Does prescription apply to crimes?

“Of late there has been quite a number of media reports locally and internationally of victims of rape or sexual assault coming forward with claims of abuse having occurred many years ago. I know that debts can prescribe, but was wondering if criminal charges can also prescribe?”

Prescription in the general legal sense speaks to the time in which one can claim from another for a specific debt, and if not done, that claim can prescribe (fall away). Generally for civil claims, a well-known period of 3 years applies. But does criminal law have the same prescriptive periods?

Popular belief is that crimes do not have a prescription period and that you can be prosecuted for a crime even after many years have passed. In South Africa, this is not true as Section 18 of the Criminal Procedure Act 51 of 1977 determines that the State may not institute criminal proceedings against a suspect if 20 years have passed from the date that the offence was committed. This means that if you were involved in a car accident on the 25th of June 1998 and could be guilty of reckless or negligent driving, if the state instituted criminal proceedings against you on the 27th of June 2018, you could use a special plea of prescription and the State would be barred from continuing with the charge against you.

Importantly though, the provisions of section 18 are not an absolute defence against all charges. The section makes provisions for specific exceptions for serious crimes which can still be prosecuted at any time after the 20 year period from date of incident has lapsed. These crimes include for example: 

1. Murder
2. Treason commited when the Republic is in a state of war
3. Aggravated robbery
4. Kidnapping
5. Child-stealing
6. Rape or compelled rape
7. Genocide, crimes against humanity and war crimes
8. Crimes and involvement in human trafficking
9. Trafficking in persons for sexual purposes
10. Using a child or person who is mentally disabled for pornographic purposes
11. Torture

It is important to note that section 18(f) in its current form has been declared unconstitutional by our Constitutional Court which has expanded the sub-section to also include all other sexual offences and not just rape or compelled rape, effectively negating a defence of prescription for any sexual offence.

Section 18 will not however apply if some other period is expressly provided for by law, for example, if the accused is charged in terms of the Defence Act 44 of 1957 which applies to military personnel and stipulates its own period of prescription (e.g.3 years). 

It should also be noted that prescription is interrupted by the institution of a prosecution (when a summons is issued).

What is clear is that prescription does apply in criminal cases, but with limitations and important exceptions for serious crimes where the demands of justice dictate that an offender may not escape responsibility merely because of the passage of time.

July 12, 2018
Human Rights: Upholding the right to education

Human Rights: Upholding the right to education

The right to education is outlined in section 29 of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”). This section guarantees that everyone has the right to basic education and the right to further education, which the state, through reasonable measures, must make progressively available and accessible. In South Africa the right to basic education can be described as a fundamental socio-economic right, that is, an entitlement to conditions and resources necessary for the material well-being of people.

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