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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-08-30
In this month of August, as the rights and consequent empowerment of women is celebrated by women nationally across of all sectors of South African society, we take a brief look at the rights of those unfortunate women who were child rape victims, and who now attempt to seek justice through the legal system, decades later, from the heinous crimes committed against them whilst they were young, innocent and vulnerable.

In 2007, a woman Mrs. B then 51 years old claimed that 39 years ago when she was 13 years old, a wealthy family friend, Mr. E, raped her on a farm and that he continued to sexually abuse her for more than two years. The Director of Public Prosecutions (DPP) however declined to prosecute.

Mrs. B then instituted a private prosecution. In terms of our criminal justice system a person can, in certain circumstances, institute a private prosecution. The DPP must issue a certificate called a "nolle prosequi", which will confirm that it has carefully examined the statements of the victim and notwithstanding it still declines to prosecute.

The victim can then institute a private prosecution. Mr. E approached the High Court in Kimberly calling for a permanent stay in prosecution. He claimed that the period of some 39 years was an unreasonable delay and that should Mrs. B proceed with her charges, he would suffer irreparable prejudice and would be denied his constitutional right to a fair trial.

He said that all his material witnesses including his domestic worker who lived on the farm, were now deceased and the relevant records to prove that what cars he owned couldn't be retrieved now 40 years later. Mrs. B then took the matter to the Constitutional Court.

This Court found that especially when such serious crimes like murder and rape were alleged, one needed to strike a balance between an accused's right to fair trial as well as the rights of victims and society in general.

The court used several judgments to support its decision including the case of Masiya v Director of Public Prosecutions, Pretoria where Judge Nkabinde classified rape as "the most reprehensible form of sexual assault.

She said that our courts are required "to protect the dignity, sexual autonomy and privacy of women and young girls, as they are the most vulnerable group and that these values are enshrined in the Bill of Rights which is a cornerstone of our democracy".

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance.