Van Zijl v Hoogenhout

Supreme Court of Appeal -34803 Hearing date: 30 August 2004
  Judgment date: 27 September 2004
Summary:Prescription – Act 18 of 1943 s 5(1)(c) - claim by adult survivor of child abuse against perpetrator – assaults committed between 1958 and 1967 – plaintiff attaining majority in 1973 – effect of abuse on ability to attribute blame to abuser – plaintiff not having knowledge of the wrong until able to do so.

Media Summary of Judgment


From: The Registrar, Supreme Court of Appeal

This media statement is released for informational purposes only. It does not form part of the Court’s judgment.

On 27 September 2004 the Supreme Court of Appeal handed down judgment in Esmé van Zijl v I M Hoogenhout. It held that a victim of sexual abuse as a child who only in adulthood acquired an appreciation of the responsibility of the abuser for the abuse may sue the abuser within three years of acquiring that appreciation.

The appellant suffered gross sexual abuse at the hands of her uncle, the respondent, during eight years of her childhood. When, at the age of 48, the appellant sued him for damages he pleaded that her claim had prescribed within one year of her attaining her majority in 1973. The Cape High Court upheld the plea and dismissed the claim. It found that the appellant had knowledge of the wrong upon which her claim was based from the d ates on which the assaults were committed.

The Supreme Court of Appeal has now set aside that order and substituted for it one that dismisses the special plea and remits the case to the High Court for consideration of the remaining issues.

In reaching this conclusion the Court found that

- the effects of sexual abuse on children and adult survivors are very different from those suffered by the usual plaintiff in a delictual action;

- there has been a change in public awareness of child sexual abuse; increased knowledge and a better-informed public are more conducive to disclosure than was the case during the appellant’s childhood and early adulthood;

- the Prescription statutes were drafted in ignorance of the special problems afflicting victims of such abuse;

- peculiar sensitivity is required in applying statutory time limits to proceedings arising from sexual abuse of a child during any period prior to about 1980.

- when the 1943 Prescription Act speaks of prescription beginning to run when a wrong is ‘first brought to the knowledge of the creditor’ it presupposes a creditor who is capable of appreciating that a particular person is responsible for that wrong.

The Court’s examination of the evidence established that known psychological consequences of chronic child abuse are a distancing of the victim from reality and transference of blame by the victim on to himself or herself. Such effects can and do sometimes persist into middle age. The appellant’s history was one of chronic abuse and her personality possessed many of the characteristics which are found in adult survivors including transference of blame on to herself. Her evidence that only in late 1996 did she begin to appreciate that the respondent, and not herself, was responsible for the abuse was, in the circumstances, credible and probable. The process was progressive. It only led to meaningful appreciation ( ‘knowledge of the wrong’ committed by the respondent) sometime during 1997. She then instituted action within the three years allowed her by the statute.