bone of contention for the minister, with State attorney Johan van Schalkwyk saying a sweeping cover for all sexual offences would be problematic because, when the act was promulgated in 1997, different sexual offences each had their own punishments and sentences.
“You must understand that there are some ‘lesser’ crimes, such as kissing, that have not been categorised in terms of the statute. And previously there were various sentences for these offences. Now you want to put all those offences in one basket,” Van Schalkwyk contended. “So does that now mean if you kiss someone indecently, you should get the minimum sentence of 15 years That is why we need to narrow it down according to factual (merits) of this case.”
The merits of this case, as argued by advocate Anton Katz for the Frankel 8, relate only to children, as the eight survivors were minors when the alleged sexual violations took place in the 1980s.
Katz is seeking a costs order against the minister, but not against the first respondent, which is the estate of Frankel. Judge Clare Hartford reserved judgment on both the amendment and the costs order.