ATC200902: Report of the Select Committee on Security and Justice on the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill [B 22B – 2019] (National Assembly – sec 75), dated 2 September 2020

NAME OF INDIVIDUAL / INSTITUTION

COMMENTS/RECOMMENDATIONS

DOJCD RESPONSE

97 individuals expressed their support for the Bill:

R Hutchinson,   A Meier, J Attree, W Kruger, M Taylor, A Anon, A Gielink, L Garizio, D Martin, L du Toit, H Booysen, P Browne, J Goodman, L Coetzee, J Calvert, W Urquhart, F Pretorius, S Hayes, C Hohne, M Lishman, J Tite, O Price, F Parsons, B Havenga, L Lombard, N Levinson, M Pretorius, M Willey, M Bidinost, M Van der Pas, S Lobban, P Swart, V Palmer, Y Van den Berg, E Du Buisson, E Ferreira, G McNear, J Coetzer, A Mellet, I Milner, G Verster, J Labuschagne, C Landman, L Kellerman, H du Plessis, R Mazibe, J Pelser, A Wessels,  D Strauss, L Forbes, C Maloney, S Bonegio, W Rigaardt, J Saayman, A Dennis, J Roets, J Joubert, K Riekert, L Jacobs, A Gootman, M Botha, M Hugo, R Esterhuizen, R Solomon, L Ingram, M Dean, M Gambu, J Bester, L Law, K Gajzler,  K van Schalkwyk, M Wamsteker, T Joseph, S Nel, T Wassenaar,  K Josiah, C Dibakwane, B Tucker, S van Breda, S Makhobosi, N Njokweni, M Myerscough, M Huson, K Minnaar, G Mallen, M de Beer, S van Niekerk, N Pillay, H Hugo, L H, K Collett, K Mangiagalli, B Mahood, B Esau, C Marais, Larry H, A Laubscher.

37 individuals indicated that they do not support the Bill:

J Alexander, M Pannewitz, B Helesi, B Matthysen, R McIntosh, A Ingram, C Birkett, J Grobler, D Munn, R Macgregor, P van Gass, T Saunders, C Blankevoort, N Gardner, Y Ismail, C Hill, A Raath, C Fourie, R Murphy, B Krugel, S Menache, S Smit, M Brand, C Coetzee, S Munnisunker, J Luccarda, B Roux, G Neubert, D Roux

J Taylor and E Breytenbach

R Fowkes

M Sawyer

H Petrick

J Waurich

M Steynberg

B Lipinski

Do not support the Bill.  The 20 years should stand which is sufficient time for the alleged victim to decide whether or not to proceed.

Expressed concern with regard to proving the facts of the case after so many years have lapsed.

Does not fully support the Bill, not all complainants tell the truth.

Raises the question how anyone can reliably investigate what happened 20 years or more ago.

Criminal cases should be finalized within 5 years after they have been committed.

Amendment will lead to an abuse of the legal system.

Period should remain at 20 years.

Does not support the Bill.

The Bill mainly aims to correct a Constitutional deficiency as highlighted by the Constitutional Court which Court also went so far as to exercise their power relating to “reading in” and the Legislature is left to align the provisions of the two respective Acts with that of the Constitutional Court’s judgment.

Sonke and Masiphephe Network

Welcomes the decision to amend both the

Criminal Procedure Act and the Prescription Act.

They referred to the date of 27th April 1994 and

proposed that further clarity be given on why this

date is the effective date to ensure that citizens are

informed.

Noted.

We do not agree that this matter be dealt with in the Bill.  The Bill before the Committee does not refer to that date any longer.

Women’s Legal Centre

They obtained a legal opinion from counsel on the

constitutionality of time bar provisions with

specific reference to sexual offences.  The

following was mentioned:

*There are many Acts that impose a time bar on the

institution of legal proceedings against a defendant.

*Although there has never been a direct

challenge to the constitutionality of the

Prescription Act , the CC has accepted that

prescription periods imposed by the Act limit the

right to access to justice in section 34 of the

Constitution.

*Hence the question arises whether the three year

prescription period for civil debts is reasonable and

justifiable ito section 36 of the Constitution.

*In practice in litigation it is difficult to point out

The legitimate government purpose of prescription

periods.

*Prescription provisions that apply without the

necessary sensitivity to the unique nature of claims

arising from sexual conduct act obstruct the

vindication of constitutional rights through delictual

remedies and the plaintiff bears an evidentiary

burden to show that she/he was unable to institute

proceedings within three years due to a mental or

psychological condition.

Noted. 

The general comments on the Prescription Act fall outside the ambit of the Bill.

The Department wants to point out the need for legal certain and finality in respect of disputes.  These provisions also contribute to the efficiency in the administration of justice. 

NAME OF INSTITUTION

COMMENTS/RECOMMENDATIONS

DOJCD RESPONSE

Clause 1:  Proposed amendment of Prescription Act, 1969

1. Proposed new section 12(4)(a) and (b) Prescription Act:

Legal Resources Centre

(a) It cannot be reasonably expected that a survivor of a sexual offence would institute civil proceedings “within 3 years of a sexual offence.”.  The LRC argues that section 12 infringes on the victim’s right to human dignity as it limits a victim’s right to redress.

(b)  The inclusion of “or any other factor that the court deems appropriate” is supported.

