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Andre Mukheibir, Joanna Botha & Gregory Mitchell, The Ticking Clock of Prescription
in Cases of Historical Sexual Abuse, 31 S. AFR. J. CRIM. Just. 361 (2018).

ALWD 7th ed.

Andre Mukheibir, Joanna Botha & Gregory Mitchell, The Ticking Clock of Prescription
in Cases of Historical Sexual Abuse, 31 S. Afr. J. Crim. Just. 361 (2018).

APA 7th ed.

Mukheibir, A., Botha, J., & Mitchell, G. (2018). The ticking clock of prescription in
cases of historical sexual abuse. South African Journal of Criminal Justice, 31(3),
361-390.

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Andre Mukheibir; Joanna Botha; Gregory Mitchell, "The Ticking Clock of Prescription
in Cases of Historical Sexual Abuse," South African Journal of Criminal Justice 31,
no. 3 (2018): 361-390

McGill Guide 9th ed.

Andre Mukheibir, Joanna Botha & Gregory Mitchell, "The Ticking Clock of Prescription
in Cases of Historical Sexual Abuse" (2018) 31:3 S Afr J Crim Just 361.

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Andre Mukheibir, Joanna Botha and Gregory Mitchell, 'The Ticking Clock of
Prescription in Cases of Historical Sexual Abuse' (2018) 31(3) South African Journal
of Criminal Justice 361

MLA 9th ed.

Mukheibir, Andre, et al. "The Ticking Clock of Prescription in Cases of Historical
Sexual Abuse." South African Journal of Criminal Justice, vol. 31, no. 3, 2018, pp.
361-390. HeinOnline.

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Andre Mukheibir, Joanna Botha & Gregory Mitchell, 'The Ticking Clock of Prescription
in Cases of Historical Sexual Abuse' (2018) 31 S Afr J Crim Just 361
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 The ticking clock of prescription
in cases of historical sexual abuse
ANDRE MUKHEIBIR,* JOANNA BOTHA** AND
GREGORY MITCHELL**

ABSTRACT
Rape and sexual abuse infringe a number of fundamental human rights
of victims, in particular the rights to dignity and freedom and security of
the person. Abuse cases are, furthermore, often shrouded in secrecy and
victims may only consider legal action many years after the fact. The crime
of rape does not prescribe, but until recently the sexual abuse other than
rape or compelled rape prescribed after 20 years. In the case of Levenstein
v Estate Frankel (2018 (2) SACR 283 (CC)) the Constitutional Court held
that the prescription period was unconstitutional and should be abolished.
The 'Frankel Eight' intend challenging the prescription periods for delictual
actions. The rules of prescription in delictual cases have already been
relaxed, first by the Supreme Court of Appeal in Van Zijl v Hoogenhout
([2004] 4 All SA 427 (SCA)), and thereafter by the Criminal Law (Sexual
Offences and Related Matters) Amendment Act (Act 32 of 2007), but a victim
would still have to prove that her 'inability' caused the delay in her bringing
the action. It is our contention that, given the debilitating nature of the
harm, the Prescription Act (Act 18 of 1969) should be amended to abolish
prescription altogether for the purposes of delictual actions for both rape
and sexual abuse, because several fundamental rights, in particular the
right to dignity, are infringed. Alternatively, section 12(4) of the Act should
be amended to provide for a broad judicial discretion for determining
whether the victim is able to institute action and whether good cause has
been shown for the delay.

1 Introduction

'... [Tihe systematic sexual exploitation of women and children depends

on secrecy, fear and shame. Too often survivors are stifled by fear of their
abusers and the possible responses from their communities if they disclose
that they had been sexually assaulted. This is exacerbated by the fact that the
sexual predator... is in a position of authority and power over them. They are

* BMus BJuris LLB (UPE) BA(Hons) HDE (Unisa) Dluris (Amsterdam), Professor of
Law, Nelson Mandela University.
BA LLB (Rhodes) LLD (NMMU), Senior Lecturer, Nelson Mandela University.
B Psych (UPE) BA(Hons) (Psych) (UPE) STB (Angelicum) MA (Clin Psych) (NMMU),
Clinical Psychologist and Catholic Priest (Congregation of the Oratory of St Philip
Neri).

361
362 SACJ * (2018) 3

threatened and shamed into silence. These characteristics of sexual violence

often make it seem and feel impossible for victims to report what happened
to loved ones - let alone state officials."

Rape and sexual abuse infringe several fundamental rights of the

victim, especially the right to dignity. Dignity is not only enshrined
as a fundamental right in the Bill or Rights; it is also a value that
underpins the Constitution.
Rape and sexual abuse have been rife in South Africa for many
decades. The press has been reporting horror stories of sexual
violence with frightening regularity.2 Victims have been and still are
loath to report perpetrators, because of feelings of shame, and because
of the fact that the perpetrators usually either deny wrongdoing, or
claim that the conduct was consensual.3 Often the victim is afraid
of retribution by the perpetrator.4 In the case of abuse and rape
of children, many incidents will often only surface years and even
decades later.5 The majority of clergy sexual abuse cases in the Catholic
Church, for example, happened decades ago. 6 Where victims report
incidents of sexual abuse many years after the fact, they are often
asked why they have waited so long, thus casting doubt on the veracity

NL v Estate Frankel 2018 (2) SACR 283 (CC) para [56].

2 C Pitt 'Mortimer Saunders found guilty of rape, murder of 3 year old Courtney
Pieters', News24, 7 November 2018, available at bttps://www.news24.com/
SouthAfrica/News/mortimer-saunders-found-guilty-of-rape-murder-of-3-year-old-
courtney-pieters-20181107, accessed on 8 November 2018; P Mbude 'One child too
many - #TheTotalShutdown protests to support the alleged Dros child rape victim',
W24, 2 October 2018, available at bttps://www.w24.co.za/Wellness/Mind/one-
child-too-many-thetotalshutdown-protests-to-support-the-alleged-dros-cbild-rape-
victim-20181002, accessed on 8 November 2018; C September 'The Anene Booysen
Story', EWN, 1 November 2013, available at https.//ewn.co.za/2013/1O/31/Tbe-
Anene-Booysen-Story, accessed on 8 November 2018. See also N Naylor 'Removing
the prescription blindfold in cases of childhood sexual abuse' 2005 Acta Juridica
227 - 242.
3 See case discussions below.
For example, in the case of former Cardinal McCarrick who sexually abused
seminarians. They were in a vulnerable position as their future as priests could be
affected.
5 W Nortje & P Du Toit 'A fresh perspective on historical sexual abuse: The case
of Hewitt v S 2017 1 SACR 309 (SCA)' (2017) 20 PER / PELJ, doi: http://dx.doi.
org/10.17159/1727-3781/2017/v20iOa2229,accessed on 7 November 2018. See also
the case discussions below and the reports by the John Jay College into sexual
abuse by Catholic Clergy. The first report dates back to 1950: The Nature and Scope
ofSexualAbuse ofMinors by CatholicPriestsand Deaconsin the UnitedStates 1950-
2002 (2004), available at http.//www.usccb.org/issues-and-action/child-and-youth-
protection/upload/The-Nature-and-Scope-of-Sexual-Abuse-of-Minors-by-Catholic-
Priests-and-Deacons-in-the-United-States-1950-2002.pdfaccessed on 2 November
2018.
6 Ibid.
The ticking clock ofprescriptionin cases of
historicalsexual abuse 363

of the accusations. In Botbma v Els (Botbma)7 the Constitutional

Court highlighted the culture of secrecy and denial associated with
these violations. Where the abuser is a family member, a priest or
someone else in a position of trust, the victim is further traumatised
by the betrayal of trust. The psychological impact of abuse on victims
contributes to the secrecy, because, as will be shown below, it renders
the victim almost completely unable to deal with the abuse, let alone
report it.
The Constitutional Court held recently in Levenstein v EstateFrankel8
that s 18 of the Criminal Procedure Act, 9 insofar as it distinguishes
between rape or compelled rape and other sexual offences for purposes
of prescription, is irrational and arbitrary. While s 18 provides that
the crimes of rape and compelled rape do not prescribe, the right to
institute prosecution for sexual offences other than rape or compelled
rape prescribes after 20 years. The 'Frankel Eight', having succeeded
in the Constitutional Court, have taken up the challenge to have the
Prescription Act amended for the purposes of delictual claims.1 0
The prescription rules for claims in terms of the law of delict are
more complex. The Prescription Act 1 was amended1 2 in 2007 to
introduce s 12(4), which provides that prescription does not begin to
run where the victim of certain sexual offences is 'unable' to institute
an action against the perpetrator.1 3 The section gives rise to various
problems. First, like s 18(f) of the Criminal Procedure Act, it only
applies to certain sexual offences and excludes offences such as sexual
assault. Secondly, although the onus lies on the perpetrator to show
that the victim was able to bring the action, proving that a victim is
'unable' presents several challenges. The reality is that the victim will
have to produce some evidence to show that the delay in bringing
the action was as a result of her 'inability'. 4 Given the effect of the
harm suffered, it is submitted that imposing this extra burden on a
victim infringes a number of fundamental rights, especially the right

7 2010 (2) SA 622 (CC).

