Marianne Merten
A Constitutional Court ruling has opened the way for a teenage Cape Town schoolgirl to claim damages from the Western Cape Department of Education because she was raped by a teacher.
Last week the court declared invalid a law that allows aggrieved South African citizens only 90 days to give written notice of their intention to claim damages from local and provincial authorities.
Section 2 of the 1970 Limitation of Legal Proceedings (Provincial and Local Authorities) Act was ruled invalid because it contravened the constitutional right to access to courts and overreached any justifiable limitation of rights permissible under Section 36 of the Constitution.
“This is particularly so if one takes into account that many potential litigants [arguably the majority] are poor, sometimes illiterate and lack the resources to initiate legal proceedings within a short period of time. Many are not even aware of their rights and it takes time for them to obtain legal advice,” the Constitutional Court ruled.
The Cape Town-based Women’s Legal Centre, which appeared as a friend of the court, intends filing an application to claim damages from the Western Cape education department on behalf of a Cape Flats schoolgirl.
The teenager was repeatedly raped by a teacher, who has since been jailed.
However, up to now she was unable to bring a claim for damages because of the 90-day prescription period. Her only other remedy would have been to apply for a special court permission to pursue the claim which she was unlikely to get.
Deborah Qunet, an attorney for the centre’s Violence against Women project, said the legal advocacy group frequently takes up cases to bring about changes in discriminatory laws.
Part of the centre’s argument before the Constitutional Court included findings on the number of reported rapes by teachers from recent studies.
A Medical Research Council report Violence against Women in South Africa: Rape and Sexual Coercion estimates that 2,4% of rapists are teachers. Statistics South Africa, in a report last year, estimates that 13% of all reported rapes involve teachers or principals.
The Constitutional Court judgement came as a result of Sias Moise wanting to claim damages from the Greater Germiston Transitional Local Council after his daughter was injured when boarding a bus in 1998. But the council argued it was not liable because the prescribed 90-day notice period had lapsed.
Although the two parties reached a settlement after a hearing in the high court, that judgement had to be reviewed and confirmed by the Constitutional Court.
A Bill setting out new and uniform time frames for suing any level of government is before the National Council of Provinces. The Institution of Legal Proceedings Against Organs of State Bill is expected to be passed by the end of the year.