REPUBLIC OF
SOUTH AFRICA
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL
--------------------------------
(As introduced in the National Assembly as a section
75 Bill; explanatory summary of Bill published in Government Gazette No. 25282
of 30 July 2003)
(The English text is the official text of the Bill)
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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B50―2003]
GENERAL
EXPLANATORY NOTE:
[ ] Words
in bold type in square brackets indicate omissions from existing enactments.
___________ Words
underlined with a solid line indicate insertions in existing enactments.
__________________________________________________________________________
B I L L
To comprehensively and extensively review and amend
all aspects of the laws and the implementation of the laws relating to sexual
offences, and to deal with all legal aspects of or relating to sexual offences
in a single piece of legislation, by—
* repealing the common law offence of
rape and replacing it with a new expanded statutory offence of rape, applicable
to all forms of sexual penetration without consent, irrespective of gender;
* repealing the common law offence of
indecent assault and replacing it with a new statutory offence of sexual
assault, applicable to all forms of sexual violation without consent;
* creating new statutory offences by
criminalising certain compelled sexual acts and the non-consensual exposure or display of persons to sexual acts,
pornography and certain parts of the human anatomy;
* repealing the common law offences of
incest, bestiality and a sexual act with a corpse and enacting corresponding
new statutory offences;
* enacting comprehensive provisions
dealing with the creation of certain new sexual offences against children and
mentally disabled persons, which are virtually the same as similar sexual
offences being perpetrated against adults, but the creation of these new same
but separate offences aims to address the particular vulnerability of children
and mentally disabled persons in respect of sexual abuse or
exploitation;
* eliminating the discriminatory
differentiation being drawn between the age of consent for boys and girls in respect
of consensual sexual acts with
children, by reducing the age of consent for boys the same as for girls,
from 19 to 16 years, and providing for special provisions relating to the
prosecution and adjudication of consensual sexual acts between children older
than 12 years but younger than 16 years;
* providing certain services to certain
victims of sexual offences, including affording a victim of certain sexual offences the right to
apply that the alleged perpetrator be tested for his or her HIV status and the right to receive Post Exposure
Prophylaxis in certain circumstances;
* providing law enforcement
agencies with new investigative tools when investigating sexual offences or
other offences involving the HIV status of the perpetrator;
* providing our courts with
extra-territorial jurisdiction when hearing matters relating to sexual
offences;
* establishing and regulating a
National Register for Sex Offenders;
* further regulating defences and other
evidentiary matters in the prosecution and adjudication of sexual offences;
* regulating the manner in which sexual
offence matters must be dealt with by all Government departments, including
making provision for the issuing of national instructions and directives to be
followed by the law enforcement agencies, the national prosecuting authority
and health care practitioners in order to achieve the objects of the Act ;
* making interim provision relating to
the trafficking in persons for sexual purposes; and
to provide for matters connected therewith.
PREAMBLE
WHEREAS the Bill of Rights in the Constitution of the
Republic of South Africa, 1996, enshrines the rights of all people in the
Republic of South Africa, including the right to equality, the right to
privacy, the right to dignity, the right to freedom and security of the person,
which incorporates the right to be free from all forms of violence from either
public or private sources, and the rights of children and
other vulnerable persons to have their best interests considered to be
of paramount importance;
WHEREAS several international legal instruments, including
the United Nations Convention on the Elimination of all Forms of Discrimination
Against Women, 1979, and the United Nations Convention on the Rights of the
Child, 1989, place obligations on the Republic of
South Africa towards the combating and, ultimately, eradication of violence
against women and children;
WHEREAS there is a relatively high
incidence of the commission of sexual offences in the Republic which, in turn,
has a particularly disadvantageous impact on vulnerable persons, the society
and the economy;
WHEREAS women and children, being particularly vulnerable,
are more likely to become victims of sexual offences, including adult prostitution
and sexual exploitation of a child;
AND WHEREAS the South African common law and
statutory law do not deal adequately,
effectively and in a non-discriminatory manner with many aspects relating to or
associated with the commission of sexual offences, and a uniform and
co-ordinated approach to the implementation of and service delivery in terms of
the laws relating to sexual offences is not often and consistently evident in
Government; and
thereby, in too many instances, failing to provide adequate and effective
protection to the victims of sexual offences and often exacerbating their
plight through secondary victimisation and traumatisation;
AND BEARING IN MIND THAT
the prevalence of the commission of sexual offences in our society is primarily
a social phenomenon, which is reflective of deep-seated, systemic
dysfunctionality in our society, and that legal mechanisms to address this
social phenomenon are limited and are reactive in nature, but nonetheless
necessary.
