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Article by listed attorney: Fawzia Khan

The allegations of rape against famous comedy legend Bill Cosby made by a number of different women, spanning several decades, all of whom allege  similar modus operandi by Cosby, has sent shockwaves across the world. Cosby is accused of being a sexual predator who would drug and then rape women he was in contact with. As far as I’m aware no criminal charges have been brought against him as yet. In New York, there is no time limit for crimes such as rape and Cosby could theoretically face imprisonment if he is charged and found guilty. Similarly the allegations made against Woody Allen, the famous New York actor and playwright, by his adoptive daughter Dylan Farrow, who alleged that she was repeatedly sexually, was equally startling to hear.

In this issue we take a brief look at the rights of women in South Africa who were child rape victims. In this country we also do not have any limitations of statute on crimes committed. This means for example if a crime of rape against a child was committed decades earlier and only unearthed later, our law will allow the victim to seek justice through the legal system, 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”.

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