8 Supra (n1).
9 Act 51 of 1977.
10 LegalBrief 20 August 2018; S Germaner 'Unconstitutional Prescription Act must be
amended - Frankel 8', IOL, available at bttps://www.iol.co.za/saturday-star/news/
unconstitutional-prescription-act-must-be-amended-frankel-8-16623320, accessed
on 8 November 2018.
" Act 68 of 1969.
12 As amended by the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007.
3 See the discussion in par 3.4 below.
Van Zifl v Hoogenbout [2004] 4 All SA 427 (SCA) para [411 referring to Gericke v Sack
1978 (1) SA 821 (A) 827B-828A - the creditor bears an evidential burden in placing
evidence which is in her own exclusive knowledge before the court.
364 SACJ * (2018) 3

to dignity. Furthermore, because proving historical abuse is difficult,

as was seen in Botbma,15 the burden on the victim becomes very
onerous.
The purpose of this article is to show that the existing s 12(4) of
the Prescription Act is unconstitutional to the extent that it creates
an arbitrary distinction between claims based on different types of
sexual offences. The article proceeds to propose that the Prescription
Act be amended to abolish prescription altogether for the purposes
of delictual actions based on sexual abuse, aligning the position in
the law of delict with that of the Constitutional Court in Frankel.
Alternatively, it is argued that s 12(4) of the Act should be amended
to provide a broad judicial discretion to determine whether the victim
is able to institute action and whether good cause has been shown
for the delay. This approach would allow the courts to balance the
respective rights of the victim and the perpetrator, as explained in
more detail below.
In addressing these issues, the impact of abuse on the psyche of
victims is first explored. Then, the South African law of prescription
for civil actions is compared to that in other jurisdictions. These
were chosen to reflect examples of both common law and civil law
positions. The common law jurisdictions were, furthermore, chosen
because they were referenced in the South African decisions.

2 What happens to the victim of abuse - a psychological

perspective
In Van Zijl v Hoogenhout (Van Zil)1 6 the Supreme Court of Appeal
(the SCA) per Heher J held that although it was usual to start with
an exposition of the law, he would instead begin by 'summarising
the uncontested evidence about child abuse and its effects'. In effect
he described the harm suffered by victims of sexual abuse. In the
absence of harm there can be no delictual action. The harm suffered
by abuse victims is a double-edged sword. Apart from the experience
of the harm itself, the symptoms of the harm are of such a nature that
they prevent the victim from confronting the accuser. Often the victim
suffers some form of memory loss which compounds the inability of
the victim to confront the perpetrator.

15 Botbma v Els supra (n7).

16 Van Zijl v Hoogenbout supra (n14).
The ticking clock ofprescriptionin cases of
historicalsexual abuse 365

In Van Zifl the SCA discussed the effects of abuse extensively,

referring to both expert evidence and subject literature. 7 The effects
of sexual abuse include feelings such as extreme shame, guilt and
stigmatisation. Because of these feelings, cases of abuse are shrouded
in secrecy. Victims are often in a state of denial. They are, furthermore,
prone to substance abuse and in extreme cases, self-harm or suicide.18
More recent literature supports the conclusion of the court in Van
Zifl that abuse renders a victim completely unable to confront his or
her abuser.
Reactions to incidents of abuse vary greatly among victims, and many
factors are likely to impact on behaviour and development, especially
of victims who are minors. Such factors include, but are not limited
to, the duration and frequency of the abuse, the use of force, and the
closeness of the relationship of the perpetrator to the victim. 9 The
range of behaviours that might indicate that sexual abuse has taken
place is also vast. In children, age-inappropriate sexual knowledge,
aggressive behaviour, and fearfulness of adults are among some of the
indicators, none of which can definitively prove sexual abuse. In adult
victims, depression, anger and feelings of shame and embarrassment,
as well as fear of retribution, and of being humiliated, are common.20
According to the Diagnostic and Statistical Manual of Mental
Disorders (hereafter referred to as DSM-5), Post-traumatic Stress
Disorder (hereafter referred to as PTSD) could result from sexual
violence in adults, adolescents and children over and under the age
of six.21 Along with traumas such as military combat, captivity and
genocide, the 'highest rates [of PTSD] are found among survivors of
rape'.22
Essential to a diagnosis of PTSD is, inter alia, the presence of intrusion
symptoms that relate to the person's memory of the event. 23 'The
emphasis is on recurrent memories of the event that usually include

17 D Finkelhor and A Browne 'The traumatic impact of child sexual abuse:

A conceptualization' (1985) 55 Am J Orthopsychiatry530-541, quoted in para [9]
of Van Zifl; JA Herman Trauma and Recovery, The Aftermath of Violence - from
Domestic Abuse to Political Terror (1992) (Ch 5, Child Abuse), quoted in para [9]
of the case. Naylor also refers to the expert evidence and the literature before the
court. Naylor op cit (n2) 233.
'8 Ibid.
19 EJ Mash & DA Wolf Abnormal Child Psychology 4ed (2010) 437.
2() BJ Sadock & VA Sadock Kaplan and Sadock's Synopsis of Psychiatry 10ed (2007)

877-885.
21 American Psychiatric Association Diagnostic and Statistical Manual of Mental
Disorders: DSM-5 5ed (2013) 276.
22 Ibid 276.
23 Ibid 271-274.
366 SACJ - (2018) 3

sensory, emotional, or physiological behavioural components'. 24

The presentation of PTSD varies among individuals with the presence
and/or prominence of specific positive symptoms, and the combinations
thereof, differing from individual to individual. Some people will be
most disturbed by fear-based re-experiencing, others the potential
emotional and behavioural disturbances, negative cognitions,
anhedonic or dysphoric mood states, dissociative reactions, arousal
and reactive-externalising symptoms. 25 The diagnostic criteria reflect
this in the variety of possible positive symptoms that may indicate
PTSD, and be sufficient for a diagnosis.
Importantly, 'negative alterations in cognitions or mood associated
with the event begin or worsen after exposure to the event. These
negative alterations can take various forms, ... the inability to remember
an important aspect of the traumatic event such amnesia is typically
due to dissociative amnesia and is not due to head injury, alcohol, or
drugs'.26 Negative alterations in cognitions can lead to false beliefs,
expectations and other erroneous cognitions about oneself and the
world, including, inter alia, ideas such as 'I am to blame', 'I have bad
judgment', 'it's all my fault'. 27 These compound feelings of shame,
and can reduce the likelihood of a victim seeking help and reporting
a crime.
PTSD is described as a disorder of episodic memory.28 The
awareness of the relationship between the trauma and the resultant
effects (symptoms) may itself be impaired in the individual in a
type of vicious circle. Williams 29 proposed a model of over-general
autobiographical memory development (or reduced Autobiographical
Memory Specificity) where memory searches for traumatic events
are inhibited to avoid negative experiences associated with painful
memories. Functional avoidance at the storage phase of memory
development could also limit the capacity for developing specificity
in autobiographical memories. To illustrate this, one could compare
a general autobiographical memory about oneself, which has become
generalised as knowledge, such as 'I don't like parks', and a specific
memory, such as 'I was assaulted in that park last night', which might

24 Ibid 275.
25 Ibid 274.
26 Ibid 271.
27 Ibid 272-275.
28 CM Ogle, SD Block, LS Harris, GC Goodman, A Pineda, S Timmer,
A Urquiza,
&

KJ Saywitz 'Autobiographical memory specificity in child sexual abuse victims'

(2013) 25 Devel't & Psycbopatb'y 321.
29 JMG Williams 'Depression and the specificity of autobiographical
memory' In D.C.
Rubin (ed) Remembering our Past: Studies in Autobiograpbical Memory (1996)
244-267.
The ticking clock ofprescriptionin cases of
historicalsexual abuse 367

be too painful a memory to experience and is therefore avoided.o

Reduced autobiographical memory specificity is suggested to exist in
victims of abuse, particularly adolescent victims.3 1 A distancing coping
style, which sees the victim of trauma avoiding or ignoring memories,
is a significant factor in reduced autobiographical memory specificity. 32
The DSM-5 identifies many risk factors, and relatively few protective
factors regarding a prognosis for PTSD. The wide-ranging risk factors
identified at the pre-traumatic, peri-traumatic, and post-traumatic
stages increase the complexity of understanding the course of
post-traumatic harm, and reduce its predictability. The functional
consequences of PTSD include impaired functioning 'across social,
interpersonal, developmental, educational, physical health, and
occupational domains'.33
The complexity of potential behavioural, affective and cognitive
resultants of a trauma such as sexual abuse makes it particularly difficult
to identify categorically at what point a person has gained knowledge
of any harm that has been experienced, to the point that it would
seem arbitrary. Harm, experienced in a post-traumatic individual,
includes by its very nature the potential of the victim not being able
to understand properly what she has experienced. Therefore, the
harm, namely the symptoms and course of PTSD, experienced after a
traumatic experience, is a psychological condition, at least potentially,
creating the inability to seek help or institute proceedings.

