Authors: Zunaid Lundell and Maxine Naude
On 20 December 2020, President Ramaphosa assented to the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act No. 15 of 2020 (Amendment Act), which amended certain sections of the Prescription Act No. 69 of 1968 (Prescription Act). In particular, the Amendment Act aimed to extend the list of sexual offences in respect of which prescription does not commence, and to provide clarity regarding the circumstances under which this would apply. This article will discuss the meaning of prescription and the effect of the Amendment Act on the prescription of delictual matters where a sexual offence is implicated, such as in cases of sexual harassment in the workplace.
WHAT IS PRESCRIPTION?
Prescription is governed by the Prescription Act and is a legal principle aimed at promoting legal certainty. It also underscores the concept that certain types of obligations may be extinguished or rendered unenforceable through the effluxion of time[i]. Section 12(1) of the Prescription Act provides that prescription shall commence as soon as the debt is due.
Ordinarily, a delictual claim will prescribe three years after the debt becomes due. Furthermore, in terms of Section 12(3) of the Prescription Act, the debt will not be deemed to be due until the creditor (the victim) has knowledge of both (i) the identity of the debtor (the perpetrator) and (ii) the facts from which the debt arises. However, this is subject to the proviso that the victim shall be deemed to have such knowledge if she could have acquired it by exercising reasonable care.
In Truter v Deysel 2006 (4) SA 168 (SCA), the court held that:
‘”debt due” means a debt, including a delictual debt, which is owing and payable. A debt is due in this sense when the creditor acquires a complete cause of action for the recovery of the debt, that is, when the entire set of facts which the creditor must prove in order to succeed with his or her claim against the debtor is in place or, in other words, when everything has happened which would entitle the creditor to institute action and to pursue his or her claim.[ii]
In a delictual claim, the requirements of fault and unlawfulness do not constitute factual ingredients of the cause of action but are legal conclusions to be drawn from the facts.[iii]’ (Added emphasis).
A delictual claim will therefore prescribe three years after the victim has full knowledge of the delict committed, however, knowledge of unlawfulness and fault are excluded. In Claasen v Bester[iv] the court held that knowledge of legal conclusions is not required before prescription begins to run. Judge Zondo re-affirmed this principle in Mtokonya v Minister of Police where he held that Section 12(3) does not require the victim to have knowledge of any right to sue the perpetrator nor does it require him or her to have knowledge of legal conclusions that may be drawn from “the facts from which the debt arises”[v].
Ultimately, the debt (right to compensation) shall not be deemed to be due until the victim has knowledge of both the identity of the perpetrator and the facts from which the right to sue arises. The courts have held that the lack of knowledge of a legal remedy or that the conduct is wrongful and unlawful does not prevent prescription from running. Provided the victim has knowledge of the (i) conduct, the (ii) harm and the (iii) causation, prescription will continue to run. In some cases, knowledge of the negligence of the perpetrator may be required where this leads to knowledge of a causal link (as can be seen in the Links case[vi]).
PRESCRIPTION IN CIVIL AND CRIMINAL MATTERS (SEXUAL OFFENCES) AMENDMENT ACT
It is important to note that Section 12 of the Prescription Act has recently been amended by the Amendment Act which states that ‘prescription does not commence to run under certain circumstances regarding a debt that is based on the alleged commission of any sexual offence in terms of the common law or statute’[vii]
(Added emphasis). This amendment is a move in the right direction for those who have been subjected to Gender-Based Violence (GBV) or sexual harassment in the workplace as it allows them to come forward and institute legal action irrespective of the length of time that has passed since the offence was committed.
The Amendment Bill states that:
‘Prescription shall not commence to run in respect of a debt that is based on the alleged commission of any sexual offence in terms of the common law or a statute and offences as provided for in sections 4, 5, 6, 7 and 8(1) and involvement in these offences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013, during the time in which the creditor is unable to institute proceedings because of his or her mental or intellectual disability, disorder or incapacity or because of any other factor that the court deems appropriate.’
Therefore, prescription will not run where a victim fails to bring a claim against the perpetrator within the prescribed prescription period as a result of her/his mental disability, disorder or incapacity which has arisen due to the nature and effect of the respective sexual offence that he/she has been subjected to.
In terms of Section 12(1) of the Prescription Act No. 68 of 1969 (Prescription Act) prescription shall commence as soon as the debt is due. Ordinarily, this means that a delictual claim will prescribe three years after the cause of action arose. However, the Amendment Act provides that prescription will not commence in respect of conduct that is based on the alleged commission of any sexual offence in terms of the common law or statute during which time the victim is unable to institute proceedings because of his or her mental or intellectual disability, disorder or incapacity or because of any other factor that the court deems appropriate.
Amidst the pervasive scourge of GBV across South Africa and the helplessness that survivors or victims of GBV often feel, the Amendment Act is a welcomed development in our law and a form of relief for the victims of such conduct. It enshrines the principle of redress for survivors or victims of conduct such as GBV who may otherwise have been left without remedy due to the effluxion of time, a period within which such survivors may only begin to recover mentally from their experience of GBC or sexual harassment in particular.
[iii] Note 2 at para 17
[vi] http://www.saflii.org/za/cases/ZACC/2016/10.html at para 45. ‘In a claim for delictual liability based on the Aquilian action, negligence and causation are essential elements of the cause of action. Negligence and….causation have both factual and legal elements. Until the applicant had knowledge of the facts that would have led him to think that possibly there had been negligence and that this had caused his disability, he lacked knowledge of the necessary facts contemplated in section 12(3)’
[vii] Note 1 at section 1