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Rape victim's fight to bring civil claim after 40 years could change SA law

30 April 2021 4:20 PM
Tags:
Rape
Gang rape
Sexual offences
Durban High Court
The Midday Report
Lester Kiewit
prescription on sexual offences

It's hoped the case could overturn the 3-year prescription on civil claims for sexual offences. The WLC's Bronwyn Pithey explains.
© Sezer özger/123rf.com 

A woman who says she was gang-raped 40 years ago has brought her case to the Durban High Court.

The problem is that it is a civil claim.

The now-57-year-old woman wants to sue her alleged attackers for R600,000 for damages and future medical expenses.

RELATED: 'Abuse silences you' - Sharing the story of SA's oldest sexual abuse case

While there is currently no time limit on criminal prosecution for rape, a civil claim has to be instituted within three years of the alleged offence.

The Women's Legal Centre (WLC) is helping the alleged victim to change South Africa's law of prescription in civil matters.

Lester Kiewit asks WLC attorney Bronwyn Pithey to explain.

Pithey notes that civil and criminal cases are totally separate matters - no criminal charge needs to be laid against a perpetrator to pursue a civil claim against that person.

"There are different standards of proof that are required in a criminal trial as opposed to a civil trial (which is a lesser standard)."

There was a Constitutional Court case and the law has subsequently been amended, that says there is no bar to the National Prosecuting Authority instituting a criminal prosecution against anyone. There's no time frame in which a criminal prosecution must be brought.

Bronwyn Pithey, Attorney - Women's Legal Centre

In a situation like this, then, the NPA can proceed with the prosecution of a rape case or any other sexual offence after 10/20/30/40 years, obviously if all the parties involved are still alive.

Bronwyn Pithey, Attorney - Women's Legal Centre

However, this is not the case with civil prescription in South Africa.

"Our law currently says that, generally, someone must bring a civil claim within three years" says Pithey.

An exception applies to a victim of any sexual offence (since an amendment last December) if they are unable to bring the civil claim - i.e. prescription is interrupted.

Your three years doesn't start to run [in that case]. Once you are able (and that is open to interpretation) to bring the claim, then you have three years in which to bring that claim.

Bronwyn Pithey, Attorney - Women's Legal Centre

What we are challenging in this situation is that we don't believe that victims who already face so many barriers within both the criminal justice system and the civil system... to achieve some semblance of justice... should have to jump through this extra hoop...

Bronwyn Pithey, Attorney - Women's Legal Centre

...of now having to show the court, first, that they were unable to bring the claim and then only move on to the merits in terms of proving their claim.

Bronwyn Pithey, Attorney - Women's Legal Centre

Listen to the Pithey's discussion of the case on the Midday Report:




30 April 2021 4:20 PM
Tags:
Rape
Gang rape
Sexual offences
Durban High Court
The Midday Report
Lester Kiewit
prescription on sexual offences

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