BE IT THEREFORE ENACTED by the Parliament of the Republic
of South Africa, as follows:—
INDEX
CHAPTER 1
DEFINITIONS
AND OBJECTS
1. Definitions and interpretation of Act
2. Objects
CHAPTER 2
SEXUAL
OFFENCES
Part
1: Rape and compelled rape
3. Rape
4. Compelled rape
Part
2: Sexual assault, compelled sexual
assault and compelled self-sexual assault
5. Sexual assault
6. Compelled sexual assault
7. Compelled self-sexual assault
Part
3: Exposure
or display of or causing exposure or display of sexual acts or genital organs, anus or
female breasts (“flashing”) or pornography to person
18 years or older
8. Exposure or
display of or causing exposure or display of sexual act to person 18 years or
older
9. Exposure
or display of or causing exposure or display of genital organs, anus or
female breasts to person 18 years or older
(“flashing”)
10. Exposure or
display of or causing exposure or display of pornography to person 18 years or
older
Part
4: Incest, bestiality and sexual acts
with corpse
11. Incest
12. Bestiality
13. Sexual act with corpse
CHAPTER 3
SEXUAL
OFFENCES AGAINST CHILDREN
Part
1: Consensual sexual acts with certain
children
14. Acts of
consensual sexual penetration with certain children (consensual rape)
15. Acts of
consensual sexual violation with certain children (consensual sexual assault)
Part
2: Sexual exploitation and sexual
grooming of children, engaging in sexual acts in presence of children and
exposure or display of or causing exposure or display of genital organs, anus
or female breasts (“flashing”) or pornography or sexual acts to children
16. Sexual
exploitation of child
17. Sexual
grooming of child
18. Exposure or display of or causing
exposure or display of sexual act to child
19. Engaging
in act of sexual penetration in presence of child
20. Engaging
in act of sexual violation in presence of child
21. Exposure or display of or causing of
exposure or display of genital organs, anus or female breasts to child
(“flashing”)
22. Exposure or display of or causing
exposure or display of pornography to child
CHAPTER 4
SEXUAL
OFFENCES AGAINST MENTALLY DISABLED PERSONS
Part
1: Sexual exploitation and sexual
grooming of mentally disabled persons
23. Sexual
exploitation of mentally disabled person
24. Sexual
grooming of mentally disabled person
Part
2: Engaging in sexual acts in presence
of mentally disabled persons and exposure or display of or causing exposure or
display of genital organs, anus or female breasts (“flashing”) or pornography
or sexual acts to mentally disabled persons
25. Exposure or display of or causing
exposure or display of sexual act to mentally disabled person
26. Engaging in act of sexual penetration in
presence of mentally disabled person
27. Engaging in act of sexual violation in
presence of mentally disabled person
28. Exposure or
display of or causing exposure or display of genital organs, anus or female
breasts (“flashing”) to mentally disabled person
29. Exposure or display of or causing exposure
or display of pornography to mentally disabled person
CHAPTER 5
SERVICES
FOR VICTIMS OF SEXUAL OFFENCES AND COMPULSORY HIV TESTING OF SEXUAL OFFENDERS
Part
1: Definitions and services for victims
of sexual offences
30. Definitions
31. Services for
victims relating to Post Exposure Prophylaxis and compulsory HIV testing of
sexual offenders
32. Designation
of public health establishments for purposes of providing Post Exposure
Prophylaxis and carrying out compulsory HIV testing
Part
2: Application for compulsory HIV
testing of alleged sexual offender by victim
33. Application
by victim or interested person for HIV testing of alleged sexual offender
34. Consideration
of application by magistrate and issuing of order
Part
3: Application for compulsory HIV
testing of alleged sexual offender by police official
35. Application
by police official for HIV testing of alleged sexual offender
Part
4: Execution of orders for compulsory
HIV testing and results of HIV tests
36. Execution of order and issuing of warrant
of arrest
37. Use of results of HIV tests
Part
5: Miscellaneous
38. Register of applications and orders
39. Confidentiality of outcome of application
40. Confidentiality of HIV test results
obtained
41. Offences and penalties
42. Regulations
CHAPTER 6
NATIONAL
REGISTER FOR SEX OFFENDERS
43. Prohibition
on certain types of employment relating to a child or children, or access to a
child or children, of or by certain persons who have been convicted of a sexual
offence against a child
44. Establishment
of National Register for Sex Offenders and designation of Registrar of Register
45. Objects of Register
46. Contents of Register
47. Persons whose names must be included in
Register and related matters
48. Removal of particulars from Register
49. Persons
entitled to apply for certificate in respect of particulars included in
Register
50. Confidentiality
and disclosure of information
51. Regulations
pertaining to Register
52. Interpretation
CHAPTER 7
GENERAL
PROVISIONS
Part
1: Defences, evidentiary matters and
extra-territorial jurisdiction
53. Defences
54. Evidence of previous consistent
statements
55. Evidence of delay in reporting
56. Extra-territorial jurisdiction
Part
2: National policy framework
57. National policy framework
58. Establishment of Inter-sectoral Committee
59. Meetings of Committee
60. Responsibilities, functions and duties of
Committee
Part
3: National instructions and
directives, regulations and repeal and amendment of laws
61. National instructions and directives
62. Regulations
63. Repeal and amendment of laws
Part 4: Transitional
provisions