3 Prescription
3.1 Purpose
The primary purpose of prescription is to ensure legal certainty.34
At some point a perpetrator, whether debtor in terms of the law of
delict, or a criminal law accused, should be relieved of the burden of
having to face court action.35 Prescription is also said to maintain the
quality of adjudication (and thus the administration of justice), because
as time elapses, evidence may be lost, witnesses unavailable to testify,

30 LS Harris, SD Block, CM Ogle, GS Goodman, EM Augusti, RP Larson, MA Culver,

AR Pineda, S Timmer & A Urquiza 'Coping style and memory specificity in adolescents
and adults with histories of child sexual abuse' (2016) 24 Memory 1078-1090, doi:
http://dx.doi.org/10.1080/09658211.2015.1068812,accessed 26 August 2018.
31 Ogle et al op cit (n27) 330.
32 Harris et al op cit (n29) 1078-1080, 1086.
3 DSM-5 op cit (n21) 278-279.
3 South African Law Reform Commission Revised Discussion Paper 147 (Project 125)
'Harmonisation of Existing Laws Providing for Different Prescriptive Periods' (2018)
1.25.
31 Ibid.
368 SACJ * (2018) 3

or memories of key events may become indistinct. Another purpose

of prescription, however, according to the South African courts,
and courts elsewhere, is to prevent procrastination and to 'punish
the slovenly creditor'.3 7 At the same time prescription should not be
used to prevent justice from being served, particularly in the case
of rape and sexual abuse, where victims cannot be correlated with
the sloppy creditor. Instead, as has been shown, because of feelings
of shame and psychological trauma, victims are precluded for many
years from instituting proceedings. Ultimately, 'prescription penalises
unreasonable inaction, not inability to act'.3 8 According to Naylor, in
the case of sexual abuse of children 'the scales should naturally tip in
favour of penalising the perpetrators and assisting survivors'3 9

3.2 Periods
3.2.1 Criminal liability
Prior to the decision of the Constitutional Court in Frankel, s 18 of the
Criminal Procedure Act4 o read as follows:

'The right to institute a prosecution for any offence, other than the offences of

-
(a) murder;
(b) treason committed when the Republic is in a state of war;
(c) robbery, if aggravating circumstances were present;
(d) kidnapping;
(e) child-stealing;
(f) rape or compelled rape...;
(g) the crime of genocide, crimes against humanity and war crimes...;
(h) trafficking in persons for sexual purposes;
(i) using a child or person who is mentally disabled for pornographic
purposes ...
shall, unless some other period is expressly provided for by law, lapse after
the expiration of a period of 20 years from the time when the offence was
committed.' (own emphasis).

This entails that in terms of the current version of s 18 of the Criminal

Procedure Act the right to institute a prosecution for the majority of
crimes will lapse 20 years after the commission of the crime. In the case
of certain serious crimes, for example, rape, there is no prescription

36 Food and Allied Workers' Union v Pieman's Pantry (Pty) Ltd [2014] JDR 0411 (CC)
para [501, quoting Road Accident Fund vMdeyide 2011 (2) SA 26 (CC) with approval.
3 South African Law Reform Discussion Paper 126 (Project 125) 'Prescription Periods'
(2011) 3.1 and 3.7; StandardBank ofSA Ltd v Neetbling NO 1958 (2) SA 25 (C) 29.
38 Per Heher JA in Van Zijl supra (n14) at para [19].
3 Naylor op cit (n2) 231.
40 Act 51 of 1977.
The ticking clock ofprescrIptionin cases of
historicalsexual abuse 369

and the crime can be prosecuted in perpetuity. Sexual abuse, on the

other hand, prescribes after 20 years.
After the High Court decision in NL v Frankel, the Criminal
Amendment Bill of 2018 was passed, in terms of which the words
'rape or compelled rape' in s 18(f) were replaced with 'any sexual
offence in terms of the common law or statute.' Subsequently the
Constitutional Court, in NL v Frankel 42 confirmed the order made by
the high court and held that the 20-year prescription period of sexual
abuse was unconstitutional.
In the Frankel case the applicants alleged sexual abuse at the hands
of the first respondent, when they were between the ages of eight and
15 years. By the time the matter was brought before the court, the
alleged offences had prescribed. The applicants averred that they only
acquired 'full appreciation of the criminal acts committed by Frankel'
between June 2012 and June 2015.e
The applicants challenged the constitutionality of the prescription
period insofar as it related to offences as contemplated in the Criminal
Law Amendment Act (Sexual Offences and Related Matters),4 other
than rape or compelled rape,45 on the basis that the following rights
were violated:46
(i) dignity
(ii) equality
(iii) to be protected from abuse as children
(iv) to be free from all violence both from public and private sources
(v) access to the courts.
The applicants further argued that the limitation imposed by the
prescription period was not a justifiable limitation in terms of s 36 of
the Constitution.

3.2.1.1 Judgment of the court a quo 4 7

The matter first came before the South Gauteng division of the high
court where Hartford AJ ordered that s 18 of the Criminal Procedure
Act, insofar as it bars prosecution of sexual offences other than those
listed in s 18(f), is unconstitutional 'to the extent that it bars, in
all circumstances, the right to institute a prosecution for all sexual

" 2017 (2) SACR 257 (GJ)

42 Supra (n1).

4 Supra (n1) at para [14].

Act 32 of 2007.
4 Supra (n1) at para [1].
46 Supra (n1) at para [9].
NL v Estate Frankel 2017 (2) SACR 257 (GJ).
370 SACJ * (2018) 3

offences, other than those listed in s 18(f), (h) and (i), after the lapse of
a period of 20 years from the time when the offence was committed'.
The declaration of unconstitutionality was suspended for 18 months to
give Parliament the opportunity to remedy the 'constitutional defect'.

3.2.1.2 Judgment of the Constitutional Court

The applicants approached the Constitutional Court to confirm the
high court order. The respondents, including the Minister of Justice,
supported the order.
The court, per Zondi AJ, held that the distinction between types
of sexual offences on the basis of 'penetration or degree of moral
offensiveness is imbued with out-dated, patriarchal ideas about
the moral gravity and harmfulness of sexual offences.4 9 The court
furthermore held that s 18 was out of touch with the development
of the rules relating to prescription of sexual offences that has taken
place since the decisions in Van Zijl 5 0 and Bothma.
The court recognised the fact that the continuous perpetration of
sexual abuse against women and children depended on the feelings
of fear and shame engendered by the abuse, and the resultant secrecy.
The Constitutional Court confirmed the high court's ruling that
declaring s 18(f) unconstitutional would not infringe the principle
of legality, as the conduct in question had always been regarded as
criminal. The court ordered that the following words be read into
s 18(f) 'rape or compelled rape ... and all other sexual offences
whether in terms of common law or statute'. Parliament was given
24 months in which to effect remedial legislation, failing which, the
interim reading in remedy would become final.52

3.2.2 Delictual liability

3.2.2.1 Requirements for prescription
In. addition to criminal charges being brought against an alleged abuser,
the victim also has the option of claiming damages in terms of the law
of delict for any harm suffered as a result of the abuse. As plaintiff,

48 NL v Estate Frankel supra 287.

NL Estate Frankel supra (nI) at para [511.
5o Van Zifl v Hoogenbout supra (n14). See also A Mukheibir 'Sexual abuse, post-
traumatic stress syndrome and prescription - a comparison between the South
African and Dutch positions' (2005) 26 Obiter 140.
51 Botbma v Els supra (n7).
52 NL v Estate Frankel supra (n1) at para [89].
The ticking clock ofprescriptionin cases of
historicalsexual abuse 371

the victim would have to prove the elements for delictual liability,53
including harm. 54 The nature of the harm, as well as the effect it has
on the ability of the victim, was discussed above. The victim can claim
compensation for both patrimonial (for example, medical expenses)
and non-patrimonial loss (on the basis on an intentional infringement
of her bodily integrity). As mentioned earlier, the Frankel Eight have
launched a constitutional challenge against the prescribed three-year
period in the Prescription Act 55 for damages claims.
Prescription can be raised as a defence against any delictual
action. The prescription periods for civil claims, including delictual
actions, differ from those prescribed in the Criminal Procedure Act
for instituting criminal proceedings. In terms of the Prescription Act a
debt prescribes after a certain period of time, depending on the nature
of the debt.56 Section 11 sets out the prescription periods, ranging
from three to 30 years. For delictual claims, the prescription period is
three years.57
Section 12(1) of the Act provides that for prescription to begin
running, the debt has to be due. Section 12(3) provides that for a debt
to be due, the creditor has to have knowledge of the existence of the
debt, the identity of the debtor and the facts from which the debt
arises. The creditor will be deemed to have knowledge of the debt if
he or she could have acquired the knowledge by exercising reasonable
care. In the case of the victim of sexual abuse, acquiring knowledge
of the debt is almost impossible if the victim is plagued by feelings of
guilt and shame.

