A WOMAN who claims she was raped almost 40 years ago will go ahead with her case at the end of the month, despite the four-decade delay, the Women's Legal Centre in Cape Town said yesterday.
The Constitutional Court set aside a high court ruling, saying the lower court had failed to take into account the nature of the alleged wrongdoing and the trauma associated with it, which resulted in the delay in instituting legal action.
The woman approached the Constitutional Court after laying the charge for the rape, allegedly committed between 1968 and 1970, had failed.
The accused, now nearly 80 years-old, denied the allegations and made an application in the high court in Kimberley for a permanent stay of private prosecution, claiming it infringed his constitutional right to a fair trial.
Many of the people he could have called to give testimony had died and he would not be able to verify or refute many of the details provided as evidence because so much time had passed, he said.
The high court granted the stay on the grounds that the woman "unreasonably delayed" instituting proceedings and that such a delay would cause the accused irreparable trial prejudice.
The Constitutional Court, however, held the high court would only be in a position to test prejudice during the trial, and that the accused's right to be assumed innocent until proven guilty would protect him.
"The decision has developed the law from a women's rights perspective," said Cherith Sanger, an attorney at the Women's Legal Centre, which acts as a consultant for the claimant.
"It recognises the seriousness, gravity and impact of child sexual abuse and guarantees women access to the courts in order to address injustices that they suffered as children."
Sanger said the 52-year-old claimant was positive about the case and confident of winning it .
"What has happened so far... is a positive step in our Constitution for women who were (allegedly) sexually abused as children," she said.
"The claimant, led by her lawyer Steven Groenewald... will proceed with her case in the Kimberley regional magistrate's court at the end of October 2009." - Sapa