64. Transitional provisions
Part 5: Transitional provisions relating to trafficking in
persons for sexual purposes
65. Application and interpretation
66. Trafficking in persons for sexual
purposes
67. Short title and commencement
Schedule
Laws repealed or amended
by section 63
CHAPTER 1
DEFINITIONS AND OBJECTS
Definitions and interpretation of Act
1. (1) In
this Act, unless the context indicates otherwise¾
“body fluid” means any
body substance which may contain HIV or any other sexually transmissible
infection, but does not include saliva, tears or perspiration;
"child" means—
(a) a person below the age of 18 years;
or
(b) with reference to sections 14 and
15, a person older than 12 years of age
but below the age of 16 years,
and
“children” has a corresponding meaning;
"complainant" means the
alleged victim of a sexual offence;
“Director of Public
Prosecutions” means a Director of Public Prosecutions contemplated in section 179(1)(b) of the
Constitution of the Republic of South Africa, 1996 and
appointed in terms of section 13 of the National Prosecuting Authority
Act, 1998 (Act No. 32 of 1998), acting in accordance with any directives issued
under this Act by the National Director of Public Prosecutions, where
applicable, or in accordance with any other prosecution policy or policy
directives contemplated in section 21 of the National Prosecuting Authority
Act, 1998;
"genital organs" includes the whole or part of the male and female genital
organs, and further includes surgically constructed or reconstructed genital
organs;
“HIV” means
the Human Immuno-deficiency Virus;
"mentally disabled
person" means a person affected by any mental disability, including
any disorder or disability of the mind, to the extent that he or she, at the
time of the alleged commission of the offence in question, was—
(a) unable to appreciate the nature and
reasonably foreseeable consequences of a sexual act;
(b) able to appreciate the nature and
reasonably foreseeable consequences of such an act, but unable to act in
accordance with that appreciation;
(c) unable to resist the commission of any
such act; or
(d) unable to communicate his or her unwillingness to participate
in any such act;
“Minister” means the cabinet member
responsible for the administration of justice;
“National Director of
Public Prosecutions” means the person contemplated
in section 179(1)(a) of the Constitution of the Republic of South
Africa, 1996 and appointed in terms of section 10 of
the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);
“pornography” includes any image,
however created, or any description of a person, real or simulated—
(a) engaged in a sexual act or sexual conduct;
(b) participating in, or assisting or facilitating another person
to participate in, a sexual act or sexual conduct; or
(c) showing or describing the body, or parts of the body, of such
person in a manner or in circumstances which, within context, amounts to sexual
exploitation, or in such a manner that it is capable of being used for the
purposes of sexual exploitation;
“Republic” means the
Republic of South Africa;
“sexual act” means an act of sexual
penetration or an act of sexual violation;
“sexual
conduct” includes—
(a) masturbation;
(b) male genital organs in a state of
arousal or stimulation;
(c) any
form of arousal or stimulation of a sexual nature of the female breast;
(d) the
undue or inappropriate exposure or display of or causing exposure or display of
genital organs, female breasts or of the anal region;
(e) sexually suggestive or lewd acts; or
(f) bestiality;
"sexual
offence" means any offence in terms of this Act;
“sexual penetration” includes any act which causes penetration to any extent
whatsoever by–
(a) the genital organs of one person into or beyond the genital
organs, anus, or mouth of another person;
(b) any
other part of the body of one person or, any object, including any part of the
body of an animal or any object resembling the genital organs of a person or an
animal, into or beyond the genital organs or anus of another person; or
(c) the
genital organs of an animal, into or beyond the mouth of another person,
and “sexually penetrates” has a
corresponding meaning;
"sexual violation" includes
any act which causes –
(a) direct or indirect contact between the—
(i) genital
organs or anus of one person or, in the case of a female, her breasts, and any
part of the body of another person or an animal,
or any object, including any object resembling the genital organs or anus of a
person or an animal;
(ii) mouth of one person and—
(aa) the genital
organs or anus of another person or, in the case of a female, her breasts;
(bb)
the mouth of another person;
(cc)
any other part of the body of another
person, other than the genital organs or anus of that person or, in the case of
a female, her breasts, which could –
(aaa) be used in an act of sexual penetration;
(bbb) cause sexual arousal or stimulation; or
(ccc) be sexually aroused or stimulated thereby;
or
(dd) any
object resembling the genital organs or anus of a person, and in the case of a
female, her breasts, or an animal; or
(iii) the mouth of the complainant and the
genital organs or anus of an animal;
(b) the masturbation of one person by
another person; or
(c) the insertion of any
object resembling the genital organs of a person or animal, into or beyond the
mouth of another person,
but does not include an act of sexual
penetration, and “sexually violates” has a corresponding meaning; and
"this Act" includes
any regulations made under this Act, including the regulations made under
sections 42, 51 and 62.