3.2.2.2 Knowledge
The knowledge requirement was explained in several recent judgments,
two of them Constitutional Court judgments,58 and in each one the
majority judgment was delivered by Zondo J. The conclusion which
Zondo J reached in both cases was that the knowledge requirement
entails that the creditor must have knowledge of the facts from which
the debt arises, but that knowledge that a debtor's conduct is wrongful

5 The majority of the writers speak of the five elements of 'a delict'; it is submitted
that if a generalising approach is followed, as many of these writers purport to do,
it is not correct to speak of 'a delict'.
5 See J Neethling, JM Potgieter & PJ Visser Law ofDelict 7ed (2015) 4; MM Loubser
&

JR Midgley (eds) The Law ofDelict in South Africa 3ed (2017) 25 ff.
5 Act 68 of 1969.
56 Section 10.
5 Section 11(d). Note, however the proposals in SALRC Revised Report (Project 125)
op cit (n34) at 3.8.1. to extend the general period to four years.
5 Mtokonya v Ministerof Police 2018 (5) SA 22 (CC) at para [37]; Links v Department
of Health, Northern Province 2016 (4) SA 414 (CC) at para [451.
372 SACJ - (2018) 3

and actionable amounts to the drawing of a legal conclusion, falling

beyond s 12(3) of the Prescription Act. In other words, for prescription
to begin running, it is not necessary for the creditor to know that there
is an actionable delictual claim. Zondo J held that this construction
59
was consistent with the approach adopted in Van Zifl.

3.2.2.3 Deemed knowledge

Section 12(3) of the Prescription Act provides that a creditor will
be deemed to have the requisite knowledge if he or she could have
acquired such knowledge through the exercise of reasonable care.
This means that the creditor must take reasonable care to ascertain the
identity of the debtor, the facts underlying the debt and the significance
of those facts. 60 The creditor's knowledge is assessed with reference to
6
a reasonable person in his or her position. 1 According to Loubser this
standard is not purely objective. The creditor's knowledge is tested
with refence to the steps that a reasonable person with the creditor's
particular individual circumstances (including mental shortcomings
62
or disabilities) could be expected to take. Prior to the introduction
of s 12(4) of the Prescription Act, which followed as a result of the
decision in Van Zifl, the victim's right to prescriptive recourse lay in the
knowledge provisions in s 12(3) of the Act. To the extent that s 12(4)
only applies to debts arising from certain sexual offences (excluding
sexual abuse, for example), s 12(3) will apply should a victim of these
offences elect to institute a delictual claim against the perpetrator. As
discussed below, this distinction is both arbitrary and irrational, with
the consequence that s 12(4) should be declared unconstitutional.

3.2.2.4 Van Zi/ v Hoogenhout

In this case the SCA held that victims of sexual abuse or rape would
often not have the requisite knowledge that a wrong has been
perpetrated against them. Prescription will start to run only when
there is a realisation of the wrongfulness of the perpetrator's conduct.
In Van Zifl the victim sued for damages in terms of the law of delict.
An uncle repeatedly and viciously raped her in the period from 1958
to 1967. She reached the age of majority in 1973. Despite telling her
mother about the abuse, nothing was done and not only did her

5 Mtokonya op cit (n57) at para [1531.

60 DrennanMaud & Partnersv Pennington Town Board 1998 (3) SA 200 (SCA) at 209.
61 Leketi v Tladi NO [2010] 3 All SA 519 (SCA).
62 MM Loubser Extinctive Prescription(1996) 105-106.
The ticking clock ofprescriptionin cases of
historicalsexual abuse 373

mother not acknowledge the abuse, she also punished her for being
naughty and dirty.6 3
She first instituted an action for delictual damages in the high court
in 1999. The defendant raised prescription as a defence. The case
was argued based on the 1969 Prescription Act,6 5 but the court held
that the matter should have been decided in terms of the Prescription
66
Act of 1943 as the provisions of the two Acts were sufficiently similar.
The reason for this was that at the time of the assault the 1943 Act
was in force. The court furthermore held that in terms of s 3(2)(c)(vi),
read with s 3(1) of that Act, the claim had prescribed three years after
the plaintiff had reached the age of majority. Accordingly, the claim
was dismissed and the plaintiff was refused leave to appeal.
The SCA directed that the plaintiff be granted leave to appeal and to
argue the case on the merits.
The relevant provision of the 1943 Act reads as follows:
'5(1) Extinctive prescription shall begin to run
-

... (c) in respect of any action for damages, other than for defamation, from
the date when the wrong upon which the claim for damages is based was
first brought to the knowledge of the creditor, or from the date on which the
creditor might reasonably have been expected to have knowledge of such
wrong, whichever is the earlier date...' (own emphasis).

In referring to expert evidence as well as literature on the effects of

sexual abuse on victims, Heher JA came to the following conclusion:69
'14(1) chronic child abuse is sui generis in the sequelae that flow from it;
(2) distancing of the victim from reality and transference of responsibility by
the victim on to himself or herself are known psychological consequences;
(3) in the absence of some cathartic experience, such consequences can and
often do persist into middle age despite the cessation of the abuse during
childhood.'

Heher JA concluded that, because the victim of sexual abuse did not
have the requisite 'knowledge' at the time of the abuse, prescription
could not begin to run. Only once the victim becomes aware of
the fact that a wrong was perpetrated against her, can it be said
she has acquired the knowledge that is required for prescription to
begin running. The court added that the knowledge requirements
in the provision in question did not adequately address the unusual

63 Paras [231 and [24]. See also Botbma v Els supra (n7) at para [9].
64 The case was reported as Du Plessis v Hoogenhout [2003] 3 All SA 384 (C). The
plaintiff, her brother and two cousins instituted an action against the defendant.
65 Act 68 of 1969.
66 Act 18 of 1943.
67 See Van Zifl v Hoogenhout supra (n14) at paras [8]-[12].
68 These sources were discussed in section 2 above.
69 Van Zifi v Hoogenhout supra (n14) at para [14].
374 SACJ * (2018) 3

circumstances of a victim of sexual abuse. The nature of sexual abuse

is so unusual, said the court, that it distorts the process of reasoning
enabling 'appreciation of where responsibility lies'. 70 it was for this
reason that the Prescription Act was amended to introduce a specific
provision, namely s 12(4), for claims based on sexual abuse.
The case was referred back to the high court for a decision on the
merits and on quantum. The defendant was found delictually liable
and ordered to pay damages in the amount of R450 000.71

3.2.2.5 Amendment of the Prescription Act

72
After the decision in Van Zifl, s 12(4) of the 1969 Prescription Act
was introduced. Section 12(4) reads as follows:
'Prescription shall not commence to run in respect of a debt based on the
commission of an alleged sexual offence as contemplated in sections 3, 4, 17,
18(2), 20(1), 23, 24(2), and 26(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007, and an alleged offence as provided
for in sections 4, 5 and 7 and involvement in these offences as provided for
in section 10 of the Prevention and Combating of Trafficking in Persons Act,
2013, during the time in which the creditor is unable to institute proceedings
because of his or her mental or psychological condition.' (own emphasis)

The motivation for the introduction was an acknowledgment that

debts arising from sexual offences require special treatment, coupled
with the recognition that injustice and unfairness could ensue where
a creditor is inhibited from instituting a claim.74 The sexual offences
in question are rape, compelled rape, sexual exploitation of children,
sexual grooming of children, using children for the purposes of
child pornography, and sexual exploitation and grooming of persons
who are mentally disabled and using such persons for pornography.
In respect of debts arising from these offences, the ordinary three-year
prescriptive period only starts running from the date when the victim
is able to institute proceedings. However, sexual assault and incest
are not included in the exemption. The arbitrary distinction between

70 Van Zifl v Hoogenbout supra (n14) at para [19].

71 The defendant never paid the damages, claiming he did not have money. The
plaintiff applied to have him declared insolvent but he died before the application
was heard: N Willemse ' Sex abuser avoids rap by dying', IOL, 28 January 2007,
available at https://www.iol.co.za/news/soutb-africa/sex-abuser-avoids-rap-by-
dying-312737, accessed 19 November 2018.
72 Act 68 of 1969.
7 In terms of section 68 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007. Section 12(4) was later amended with effect from
9 August 2015 to include debts based on the commission of offences committed in
terms of Prevention and Combating of Trafficking in Persons Act 7 of 2013.
7 SALRC Revised Report (Project 125) op cit (n34) Table 8, p 119.
The ticking clock ofprescriptionin cases of
historicalsexual abuse 375

sexual offences in this provision attracts a similar constitutional

objection to that which was raised by the Constitutional Court in
Frankel in respect of s 18(f) of the Criminal Procedure Act.
If a victim of sexual abuse (as per the list above) is 'unable' to
institute delictual proceedings, prescription will only commence once
the inability is cured. The provision refers to the causes of inability,
namely the 'mental or psychological condition' of the victim. This
wording fails to give proper weight to the essence of the judgment
in Van Zifl, the court there holding that the victim of sexual abuse
is in a special position, being neither 'non compos mentis' nor
incapable of rational thought.75 Nonetheless, s 12(4) can be read to
mean that where a victim suffers from a debilitating psychological
condition, such as post-traumatic stress disorder, which has the effect
of rendering him or her unable to institute proceedings, prescription
will only commence once that condition no longer exists. Where the
victim does not undergo treatment for the 'mental or psychological
condition' immediately after the abuse, the victim may be plagued for
decades with problems in relationships, substance abuse, etcetera, as
is clear from Van Zifl, as well as the discussion above on PTSD and
related conditions and the long-term effect of these conditions.

4 Other jurisdictions
While sexual abuse and rape are wide-spread in South Africa and
the proliferation of rape has earned the country the unfortunate
moniker of 'rape capital of the world', the problem is not only a South
African one. The number of commissions of enquiry into clergy sex
abuse, for example, have shown rampant abuse in Anglo-American
and European countries.7 6 Furthermore, the problem is not limited to
Catholic clergy, it occurs in families (a notable example being the Van
Zifl case), in the context of sports teams and also in other professional
contexts, for example the recent disclosure of abuse perpetrated by
Harvey Weinstein, Bill Cosby, Bob Hewitt and other celebrities. This
necessitates a cursory glance at other jurisdictions, bearing in mind
the importance of the transformative nature of the South African
Constitution and the fact that the Bill of Rights applies horizontally.

75 Van Zijl v Hoogenbout supra (n14) at para [19].

76 Examples of reports by commissions of enquiry into clergy abuse include the
two reports compiled by the John Jay College of Criminal Justice, which were
commissioned by the United States Catholic Bishops Conference, namely The Nature
and Scope ofSexual Abuse ofMinors by CatholicPriests and Deacons in the United
States 1950 - 2002 (2004) op cit (n5) and The Causes and Context ofSexual Abuse of
Minors by CatholicPriestsin the United States 1950-2010 (2011). In the Netherlands
the Deetmann Commission compiled a two-part report: W Deetman Seksueel
Misbruik van Minderfarigen in de Rooms -KatholiekeKerk (2011).
376 SACJ * (2018) 3

This means that private law (including claims in terms of the law of
delict) has also to comply with the "spirit, purport and objects" of the
Bill of Rights.7 7 This sets South Africa apart from other jurisdictions
and entails that there is even more reason to promote the rights of
victims to claim damages from perpetrators. The jurisdictions below
were chosen, firstly because they were cited in the South African
cases dealing with abuse, and secondly to represent both common
law and civil law jurisdictions. The Netherlands, furthermore, draws a
distinction between subjective and objective prescription.
In the examples below, the rules of prescription make provision for
extended prescription periods for victims of sexual abuse who only
seek redress after many years and even decades. In none of these
cases, however, has prescription been abolished.

4.1 Massachusetts, United States of America

In 2002 the Spotlight Investigation team of the Boston Globe
Newspaper published a damning report in which rampant sexual abuse
by Catholic clergy within the Archdiocese of Boston was exposed.
The majority of these cases occurred decades before. In many cases
the perpetrators had either died, or the statute of limitations had
run.7 9 The sexual abuse problem in the United States is, of course, not
limited to Massachusetts,"o but it was in this state that the Catholic
clergy sex abuse was first exposed.
One example of clergy sexual abuse in Boston was that of David
Carney, who had been raped and abused on three difference occasions
during 1981 by a Catholic priest, one Monsignor Ryan. In 2002 he
instituted an action for damages against the Archbishop of Boston.
The case was reported as Carney v Roman Catholic Archbishop of

n Section 39(2), Constitution of the Republic of South Africa, 1996.

78 The reporters won the 2003 Pulitzer prize for their investigation. Their work was
published in book form (Investigative Staff of the Boston Globe Betrayal: The Crisis
in the CatholicChurch 2002). The book inspired the film Spotlight. See also bttps.//
www.pulitzer.org/woinners/boston-globe-1,accessed 31 October 2018.
7 For example in Pennsylvania C Siemaszko 'Inside the fight to change statute
of limitation laws in Pennsylvania' NBCNews, 21 August 2018, available at
https://www.nbcnews.com/news/us-news/inside-fight-change-statute-limitations-
laws-pennsylvania-n902196, accessed 31 October 2018.
80 A grand jury in Pennsylvania recently released a report in the Archdiocese of
Washington. See M Boorstein & J Zauzmer 'Washington Catholic Archdiocese
releases names of 31 clergy members 'credibly accused' since 1948 of sexually
abusing minors' Washington Post, 15 October 2018, available at https://www.
washingtonpost.com/religion/2018/10/15/washington-catholic-archdiocese-
releases-names-priests-credibly-accused-abuse-since/?utm-term=.c99d232b82c8,
accessed 31 October 2018.
The ticking clock ofprescriptionin cases of
historicalsexual abuse 377

Boston and was cited in Van Zifl.82 The alleged perpetrator denied
having abused Mr Carney.8 3 In the alternative he argued that the claim
was time-barred, as the three-year statute of limitations for monetary
damages had run. The provision on which Monsignor Ryan relied
reads as follows:8 4
'Actions for assault and battery alleging the defendant sexually abused a
minor shall be alleged to have caused an injury or condition or within three
years of the time the victim discovered or reasonably should have discovered
that an emotional or psychological injury or condition was caused by said
act, whichever period expires later; provided, however, that the time limit for
commencement of an action commenced under this section is tolled for a
child until the child reaches eighteen years of age.'

The questions that the Court had to answer were the following: 8 5

1) Did the plaintiff have knowledge or sufficient notice that he was

harmed; and
2) Did the plaintiff have knowledge or sufficient notice what the
cause of the harm was?
86
In referring to Ross v Garabedian and many other cases, the court
in Carney held that the mere fact that the defendant had suffered as a
result of the abuse and knew that what had been done was wrong, was
not sufficient for the statute of limitations to run. The court held that it
'would constitute impermissible fact-finding for this court to conclude
that Mr Carney understood at the time of the abuse or soon thereafter
87
that he had suffered appreciable harm.'
Regarding the matter of causation, the court held that ordinarily
establishing whether a victim understood the causal connection
between the abuse and the resultant harm, is a question of fact. From
the victim's statement it was clear that he only became aware of the
causal connection in March 2002, and was still discovering the extent
of that connection.8 8 Monsignor Ryan's motion for summary judgment
was therefore denied.

81 16 Mass L Rptr 3, see the judgment at bttps.//www.casemine.com/judgement/us/

59147al2add7b049344037efaccessed 31 October 2018.
82 Van Zjil v Hoogenbout supra (n14) at para [1].
83 For a detailed exposition of the facts see the case supra (n81) and R Ranalli 'Alleged
sex abuse victim considered killing monsignor' Boston Globe, 1 November 2002,
available at bttp.//arcbive.boston.com/globe/spotlight/abuse/stories3/110102_killing.
btm, accessed on 31 October 2018.
84 General Laws c. 260, § 4C: Sexual abuse of minors, cited at 1 of the judgment.
85 Carney v Roman CatbolicArchbishop ofBoston supra (n81) at 2.
86 433 Mass. 360 (2001).
87 Ross v Garabediansupra (n8a) at 4.
88 Carney v Roman CatholicArchbishop of Boston supra (n81) 4 ff.
378 SACJ * (2018) 3

The type of prescriptive provision which applied in Carney is called

delayed discovery and is common in the United States. The limitation
period to institute a civil claim arising from cases of sexual abuse only
begins to run from the date when the victim could reasonably have
determined that the harm was caused by an earlier abuse.8 9

4.2 United Kingdom - England and Wales

Limitation (prescription) periods for civil claims are governed by s 11
of the Limitation Act.90 Section 11 applies to 'any action for damages'.
The prescription period is three years. Section 33 of the same Act,
however, gives the court a discretion as to the exclusion of the time
limit for personal injury actions.
In Stubbings v Webb91 the House of Lords held that in claims for
damages resulting from sexual abuse the court had no discretion to
extend the time bar. The plaintiff appealed to the European Court of
Human Rights, which upheld the decision of the House of Lords on
the basis that no human rights breach occurred as a result of the victim
being time-barred. The court emphasised the importance of limitation
periods as ensuring legal certainty and protecting defendants from
'stale claims'.
In A v Hoare92 the House of Lords overruled its earlier decision in
Stubbings by holding that s 33 of the Limitation Act gives the judge a
discretion regarding the extension of the prescribed limitation periods
in the case of personal injury claims (including sexual assaults), thus
following a similar approach to that of the SCA in Van Zifl. In exercising
this discretion, the court must consider whether a reasonable person
with the claimant's knowledge would have considered the injury
sufficiently serious to warrant instituting legal proceedings. An
important factor in this enquiry is whether the claimant has personal
characteristics which impede acting as a reasonable person would.
The court recognised that a delay in instituting a claim could impede
the defendant's right to a fair trial. It stressed, however, that the
disadvantage caused to the defendant by the delay had to be balanced
with a consideration of the length of the delay and the reasons for
the delay (the law being required to recognise the inhibitions caused
by sexual abuse). Although the delay may cause some unfairness to
the defendant, the delay may have been caused by so reasonable

89 A Gray 'Extending time limits in sexual abuse cases in Australia, America and
Canada' (2011) 10 Whittier]Child & Fam Advocacy 227 228.
9 1980.
' 1993] 1 All ER 322.
92 HL [2008] 2 All ER 1.
9 A v Hoare supra at paras [86]-[87].
The ticking clock ofprescriptionin cases of
historicalsexual abuse 379

a reason, that some procedural unfairness must be tolerated. The

delay is not critical in itself, but is only relevant to the extent that it
may undermine the defendant's right to a fair trial.
It is clear that this enquiry requires a complex balancing exercise,
which is far more nuanced than the position in South Africa, where
a court is merely required to determine whether a claimant has the
ability to institute a claim against her abuser. The lack of an appropriate
discretion is inflexible. The vague 'inability' test creates uncertainty,
which impacts on the rule of law. As discussed below, it is submitted
that s 12(4) of the Prescription Act could be amended to allow for a
broad balancing enquiry to ensure constitutional compliance.

