The applicant, Mrs Ptrue Bothma, instituted a private prosecution in 2007 against Mr Petrus Arnoldus Els, alleging that he had repeatedly raped her between 1968 and 1970 when she was between 13 and 16 years old. The alleged rapes occurred at Mr Els’s farm, to which he would regularly take her with her parents’ consent. Mrs Bothma explained that she did not report the offences earlier due to fear, shame, psychological trauma, and only fully appreciated that she was a victim of child rape decades later during counselling while incarcerated in the early 2000s. The Director of Public Prosecutions declined to prosecute and issued a certificate nolle prosequi, after which Mrs Bothma instituted a private prosecution under section 7 of the Criminal Procedure Act 51 of 1977. Mr Els denied the allegations and applied to the Northern Cape High Court for a permanent stay of prosecution, arguing that the nearly four-decade delay caused irreparable prejudice to his right to a fair trial due to faded memories, deceased witnesses, and missing documentary evidence. The High Court granted a permanent stay. Mrs Bothma sought leave to appeal directly to the Constitutional Court.
Leave to appeal was granted; the appeal succeeded; the order of the Northern Cape High Court permanently staying the private prosecution was set aside, allowing the prosecution to proceed.
This case is a leading Constitutional Court authority on the impact of long delays in prosecuting historical sexual offences, particularly child rape. It affirms that courts must be cautious in granting permanent stays of prosecution and must take into account the nature of sexual violence and the reasons for delayed reporting. The judgment balances accused persons’ fair trial rights with victims’ rights to access justice and society’s interest in prosecuting serious crimes.