The Constitutional Court is being asked to remove an apartheid era law which drew a distinction between rape and molestation which is deemed “less serious”.
Eight alleged sexual assault victims of businessman Sidney Frankel may never see justice. They came forward nearly four decades after the alleged molestation.
The NPA declined to prosecute because they had missed a 20-year deadline.
One might argue that Sidney Frankel cheated the system. At the time of the alleged offences in the 70’s and 80’s, rape was narrowly defined.
Frankel is accused of what would have then amounted to molestation, a lesser offence, with a 20 year expiry date.
Justice Edwin Cameron explored this aspect with the victim’s lawyer Anton Katz, says, “The pre-constitutional apartheid legislature had powers which the democratic legislature did not have. One of those powers was to confer an unjust immunity, according to your argument and according to the High Court judgment, on sexual offenders non rape violaters of people after 20 years and now you want us retrospectively to take that immunity away. Katz J Cameron, we submit it was not an immunity. It’s a procedural right that a suspect would have been granted by the apartheid legislature not a substantive right not to be prosecuted.”
It is alleged that Frankel preyed on vulnerable children, including orphans. He vehemently opposed the Constitutional Court challenge even up to his death bed.
The High Court later saddled his estate with half of the victims legal costs.
The Estate’s lawyer Sha’ista Kazee says the Justice Ministry, and therefore the taxpayer, should pay all of the costs.
Meanwhile, Katz argued for the Constitutional Court to simply scrap the law and be done with it.
“Why would they need 24 months from now? They’ve had 18 months to do something and they’ve done nothing. Why? Why didn’t the minister just go to parliament and correct the defect. Why is the executive using the court to achieve a parliamentary result?”