As things stand, the law states that all claims have to be instituted within three years, except in cases of a sexual offence, where prescription does not begin to run if the claimant is unable to bring the claim because of “her mental health, intellectual disability or incapacity”.
The claimant bears the burden, in evidence, to justify this.
The woman says that while she has good reason for not taking action earlier, she should not have to explain herself in order to sue for damages.
The matter, which is being handled by the Women’s Legal Centre, has been instituted out of the Durban High Court.
In the summons, the now 57-year-old woman names two of the men who, she says, were part of the group who attacked her at a party when she was 18.
She says she and the first defendent had consensual sex. He then “invited or permitted” the second defendant, and other men to come into the bedroom, who then raped and sexually assaulted her for three to four hours.
She says they only stopped when the second defendant’s brother came into the room and told them to stop, and leave the property.
In consequence, she says in her pleadings, she was degraded and humiliated, has poor self-esteem and suffers from depression, and cannot hold down a job or a proper relationship.
She is claiming R600,000 from them for general damages and future medical expenses.
In their defence of the claim, the two men raised the issue of prescription. They said that while the law provided that prescription would not commence in a case of an alleged sexual assault, this was only if the claimant could not institute proceedings because of his or her mental or psychological condition: “While she alleges that she did suffer severe and emotional trauma, she does not allege that she was unable to institute proceedings because of it.”
Because of this, prescription began to run in November or December 1981 for a period of three years, and she was way out of time to sue.
They denied all the allegations against them, and asked that her claim be dismissed.
In its response, the Women’s Legal Centre said the Prescription Act was inconsistent with the Constitution, in part because it permits perpetrators of sexual offences to avoid civil consequences. It limits the right to human dignity, the right to approach a court for appropriate relief, and the state’s ability to meet its obligations to protect, fulfill and promote the rights of women, children, vulnerable people and survivors of sexual offences.
Further, it does not present survivors of sexual offences with an adequate and fair opportunity to seek judicial redress.
There were unique features of sexual offences, including the intimate nature of the conduct, the psychological and emotional impact and “complex trauma”, lack of support systems and cultural and social myths.
In addition, provisions of the Act were irrational and arbitrary “to the extent that they extinguish the right of a survivor to pursue a civil claim under common law when the Criminal Procedure Act provides that the right to institute a prosecution in respect of a sexual offence, does not lapse”.
As an alternative argument, it is claimed that the Act provides that prescription does not begin to run in a matter involving a sexual offence if the claimant was unable to institute proceedings.
In this matter, the claimant says at the time she did not wish to tell her parents what had happened to her; she feared she would not be supported or might even be blamed.
“She felt ashamed and alone. And she feared it would damage her own reputation in the community and she would be seen as ‘promiscuous’.”
Her lawyers have now published a Rule 16 notice, advising of the constitutional issues raised, alerting interested parties of the litigation should they wish to have input or join the proceedings.