Creating a 'random cut-off time' for sexual assault victims is irrational - Frankel 8 lawyer

2017-11-14 22:16
Sidney Frankel was accused of rape and sexual abuse. (Supplied)

Sidney Frankel was accused of rape and sexual abuse. (Supplied)

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Johannesburg – South Africa should never have a situation where perpetrators of sexual offences do not have their day in court because of provisions in the law, the lawyer for the Frankel 8 argued in the Constitutional Court on Tuesday.

"To create a random cut-off time for victims of sexual assault when there is so much evidence to show… is irrational," said Advocate Anton Katz SC.

His clients claimed they were sexually assaulted by late billionaire Sidney Frankel as long ago as 30 years before his death.

They laid criminal charges in 2015, but the case never went ahead due to the "expiry date" on prosecution for these kinds of alleged offences.

Frankel died of cancer in his Johannesburg home on April 13 this year. He was 68.

In June, the high court had declared that section 18 of the CPA was inconsistent with the Constitution and invalid, to the extent that it barred the right to institute a prosecution for all sexual offences - other than those listed in section 18 - after 20 years has passed since the time of the offence.

The court said the declaration of constitutional invalidity had been suspended for a period of 18 months, in order to allow Parliament to remedy the constitutional defect.

Under the present law, the right to initiate prosecution lapses after 20 years for crimes of sexual assault.

This, however, does not apply to other serious offences, like murder, treason, kidnapping, genocide, and rape.

The Frankel 8 approached the Constitutional Court - the highest in the land - to confirm the high court order.

Three of Frankel's alleged victims attended proceedings on Tuesday.

Katz said the three believed that being in court was a healing process in dealing with the trauma of sexual violence.

He painted a picture of what had allegedly happened to the three.

24 months

It emerged that the alleged victims were now pursuing a civil case against him and his estate.

"A civil case that we have against Frankel and his estate is possibly more important to us," one of the alleged victims Shane Rothquel told reporters outside court.

"A lot of our sense of injustice and sense of healing and resolution in this matter, really comes on engaging in the civil matter and the acknowledgement and acceptance from not just him but his estate."

He said they were relieved and felt a sense of justice being served by the high court ruling.

"The bulk of abuse and the damage to our society is happening in homes you will never visit, roads you will never travel down and communities you will never see," Rothquel said.
He, however, said he felt "angry" when he heard arguments from the Correctional Services Minister Michael Masutha's counsel.

Steven Budlender, SC, for Masutha had argued that the minister did not oppose the declaration of invalidity against time limits for prosecuting sexual offences.

"The minister accepts that the provision is unconstitutional and he accepts the confirmation of the high court order."

But he said this should be done within 24 months and not 18 months.

He further argued that there should be a legitimate basis for applying the "time-bar" to certain limited sexual offences.


This includes the so-called “victimless crime” like a sexual act with a corpse or offences such as consensual incest, he said.

Rothquel said this was "ludicrous".

"I felt angry about the minister's argument. I had a sense that Zuma had his hand in it. He tried to downplay it and limit it. It is ludicrous."

"There are thousands of us being abused… what do you need 24 months for?"

He said Frankel's behaviour at the time was wrong and that the continued defence on his estate was "tantamount to protecting him".

Katz argued that Masutha had done nothing since becoming aware of the defect in the law.

"Why haven't they used this time to go to Parliament? Why would they need another 24 months?" he asked.

The court reserved judgment.

Read more on:    johannesburg  |  sexual assault  |  courts

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