4.3 Netherlands
Prescription in Dutch law is governed in terms of art 3:310 of the
Civil Code (Burgelifk Wetboek), which recognises both relative and
absolute prescription.9 5 The period for relative prescription is five
years and only begins to run when the victim has knowledge of the
damage and the identity of the perpetrator. This form of prescription
therefore requires subjective knowledge. Absolute prescription, on
the other hand, is determined objectively. The prescription period
of 20 years commences on the date of the damage-causing event,
irrespective of the awareness of the victim.96 Regarding the question
of relative prescription in the case of sexual abuse, the Hoge Raad
(Dutch Supreme Court) held that, irrespective of whether the victim
was aware of both the identity of the perpetrator and the damage, a
victim of sexual abuse could be stricken with 'psychische overmacht'
(loosely translated as a psychological force majeure), which would
cause the prescription to begin only once this condition has passed.
In this case a woman worked for her brother-in-law. During the

A v Hoare supra at para [81].

9 The terms 'relative' and 'absolute' are not used in the legislation, but is used by
writers. See for example EF De Beer 'De Absolute Verjaringstermijn bij Seksueel
Misbruik' LLM (Tilburgh University) (2011); JL Smeehuijzen 'Post-traumatische
stress-stoornis en verjaring' in G Van Maanen De Rol van Aansprakelijkbeidsrecbt
bif de Verwerking van PersoonlijkeLeed (2003) 213ff.
96 Original text: 'Een rechtsvordering tot vergoeding van schade of tot betaling van
een bedongen boete verjaart door verloop van vijf jaren na de aanvang van de dag,
volgende op die waarop de benadeelde zowel met de schade of de opeisbaarheid
van de boete als met de daarvoor aansprakelijke persoon bekend is geworden, en in
ieder geval door verloop van twintig jaren na de gebeurtenis waardoor de schade is
veroorzaakt of de boete opeisbaar is geworden.' (Civil Code (2002): Book 3: article
310, p 116).
9 HR 31 Oktober 2003, RvdW 2003, 169. See also JL Smeehuijzen 'HR 31 Oktober
2003, RvdW 2003, 169 (Saelman-arrest)' 2004 Tijdsch Vergoeding Personenscbade
25-29.
380 SACJ * (2018) 3

period 1980-1989 he repeatedly molested and raped her. The woman

instituted an action for loss of earning capacity and non-patrimonial
loss in 1994. The defendant claimed that the claim had, in terms of
the short prescription period, prescribed. The courts a quo as well as
the Hoge Raad rejected the claim of prescription. The reason for this
was that the plaintiff was precluded by the 'psychisch overmacht' from
instituting the action for damages and the running of prescription
would be delayed until such time as the plaintiff could relay her
experience to someone.
Of course, if the plaintiff only overcomes the inability to institute
proceedings after the end of the 20-year period, the claim will have
prescribed completely.

5 A case for amending the prescription period for rape

and sexual abuse for delictual claims
The decision in Van Zifl, in recognising the debilitating effect of rape
and sexual abuse on the victim, paved the way for a new approach to
prescription for the purposes of the law of delict. The Frankel Eight
want the courts to go further, by abolishing prescription for sexual
offences for the purposes of the law of delict. The constitutionality of
s 12(4) and the strength of the Frankel Eight's potential claim is now
assessed.

5.1 The distinction that section 12(4) of the Prescription Act

draws between some sexual offences and others
Section 12(4) provides that prescription will not begin to run for debts
that are based on the commission of certain sexual offences, including
rape, where the claimant is unable to institute the claim owing to a
psychological or mental condition. However, claims based on other
sexual offences, such as sexual assault, are not similarly treated. Here,
s 12(3) of the Prescription Act applies. If a claim is lodged too late, and
an objection raised, it will be necessary to prove that the claimant did
not have the requisite knowledge, despite the exercise of reasonable
care.98 The claimant's inability to claim will be irrelevant.
The distinction drawn in s 12(4) between claims based on offences
such as rape, on the one hand, and sexual assault, on the other, is both
arbitrary and irrational. This was recognised by the Constitutional
Court in Frankelwhere Zondi AJ held that there is no rational basis to

98 Section 12(3) Prescription Act. An important factor in this enquiry would be the
victim's mental capacity to acquire such knowledge, assessed in terms of a subjective
standard, with reference to the creditor's personal characteristics. See Leketi v Tiadi
NO supra (n61).
The ticking clock ofprescriptionin cases of
historicalsexual abuse 381

impose differing prescriptive periods for rape and compelled rape and
other types of sexual offences. The emotional harm that these types
of offences cause are similar, even though they may differ in form.99
The reasoning in Frankel applies equally to prescriptive periods
for civil claims arising from sexual abuse. It is submitted that s 12(4)
should be declared unconstitutional on the basis that it creates an
artificial distinction between various sexual offences when the context
and psychological consequences are virtually identical.10 0

5.2 Refuting the argument of prejudice to the defendant in the

case of historic abuse
The perpetrator will undoubtedly argue that a delayed trial would
impede the administration of justice and that it would be prejudicial to
his good name to appear in court and face these allegations at a much
later stage. This argument was specifically raised by the accused in
Hewitt v S.1 01 In Bothmal0 2 the applicant instituted a private prosecution
against an alleged sexual abuser, where the State had dismissed the
case and issued a certificate of nolleprosequi.The high court held that
the accused could suffer irreparable prejudice and ordered a permanent
stay of prosecution. On appeal the Constitutional Court, per Sachs
J, held that, while the alleged perpetrator would undoubtedly face
prejudice, he would have an opportunity to defend himself in court.103
The court would have to consider the fact that there may, particularly
in the cases of historic abuse, not be enough evidence to convict an
accused. Should the accused be wrongly convicted, there is still the
possibility of an appeal.
This also applies to the defendant who is being sued in terms of the
law of delict. Even though the burden of proof is not as onerous as in
a criminal case, the court cannot find for the plaintiff in the absence
of any evidence. The victim would, just like in criminal cases, have
considerable difficulty proving historic abuse.
Moreover, and assuming s 12(4) of the Prescription Act is retained,
it is submitted that this provision could be amended to provide the
courts with a wide discretion to determine whether the plaintiff is
able to institute action against the defendant and whether good cause

9 NL v Estate Frankel supra (n1) at para [5.91.

100 It is interesting that the SALRC did not deal with this anomaly in its 2018 Report, op
cit (n34).
101 2017 (1) SACR 309 (SCA). See also the discussion in Nortje and Du Toit op cit (n5).
102 Op cit (n7).
103 Paras [781-[81].
382 SACJ - (2018) 3

has been shown for the delay. 104 The courts would be required to
balance a number of factors, including the impact of the delay on the
administration of justice, the prejudice to the defendant, the nature of
the offence, the prospects of success, the impact of the sexual abuse
and the plaintiff's personal circumstances. 1 0 5 It is submitted that this
approach accords with the underlying policy objective of extinctive
prescription (protecting debtors from outdated claims as opposing to
selecting arbitrary prescriptive periods)10 6 and would enable a value
judgment where the interests of the debtor are balanced with the need
to protect valid claims arising from cases of sexual abuse. In this way
the 'prescription balance' is maintained and proper weight is given
to the conflicting interests, including the debtor's interest in ensuring
that the delay does not violate his right to a fair trial.

