Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others (Case CCT: 170/17)
The Women’s Legal Centre welcomes the unanimous judgment handed down this morning (14 June 2018) by the Constitutional Court in the matter of Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others (Case CCT: 170/17).
The judgment was a confirmation of the order handed down on 15 June 2017 by Hartford, AJ sitting in the High Court of South Africa, Gauteng Local Division, Johannesburg. The case concerned the constitutionality of section 18 of the Criminal Procedure Act 51 of 1977 (the CPA), which prohibits the prosecution of sexual offences, other than rape or compelled rape, beyond a period of twenty years from the time when the offence was committed. The High Court declared this section of the Act to be constitutionally invalid, and held that its relief should extend to both child and adult survivors (in line with the relief sought by the Women’s Legal Centre). The Court suspended the order of invalidity and ordered that, pending the enactment of remedial legislation or the lapse of the period of suspension, the section should be read so as to allow for the prosecution of all sexual offences, irrespective of when they were committed.
The Women’s Legal Centre (WLC) was admitted to the High Court proceedings as an amicus curiae, and to the Constitutional Court proceedings as the Fourth Respondent. The Teddy Bear Clinic and Lawyers for Human Rights were the fifth and sixth respondents respectively. The Women’s Legal Centre has, as one of its core objectives, the development of law, policy, and feminist jurisprudence based on an intersectional approach with substantive equality as its foundation. One of our core programmatic areas is Women’s Right to be Free from Violence, through which we advance the recognition of an accessible and responsive justice system that takes account of, and supports, the particular needs of women who are survivors of violence, and which provides optimal services and protection. In line with the objectives of the Centre, the WLC adduced evidence which illustrated some of the reasons for delayed disclosure of sexual offences by victims, irrespective of whether they are children or adults. In addition, the WLC demonstrated to the Court that section 18’s differentiation between rape and compelled rape on the one hand, and other sexual offences on the other, is irrational. The WLC’s evidence in respect of the impact of sexual offences on adult survivors placed the ‘personal, structural and social disincentives for reporting, as well as the psychological and physical reasons for delayed disclosure’ before the court.1 The Court allowed the WLC to adduce new evidence from Kathleen Dey of the Rape Crisis Cape Town Trust, and found that it was the only evidence before them relating to… ‘…adult trauma syndrome. The findings of this Court on the nature and extent of rape trauma syndrome would be a welcome addition to this Court’s jurisprudence since its judgment in Bothma.2 Moreover in order to consider the full extent of the impact of section 18, and whether it serves an important public interest, it is necessary to have information on the prevalence of sexual offences against women in South Africa and the percentage of female survivors of sexual offences who elect not to formally report the offences to the South African Police Service (SAPS) and why they do not do so. This is what the new evidence seeks to highlight.’3
The Court found that the primary rationale for the differentiation of sexual offences in section 18 was the idea that certain sexual offences are more serious and therefore traumatic than others. This notion, the Court accepted based on the WLC’s submissions, was based on ‘outdated, patriarchal ideas about the moral gravity and harmfulness of different sexual offences.’4 The WLC was able to point to three grounds on which to find the distinction between rape and compelled rape, and other sexual offences in section 18, irrational. These were: that the distinction was based on the fallacy that certain sexual offences (penetrative offences) are more serious than others (non-penetrative offences); that the distinction between sexual offences is artificial, and that their consequences being substantially the same; and that the distinction fails to acknowledge that ‘survivors of all sexual offences are faced with similar personal, social and structural disincentives to reporting’.5 The Court thus found the prescriptive periods in section 18, as they applied to sexual offences other than rape and compelled rape, to be irrational. The Court held that the section ‘fails to serve to protect and advance the interests of survivors of sexual assault’ and ‘works against their interests instead of promoting them.’6
The Court also accepted evidence submitted by the WLC in relation to the reasons why victims may delay reporting, as well as evidence which illustrated ‘the systemic failures that enable violence and exploitation of them [women and children] to occur.’7 Ultimately, the Court found the differentiation between rape and compelled rape, and other sexual offences in section 18 to be irrational. The Court stated that while sexual offences may differ in form, the consequential psychological harm may be similar.8 The Court ordered that the declaration of the constitutional invalidity of section 18 made by the South Gauteng High Court be confirmed, that the order be suspended for 24 months in order to allow Parliament to enact remedial legislation, and that during this period section 18(f) of the CPA is to be read as though it contains the words “and all other sexual offences whether in terms of common law or statute” after the words “the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively”.’
1Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others (Case CCT: 170/17) para 19.
2 Bothma v Els  ZACC 27; 2010 (2) SA 622 (CC); 2010 (1) BCLR 1 (CC).
3Levenstein supra (n 2) para 24.
4Levenstein supra (n 2) para 51.
5Levenstein supra (n 2) paras 20-21.
6 Levenstein supra (n 2) para 52.
7 Levenstein supra (n 2) para 55.
8 Levenstein supra (n 2) para 59.