Johannesburg - A woman who was allegedly gang raped by six men in 1981 is out to get justice in the form of payment, but the Prescription Act stands in her way.
“AR”, as she is identified in court papers, has now launched an application intended to have the prohibitive sections of the Prescription Act of 1969 declared unconstitutional and invalid.
She initially instituted civil action for delictual damages against two men identified as being involved in the sexual assault she suffered at the age of 18.
But “AB” and “AN”, as they are named in papers, maintained in their legal papers on January 12 this year that her claim was prescribed in terms of sections of the Prescription Act.
The cited sections stipulate that payment of a debt becomes extinguished by prescription after a number of years.
Represented by the Women’s Legal Centre, AR has now fought to have the Prescription Act sections declared unconstitutional. Her application cited both her alleged rapists and the Minister of Justice as respondents.
A matter that is bound to end up in the Constitutional Court, her legal team will try to convince courts that the prohibitive sections of the act have no place in a just society.
Her legal papers say: “The plaintiff pleads that section 10 of the Prescription Act is inconsistent with the Constitution of the Republic of South Africa, invalid and unenforceable to the extent that it extinguishes debts based on the alleged commission of any sexual offence in terms of the common law or statute after the lapse of a fixed period.”
The filed papers add that applying the Prescription Act in debts relating to alleged sexual offences unjustifiably limits the right to have disputes heard in a fair, public court.
“In addition, sections 10, 11 and 12 of the Prescription Act are irrational and arbitrary to the extent that they extinguish the right of a survivor of a sexual offence to pursue a civil claim under the common law against the perpetrator, when the Criminal Procedure Act provides that the right to institute a prosecution in respect of a sexual offence does not lapse,” said AR’s notice.
The woman pressed criminal charges about two years ago against AB and AN as she began seeking justice.
“We still haven’t had a response from the National Prosecuting Authority as to whether they are going to proceed with the prosecution,” said Women’s Legal Centre attorney Bronwyn Pithey yesterday.
The Star