(a) The department does not agree with the LRC’s statement.  Section 12(4) requires that a survivor must institute civil proceedings within 3 years after he or she has recovered from any mental or psychological impediment that prevented him or her from doing so earlier.  The date on which the alleged offence was committed is irrelevant for the “three year” period stipulated in section 12(4).

(b) Noted.

Women’s Legal Centre

(a) Welcomes the fact that the Bill recognises that no distinction may be made between the different types of sexual offences.

(b) The Bill does not make any express provision for the retrospective or retroactive application or operation of section 12(4) of the Act.

The Bill as introduced contained a proposed new subsection (4)(b) that aimed to provide that the proposed amendment would be regarded as having commenced on 27 April 1994.  [The provision was removed in the B-version of the Bill that is before the Select Committee.]

The WLC argues that section 12(4) will not apply to a “debt arising from sexual offences before 27 April 1994.”.

The WLC recommends that section 12 should be amended to reflect that prescription shall not commence to run in respect of a debt based on the commission of a sexual offence.

(a) Noted.

(b) The Department does not agree.  The provisions of section 12(4) only become relevant on the date that a victim of an alleged sexual offence is free from any intellectual disability, disorder or incapacity (obstacles) that prevents him or her from instituting civil proceedings.  Only when these obstacles have been removed or are no longer relevant will the provisions of section 12(4) become relevant in order to determine when the 3-year period shall start running irrespective of the date on which the alleged sexual offence, giving rise to the civil proceedings, was committed.

Section 12(4) recognises that—

(i) a person may be unable to act (institute proceedings) as a result of the above obstacles; and

(ii) prescription only starts to run after the above obstacles have been removed.

The date on which the alleged offence was committed is irrelevant for purposes of section 12(4).  Section 12(4) only concerns itself with the date on which the alleged victim is able to act (institute proceedings).

In view of the above it is therefore not necessary to make provision for offences that were committed before 27 April 1994.

Core Acumen Consulting

(on behalf of Kuhluka Movement)

Any time period within which proceedings must be instituted should be removed for the institution of civil litigation or criminal prosecution of sexual offences. 

They based their motivation on a court case which dealt with reasons for delayed reporting where children are victims, in which it was accepted that the reasons apply equally to the delayed disclosure of adult survivors of sexual abuse.

They proposed the following wording for section 12(4):

“Prescription shall not run in respect of a debt based on the commission of an alleged sexual offence as contemplated in  the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; an alleged offence as provided for in sections 4, 5, [6] and 7 [and 8(1)] and involvement in these offences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013 and all other sexual offences whether in terms of common law or statute”. (They deleted the requirements relating to the inability of a creditor to institute proceedings due to metal or psychological conditions. 

The Department does not support the proposal.  The institution and conclusion of civil proceedings should not be allowed to “hang in the air” for an indeterminate period of time.  Such a situation will inevitably impact negatively on legal certainty, fairness and equality before the law.

There is no need to refer to the SORMA as it is included in the expression “statute”. 

Commission on Gender Equality

Recommends that prescription should be removed insofar as it applies to debts arising from sexual offences.

They expressed the view that what the court in Levenstein said in relation to the reasons for delayed disclosure is also applicable to survivors who may otherwise have approached the civil courts, were it not for the limitation of their right to do so imposed by the prescription Act.

It is submitted that in view of the proposed amendments to sections 12 and 13 of the Act it is not necessary to remove prescription in respect of sexual offences.  Sections 12 and 13 will accommodate the situation of claimants who were subjected to sexual offences to the extent that section 12 provides for when prescription starts to run and the proposed amendment of section 13 aims to provide for when prescription will be interrupted.

Sonke and Masiphephe Network

They came to the conclusion that due to the

amendment of section 12(4), this means that the

civil claim also does not prescribe, a welcome

benefit to victims of sexual violence.

Noted

Clause 3:

Proposed amendment of section 18 of Criminal Procedure Act, 1977:

Ewan-Nize Gerber

Mentions three aspects that will have an impact on the successful prosecution of perpetrators, namely—

(i) the moral standing of the community of 40, 50 years ago should be ignored in the prosecution of offenders;

(ii) the nature of the offence, for example, sexual assault should not be a prohibitive factor in the prosecution of an offender; and

(iii) the age of the offender should not be taken into consideration when deciding to institute a prosecution or not.

Noted. 

The factors referred to are practical factors to be taken into consideration when a decision is made to institute a prosecution or not.  It is submitted that any decision by the Legislature to interfere in the realm of prosecutorial discretion should not be taken lightly.

P J Gerber

(a) Supports the Bill.

(b) The age or frailty of an alleged perpetrator or even the physical whereabouts of the alleged perpetrator or victim should not be factors to be taken into consideration when a decision is made to institute a prosecution or not.

(a) Noted.

(b) It is submitted that any decision by the Legislature to interfere in the realm of prosecutorial discretion should not be taken lightly.

Legal Resources Centre

The WLC supports the removal of the distinction that was drawn between rape and compelled rape and all other sexual offences.

Noted.

Women’s Legal Centre

Supports the proposed amendment of section 18 of the CPA.

Noted.

Core Acumen Consulting

(on behalf of Kuhluka Movement)

Proposed that paragraph (f) of section 18 of the CPA be amended to read as follows:

 “an offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 and all other sexual offences whether in terms of common law or statute.

The Department is of the view that the reference to the SORMA in the said paragraph is unnecessary because that Act is included in the expression “statute”.

Commission on Gender Equality

Fully supports the proposed amendment of section 18 as worded in clause 3.