SCA rules on child sexual abuse claims for civil damages brought later in life

Published in: Legalbrief Today
Date: Tue 28 September 2004
Category: Human Rights
Issue No: 1183

On Monday, 27 September 2004 in the first case of this kind in South Africa, the Supreme Court of Appeal (SCA) handed down a ruling that prescription will only start to run in child sexual abuse claims brought by adult survivors of such abuse once the survivor is aware that they were not to blame for the abuse.

The SCA agreed with the Women’s Legal Centre, (WLC) acting on behalf of the appellant, Esme Van Zijl, that courts cannot treat sexual abuse cases as equivalent to other damages cases and that abused children must have right of recourse against their abusers: “Until the 1980s the right was seldom invoked, and in South Africa, probably not at all. Major reasons were cultural or societal taboos (many abusers are close family members) and ignorance.”

Michelle O’Sullivan, the Director of the WLC, says, O’Sullivan says, “The case will impact on how future cases of child sexual abuse will be handled by the courts, as other survivors will now be able to bring claims knowing that the law has developed an appreciation of the psychological obstacles that prevent adult survivors from bringing such claims. The law no longer conspires with perpetrators of child abuse to silence victims by preventing survivors from claiming damages later in life, as it is now recognised that it is the abuse itself that often prevents a survivor from taking action. Abusers will not be able to rely on the Prescription Act to avoid such claims.”

“In terms of prescription laws in South Africa a minor has three years after attaining majority within which to bring a claim for civil damages. However, Van Zijl initiated her claim for damages for psychological disturbance and other injuries sustained as a result of the childhood sexual abuse well beyond the three-year time limit.”

The SCA on the other hand accepted that Van Zyl only became aware of the links between the child abuse suffered and the harm it had caused her later in adulthood.

The facts

The appellant, Esme Van Zijl, brought a civil claim for damages arising as a result of sexual abuse perpetrated by her uncle, Imker Hoogenhout, between 1958 and 1965. Her uncle sodomised, raped and sexually abused her from the time that she was six years old until she was 15. Van Zijl instituted her action against Hoogenhout in 1997 along with three other plaintiffs who were also sexually abused by Hoogenhout. In the Cape High Court Judge Nel held that her evidence that she first realised in 1997 that it was not she but the defendant who bore responsibility for the physical, psychological and emotional damage which she suffered since 1958 was of no assistance to her and that her claim had prescribed three years after she turned 21 in 1973.

THE JUDGMENT ON APPEAL

The effect of this decision is that survivors of childhood sexual abuse who only discover the consequences of the abuse and the extent of the harm suffered later in life, which is often the case, should not be time-barred. The SCA accepted that the phenomenon of childhood sexual abuse justifies special consideration by reason of the uniqueness of the problems it presents:

“The psychological studies that have been undertaken into the sexual abuse of children have revealed effects on the victims which are very different from those suffered by the usual plaintiff in a delictual action…The prescription statutes in force in this country were drafted in ignorance of and without consideration for the special problems afflicting such survivors… More people have become attuned in the last fifteen years or so to acknowledging the existence of child sexual abuse and to taking steps to eradicate it. This situation of a victim during the childhood of the plaintiff and a substantial part of her adult life was not conducive to disclosure…In addition the plaintiff is entitled to the benefits of a constitutional dispensation that promotes rather than inhibits access to courts of law.”

O’Sullivan said the SCA relied extensively on expert evidence to the effect that survivors of child sexual abuse often blame themselves for the abuse and manifest feelings of intense powerlessness, helplessness, loss and betrayal during the abuse and well into adult life. “It is therefore only when survivors of child sexual abuse realise that they are not to blame for the acts committed and that they are not responsible for the abuse and its consequences that they can then take steps to hold perpetrators accountable.”

“The Court accepted that the essential question should be when the survivor in question has sufficient knowledge to proceed with her claim – which entails being able to draw the connection between the sexual abuse and the consequences later in life and realising that he or she is not to blame for the abuse.”

The Court held that in this case there was evidence that indicated prima facie that the plaintiff was not aware until recently that it was not she who was the cause of the abuse but rather the defendant: “ It is more likely that the plaintiff developed insight, and with it meaningful knowledge of the wrong that sets the prescriptive process in motion, only when the progressive course of self-discovery finally removed the blindfold she had worn since the malign influences which I have described took over her psyche.”

Press release prepared by: Beachhead Media and Investor Relations
Contact: Dani Cohen or Jyoti Narshi on Tel: 021 469 9000
On behalf of: The Women’s Legal Centre
Contact: Michelle O’Sullivan on Tel: 021 421 1380