5.3 Difficulty proving 'inability' - room for a broader balancing

enquiry or the abolition of prescriptive periods?
Section 12(4) of the Prescription Act makes provision for victims who
are unable to confront their abuser for sexual assault by allowing
for the delay of the commencement of prescription where the victim
is unable to institute proceedings because of his or her mental or
psychological condition. The legislature is in the process of amending
the Criminal Procedure Act to confirm to the order in Frankel to
abolish the prescription period for non-penetrative sexual assault.
Section 12(4) in the Prescription Act, however, remains problematic
because the victim would still have to rebut the claim of prescription
by presenting evidence showing that the 'alleged offence' resulted in
10 7
inability to institute the action.
The Act does not clearly indicate how the victim's inability should be
assessed. There has been little jurisprudence addressing this question
in South Africa.108 Given that s 12(4) was introduced following the
decision in Van Zifl, the courts should adopt a very similar approach
to that used by Heher JA in that case. It is worth recalling that Heher

104 See the discussion in relation to A v Hoare op cit (n92) where the House of Lords
held that section 33 of the UK Act gives courts a discretion to condone the late filing
of sexual abuse claims. See too SALR Discussion Paper 126 op cit (n37) para 4.19
onwards where the SALRC recommends the introduction of an application for
condonation on good cause shown where a claim is filed late.
105 See, for example Melane v Santam Insurance Company Ltd 1962 (4) SA 531 (A) and
SALRC Revised Discussion Paper 126 op cit (n37) paras 4.19-4.30.
io6 Loubser op cit (n54).
107 Van Zifl v Hoogenhout supra (n14) at para [151.

108 See for example the SALRC Revised Paper which refers to s 12(4) in passing and
does not address the meaning of 'ability' to sue, op cit (n34). Brief mention is made
in a footnote to the Canadian decision referred to below.
The ticking clock ofprescriptionin cases of
historicalsexual abuse 383

JA held that the plaintiff in Van Zifl only acquired the appropriate
knowledge to sue once she had developed 'meaningful knowledge
of the wrong', and that this occurred when 'the progressive course of
self-discovery finally removed the blindfold she had worn since the
malign influences' which 'took over her psyche.'10 9
The Canadian decision in M (K) v M (H)110 is also instructive. Here,
the applicant had been abused as a child for many years by her father.
At the age of 28, after receiving psychiatric treatment, she commenced
civil legal action against her father. For the tort claim, the Canadian
Supreme Court held that the limitation period did not commence
running until she was fully capable of appreciating the wrongful nature
of the defendant's acts and the causal nexus between those acts and
her injuries. This occurred only when she began therapy. The court
accepted that 'post-incest syndrome' prevents victims from recalling
their experiences and impedes acceptance of the nature and cause
of the injuries suffered. Importantly, whilst the court recognised that
late claims may prejudice defendants, it held that it would be 'patently
inequitable' to allow incest perpetrators to escape civil liability by
virtue of a strict limitation period. The court indicated that law reform
for these cases is needed, including the abolition of limitation periods
for victims of sexual abuse. 111
Notwithstanding this insightful decision, in other jurisdictions
which use the discovery concept in relation to sexual abuse cases,
there is often a wide range of interpretations as to the exact meaning
of discoverability, which causes legal uncertainty and inevitably
prejudices the vulnerable victim of sexual abuse.112
There is thus an argument to be made for either: a) a broader value
judgment enquiry for s 12(4) where the respective interests of the
debtor and the creditor are assessed and appropriately balanced; or
b) the abolition of all prescriptive periods for delictual claims based
on sexual abuse. Given the current climate of abuse in South Africa,
in particular against women and children, both these options accord
with the 'spirit, purport and objects' of the Bill of Rights. A broader
balancing enquiry for s 12(4) of the Prescription Act would enable the
courts to balance a wide range of factors, including the length of the
delay, the reasons therefor, good cause shown, and the impact of the
delay on the defendant. Abolishing prescription periods for rape and
sexual abuse in the case of delictual claims would reduce the victim's

09 Van Zifl n Hoogenbout supra (n14) at para [44].

110 [1992] 3 SCR 6 (SCC).
11 In Ontario the limitation period for sexual abuse cases where there is a power
relationship has been abolished. See s 16(1)(h) of the Limitations Act 2002, c24.
Schedule B.
112 Gray op cit (n89) at 228.
384 SACJ * (2018) 3

burden of proof considerably in that the victim would not have to face
a claim of prescription based on ability to sue, even though the victim
would still have to prove all the elements of delict, beginning with
conduct.
In support of these proposals, the various rights at play in the debate
are now considered.

5.4 A constitutional and human rights perspective

It has been shown that s 12(4) of the Prescription Act is unconstitutional
to the extent that it irrationally distinguishes between various sexual
offences. The existing provision also violates a number of the victim's
constitutional rights. The question, however, is whether a prescriptive
period for sexual abuse claims should be abolished altogether or
whether a more flexible approach should be adopted allowing the
courts a discretion to extend the ordinary prescriptive period for such
cases on good cause shown.
It is likely that the court in the upcoming Frankel case1 3 will adopt
a similar approach to that of the Constitutional Court in Frankel and
grant an interim declaration of constitutional invalidity for s 12(4),
coupled with an interim reading-in order, to ensure that s 12(4) applies
to all delictual claims arising from sexual offences. The court would
then probably refer the amendment of the provision to the legislature.
Whilst the court would undoubtedly take cognisance of s 39(2) of the
Constitution, which obliges courts to promote the 'spirit, purport and
objects' of the Bill of Rights when interpreting any legislation and to
prefer interpretations that fall within constitutional bounds over those
that do not,n4 the court should accept that it is not in a position to use
s 39(2) to interpret s 12(4) in a manner which permits the introduction
of new prescriptive periods or rules for sexual abuse cases. This is
because the s 39(2) duty is constrained by an important qualification
- the interpretation must not be unduly strained. The interpretation
must not be 'distorted' or 'fanciful', for the text used in a statute is not
5
'infinitely malleable'."1
When determining whether s 12(4) should be amended, the
legislature is urged to take into account the special circumstances of
victims of sexual abuse, the impact of this provision on the rights of
the victim and balance these with the right of the debtor to a speedy
trial.

113 Frankel op cit (nlO).

114 InvestigatingDirectorate:Serious Economic Offences v Hyundai Motor Distributors

(Pty) Ltd 2001 (1) SA 545 (CC) at para [24].

115 Daniels v Campbell NO 2004 (5) SA 331 (CC) at para [83].
The ticking clock ofprescriptionin cases of
historicalsexual abuse 385

5.4.1 The right to dignity

The importance of dignity in our constitutional dispensation is
recognised by the fact that the Constitution treats dignity both as a
value underpinning the Constitution (see s 7(1)) and as an entrenched
right. In S v Makwanyanex17 O'Regan J described the foundational
nature of human dignity as follows:
'The importance of dignity as a founding value of the new Constitution cannot
be over-emphasised. Recognising a right to dignity is an acknowledgement of
the intrinsic worth of human beings: human beings are entitled to be treated
as worthy of respect and concern. This right therefore is the foundation of
many of the other rights ... ,118

In Khumalo v Holomisa"9 the Constitutional Court recognised that

'the recognition and protection of human dignity is a foundational
constitutional value.' 120
Khampepe J in Teddy Bear Clinicfor Abused Children v Minister of
Justice and ConstitutionalDevelopmentl21 held that dignity, while not
easily defined, is the cornerstone of our democracy.122 Dignity was
described as comprising 'the deeply personal understanding we have
of ourselves, our worth as individuals and our worth in our material
123
and social context.'
Sexual abuse is an egregious infringement of the victim's right to
dignity, both with regards to the bodily infringement itself, and the
resultant feelings of shame and self-loathing. As a value underpinning
the Constitution, the right to dignity is also intertwined with other
rights, such as the right to freedom and security of the person. 124

5.4.2 The right to freedom and security of the person

Section 12(1)(c) of the Constitution provides that

6 'This Bill of Rights ... enshrines the rights of all people in our country and affirms
the democratic values of human dignity, equality and freedom'.
117 S v Makwanyane 1995 (3) SA 391 (CC).

"1 Para [328].

"9 2002 (5) SA 401 (CC).
120 Para [26].
121 Teddy Bear Clinic for Abused Children v Minister of justice and Constitutional
Development 2014 (2) SA 168 (CC).
122 Para [52].
123 Ibid.
124 See also generally Dladla v City ofJohannesburg2018 (2) SA 327 (CC), where the
conduct in issue infringed both the rights to dignity and freedom and security of
the person.
386 SACJ * (2018) 3

'Everyone has the right to freedom and security of the person, which includes
the right ... to be free from all forms of violence from either public or private
sources.'

Sexual offences can in many instances be violent, and furthermore

constitute treatment in a cruel, inhuman and degrading way.
Infringement of this right also results in infringement of the right to
dignity, as these rights are intertwined.
In Carmichele v Minister of Safety and Securityl25 the court stressed
the fact that South Africa was a signatory to a number of international
instruments in terms of which it is duty-bound to prohibit violence
against women and children.126 These instruments include the
Convention on the Elimination of All Forms of Discrimination Against
28
Womenl 27 and the Convention on the Rights of the Child,1 which
recognises that children must be treated as individuals with their own
voice, and must receive protection from those that hurt or exploit them.

