Johannesburg - They may have won the battle on removing the time limit on the prosecution of sexual assault cases, but the "Frankel 8" believe there’s still a long road ahead before justice is truly served.
The group of eight only came together decades after they were allegedly abused as children by philanthropist businessman Sidney Frankel, and were shocked to discover they were unable to criminally charge him for his years of sexual advances.
They have spent more than two years opposing the current legislation around sexual assault, and earlier this year were finally successful in securing a ruling at the Gauteng High Court, Johannesburg, that officially stated the irrationality of section 18 of the Criminal Procedure Act.
This section states that after 20 years, victims of sexual assault - among other sex crimes, excluding rape - may not open up a criminal case more than 20 years after the incidents occur.
While it’s currently up to the Constitutional Court to confirm this order of unconstitutionality, the eight complainants are still searching for a way to make Frankel pay for his alleged crimes - even after his death in April this year.
For Shane Rothquel, who was just 12 and living at one of Frankel’s orphanages when the alleged abuse took place, the businessman’s death in April somewhat soured the victory in the high court just two months later.
If Frankel had survived until June, the group would finally have been able to institute their criminal case against him.
But now, all the complainants are pushing forward with a damages claim against Frankel’s estate, demanding R5 million each for pain and suffering, loss of life amenities, and contumelia (humiliation).
The court proceedings are likely only to take place in 2019, but for the group, it’s the only way to prove Frankel’s misconduct in a court of law.
“The civil suit is not about the money, it’s about some form of redress. The estate must admit what he did was wrong. I’d give up the civil case in a heartbeat if it meant we could have put him in the dock (on criminal charges),” Rothquel said.
For Rothquel, another sticking point has been the way in which Justice Minister Michael Masutha has argued against a blanket removal of prescription (or expiry dates) on all sexual crimes.
This week at the Constitutional Court, the confirmatory application around the high court’s ruling ultimately turned to the details surrounding section 18.
For Masutha, it should be up to Parliament to decide on the seriousness of these dozens of different sex crimes.
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His lawyer, Steven Budlender, used bestiality, necrophilia and adult consensual incest as examples of what he called “victimless crimes”, claiming that such crimes should in fact still prescribe after 20 years. Because of this, Parliament would need 24 months to work on the amendment bill.
Outside of court, three of the Frankel 8, Rothquel, Paul Diamond and Marinda Smith, were all baffled by the minister’s arguments.
Rothquel said he was shocked at Budlender’s three examples of “victimless crimes”, and that by arguing the minutiae of Section 18, they were simply delaying a process that could help victims of abuse.
He also said that by arguing the minutiae of Section 18, the government was delaying a process that could help victims of abuse finally put forward their sex crime cases without any possible retraction of the law from Parliament.
“This crisis is long overdue for attention. Its taken private individuals to force government to change the law. Now they come Johnny-come-lately with their hat in their hand asking for another two years,” he said.
Diamond was relieved that all parties in the case agreed on the removal of prescription, specifically for sexual assault, but added that regardless of the apex court’s ruling, it was not the end of the painful journey for Frankel’s victims.
“We’ve still got our civil case to prepare for. We’re hoping it will come to trial in the middle of next year,” said Diamond.
Smith was particularly wary of the outcome of the Constitutional Court decision, saying she hoped this would allow victims of abuse the freedom they needed to come forward - even decades later.
“How many victims have gone to their graves with secrets like this? How many people committed suicide because of abuse? If it wasn’t for (Frankel 8 lawyer Ian Levitt) and media reports, I never would have been able to open up about this,” she said.
Levitt and advocate Anton Katz have spent the past year arguing for the blanket ruling that all sex crimes - regardless of their supposed seriousness - should be prosecutable without time limits.
During oral arguments at the apex court this week, Katz insisted that a blanket removal of the prescription of sexual crimes was the only course of action - a proposition supported by friends of the court, namely the Teddy Bear Clinic, the Women’s Legal Centre and Lawyers for Human Rights.
According to Katz, waiting for Parliament to amend the act meant possible interference with cases opened during the 18-month period, especially if Parliament decides to apply the new law retroactively.
Despite an impassioned argument, Katz was confronted with a barrage of questions from multiple Justices regarding this logic.
Justice Mbuyiseli Madlanga said it was unlikely Parliament would make a retroactive decision as this in itself would be unconstitutional.
Justice Chris Jafta was also quick to point out that regardless of whether the suspension was set aside, the rights of anyone wanting to open initially proscribed cases since the high court ruling would not be infringed, and understood Judge Clare Hartford’s ruling as applying until Parliament decides otherwise.
Katz also argued that Masutha had failed to initiate the change in legislation, with no indication in his own responding papers that Parliament had started its amendment process at all, despite admitting that Section 18 was irrational and
unconstitutional.
Budlender, in his response, said this was entirely irrelevant and unfounded, and that the minister was entitled to wait until after the legal proceedings before initiating the amendments.
Despite this, Budlender said the Department of Justice had already commenced in determining how to draft the new bill, though this was still at an early stage.
The Constitutional Court reserved judgment.