5.4.3 The rights of children to be safeguarded from abuse

Section 28 of the Bill of Rights makes provision for the rights of
children, inter alia to be protected from maltreatment, neglect,
abuse or degradation. The Children's Act' 29 was promulgated to give
effect to the rights enshrined in s 28 as well as several international
instruments. The Children's Act contains numerous references to
abuse, including sexual abuse, and places duties on various people
with regard to prevention of abuse and what has to be done when
a child has been abused. The Criminal Law (Sexual Offences and
Related Matters) Amendment Act1 3 0 also makes provision for the safe-
guarding of children. Chapter III deals with sexual offences against
children. Children's rights include the right to dignity. In S vM
32
Sachs J described the dignity of children as follows:1
'Every child has his or her own dignity. If a child is to be constitutionally
imagined as an individual with a distinctive personality, and not merely as
a miniature adult waiting to reach full size, he or she cannot be treated as a

125 2001 (4) SA 938 (CC).

126 Para [62].
127 See Carmichele footnote 67. See also s 231 Constitution of the Republic of South
Africa, 1996.
128 South Africa became a signatory to this convention in 1995. See K Abrahams & T
Matthews PromotingChildren'sRights in South Africa: A Handbookfor Members of
Parliament(2011) 11.
129 Children's Act 38 of 2005.
130 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
" 2008 (3) SA 232 (CC).
132 Para [18].
The ticking clock ofprescriptionin cases of
historicalsexual abuse 387

mere extension of his or her parents, umbilically destined to sink or swim

with them. The unusually comprehensive and emancipatory characterof
section 28 presupposes that in our new dispensationthe sins and traumasof
fathers and mothers should not be visited on their children.' (own emphasis).

He goes on to describe the right of children to live in an environment

where they will be safe:13 3
'Individually and collectively all children have the right to express themselves
as independent social beings, to have their own laughter as well as sorrow, to
play, imagine and explore in their own way, to themselves get to understand
their bodies, minds and emotions, and above all to learn as they grow how
they should conduct themselves and make choices in the wide social and
moral world of adulthood. And foundational to the enjoyment of the right to
childhood is the promotion of the right as far as possible to live in a secure
and nurturing environment free from violence, fear, want and avoidable
trauma.'

Children that have been sexually abused have been deprived of their
right to enjoy a happy childhood as described so eloquently by Sachs J.
There is thus an obvious duty to take proactive steps to ensure that
abused children are empowered to institute civil action against their
abusers, even should this occur in adulthood.

5.4.4 The right of access to the courts

Section 34 provides that:
'Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum.'

Prescription in the case of sexual abuse and rape (in the case of
civil claims) can effectively deprive victims of their right of access to
the courts, especially where the time bar fails adversely effects the
claimant's rights and does not give an adequate and fair opportunity
to approach the court.13 4 In addition to the fact that sexual abuse
violates the victim's other rights, the victim suffers the added injustice
of the infringement of the right to have the matter adjudicated before
a court. Thousands of victims of historical sexual abuse at the hands
of Catholic priests were unable to report the matters to the authorities
and to claim damages, because these crimes had exceeded the statute
of limitations. In some instances, the offenders were still alive and
hence it would have possible for the authorities to prosecute them
had the crimes not prescribed. In the case of civil claims, the victims

133 Para [19].

13 See generally Moblomi v Minister of Defence 1997 (1) SA 124 (CC); Bruimmer v
Ministerfor Social Development 2009 (6) SA 323 (CC).
388 SACJ * (2018) 3

could sue the Dioceses but again, where the statute of limitation was
reached, the victim had no remedy.
In the South African context, it is submitted that s 12(4) of the
Prescription Act unjustifiably infringes the rights of victims of sexual
abuse to seek judicial redress. It is acknowledged that prescription
serves an important purpose and is justified on the basis of fairness,
certainty and the need to protect a debtor from the enforcement of a
stale claim by an idle creditor. This does not mean, however, that all
prescriptive periods are constitutionally sound. Each provision should
afford the creditor an adequate and fair opportunity to approach the
court and must be refined to take into account that creditor's unique
circumstances.1 3 5 Section 12(4) was introduced to provide a new
prescriptive rule for victims of sexual abuse, but its vague requirement
of 'inability' disregards the vulnerability of these victims and the
complex balancing of interests required. The reality is that the victim
of sexual abuse cannot be correlated with a creditor who has 'slept' on
his or her rights. Additionally, prescription provides little incentive for
victims to institute their claims in a timely fashion if they have been
left psychologically incapable of recognising that a cause of action
exists. It is submitted that s 12(4) fails to acknowledge the unique
circumstances of the victims of sexual abuse, constitutes a barrier to
justice and is a violation of the right to dignity. Either the prescription
period for these types of cases should be abolished altogether, or a
more nuanced and contextualised approach should be introduced
allowing the courts to assess broader interests, including those of the
victim, the interests of society in ensuring that law protects the dignity
of victims (who usually suffered abuse as children), as opposed to the
6
interests of the perpetrator to legal certainty.1

6 Conclusion
In Bothma Sachs J held that 'This is a poignant case with dark edges
of tragedy.'137 This is true of all cases of sexual abuse. The tragedy is
aggravated when the abuser is a family member or someone who is in
a position of trust. In Van Zifl, the abuse extended beyond the sexual
abuse that the victim had endured at the hands of her uncle. When she
tried to tell her mother that she was being abused, her mother did not
believe her and furthermore scolded and punished her for telling lies.

135 Supra.
136 See too E Adjin-Tettey and F Kodar 'Improving the potential of tort law for redressing

historical abuse claims: the need for a contextualized approach to the limitation
defence' (2010) 42 Ottawa L Re. 95 - 123.
137 Botbma v Els supra (n7) para [77].
The ticking clock ofprescrzption in cases of
historicalsexual abuse 389

Proving historical abuse is difficult, given the fact that it becomes

increasingly difficult to find evidence. The fact that a claim may be
barred by prescription makes the process all the more onerous to a
victim already suffering from the psychological effects of the abuse,
including post-traumatic stress disorder. Prescription periods would,
apart from the fact that they undermine several fundamental rights
of victims of abuse, also be detrimental to the deterrence function of
criminal law. The decision of the Constitutional Court in the Frankel
case is, therefore, welcomed.
Insofar as delictual claims are concerned, victims of sexual abuse
will in the interim have to rely on the fact that, as a result of the
psychological effects of the sexual abuse, the victim only acquires the
requisite knowledge once she realises that she has suffered a wrong,
and that prescription only starts running once the victim is able to
institute the action. It is submitted that, instead of relying on the vague
'inability' requirement, the prescription periods for claims of delictual
damages in the case of rape and all other forms of sexual abuse should
either be abolished by the legislature, or s 12(4) of the Act should be
amended to introduce a judicial discretion to balance the interests of
the victim, society and the perpetrator. This type of enquiry would
enable the courts to consider a wide range of factors, including the
length of the delay, the reasons therefor, and the impact of the delay
on the defendant.
Both options have their benefits. The introduction of a wider judicial
discretion enables a value judgment where proper weight is given to
the conflicting interests, including the unique and vulnerable position
of the sexual abuse victim and the debtor's interest in ensuring that
the delay does not violate his right to a fair trial.
Abolishing prescription periods for rape and sexual abuse for
delictual claims would reduce the victim's burden of proof considerably
because the victim would not have to face a claim of prescription
based on ability to sue, even though the victim would still have to
prove all the elements of delict, beginning with conduct. It is onerous
enough for the victim of sexual abuse to prove the conduct; to prove
the absence of the requisite knowledge only makes the burden more
onerous.
The South African Law Reform Commission is currently considering
reforms to the Prescription Act because 'more is required of prescription
than utilitarian justice', especially in a society which embraces
substantive equality and dignity for all. 13 8 Whilst the constitutionality
of s 12(4) of the Act has not been considered by the Commission, it is
submitted that an enquiry into the constitutionality of the prescriptive

138 SALRC Revised Report (Project 125) op cit (n34) at xiii.

390 SACJ * (2018) 3

periods and rules for victims of sexual abuse should become a priority.
This will enable the Commission to meet its stated objective, namely
that: 'prescription remains dynamic in the face of an evolving society'
cognisant of the fact that its prescripts may 'act as a blunt instrument
of constraint by limiting constitutionally guaranteed rights.' 39
The challenge being launched by the 'Frankel Eight' to the prescription
periods for delictual liability in the case of sexual abuse is a welcome
step in the direction of making it easier for victims of historical sex
abuse to come forward to demand justice and the restoration of their
dignity. In South Africa where sexual abuse has become part of the
national culture, every attempt must be made to hold perpetrators
liable both in terms of the law of delict and criminal law. Sexual abuse
and rape constitute possibly the most egregious- infringements of the
right to dignity. Given the fact that dignity is a value underpinning our
Constitutional dispensation, the imperative to develop the common
law requires revisiting prescription for all forms of sexual abuse, also
for the purposes of claims for delictual damages.

139 Ibid.