(2) For the purposes of sections 3, 4, 5(1), 6, 7, 8, 9, 10, 16, 18, 21,
22, 23, 25, 28 and 29 “consent” means
voluntary or uncoerced agreement.
(3) Circumstances in subsection (2) in
respect of which a person (“B”) (the complainant) does not voluntarily or
without coercion agree to an act of sexual penetration, as contemplated in sections
3, 4, 16 and 23, or an act of sexual violation as contemplated in sections 5(1), 6, 7, 11, 16 and 23, or any other act as contemplated in
sections 8, 9, 10, 18, 21, 22, 25, 28 and 29
include, but are not limited to, the following:
(a) Where B (the complainant) submits or is
subjected to such a sexual act as a result of—
(i) the use of force or intimidation by A
(the accused person) against B, C (a third person) or D (another
person) or against the property of B, C or D; or
(ii) a threat of harm by A against B, C or D or against the property of B, C or D;
(b) where there is an abuse of power or
authority by A to the extent that B is inhibited from indicating his or her
unwillingness or resistance to the sexual act, or
unwillingness to participate in such a sexual
act;
(c) where the sexual act is committed under false pretences or by fraudulent
means, including where B is led to believe by A that—
(i) B
is committing such a sexual act with a
particular person who is in fact a different person; or
(ii) such
a
sexual act is something other than that act; or
(d) where B is incapable in law of
appreciating the nature of the sexual act,
including where B is, at the
time of the commission of such sexual act—
(i) asleep;
(ii) unconscious;
(iii) in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other
substance, to the extent that B’s
consciousness or judgement is adversely affected;
(iv) a
mentally disabled person; or
(v) a child below the age of 12 years.
Objects
2. The
objects of this Act are to afford complainants of sexual
offences the maximum and least traumatising protection that the law can
provide, to introduce measures which seek to enable the relevant organs of
state to give full effect to the provisions of this Act and to commit the State
to combating and, ultimately, eradicating the relatively high incidence of
sexual offences committed in the Republic or elsewhere by its citizens, by:
(a) criminalising all forms of sexual abuse or
exploitation;
(b) repealing certain common law sexual
offences and replacing them with new and, in
some instances, expanded or extended statutory sexual offences, irrespective of gender;
(c) protecting complainants of sexual
offences and their families from secondary victimisation and traumatisation by
establishing a co-operative response between all government departments
involved in implementing an effective, responsive and sensitive criminal
justice system in respect of matters related to sexual offences;
(d) promoting
the spirit of batho pele in respect of service delivery in the criminal
justice system dealing with sexual offences by¾
(i) ensuring
more effective and efficient investigation and prosecution
of perpetrators of sexual offences by clearly defining existing offences, and
creating new offences;
(ii) giving
proper recognition to the needs of victims of sexual offences through timeous,
effective and non-discriminatory investigation and prosecution;
(iii) facilitating a uniform and co-ordinated
approach by relevant Government departments
in dealing with sexual offences;
(iv) entrenching accountability of government
officials; and
(v) minimising disparities in the
provision of services to victims of sexual offences; and
(e) establishing a National Register for Sex
Offenders in order to establish a record of persons who are convicted of sexual
offences against children so as to prohibit such persons from being employed in
a manner that places them in a position to work with or have access to or of
authority or supervision over or care of a child or children.
CHAPTER 2
SEXUAL
OFFENCES
Part 1: Rape and compelled rape
Rape
3. Any person (“A”) who unlawfully and intentionally commits an
act of sexual penetration with a complainant (“B”), without the consent of B,
is guilty of the offence of rape.
Compelled
rape
4. Any person
(“A”) who unlawfully and intentionally compels a third person (“C”), with or
without the consent of C, to commit an act of sexual penetration with a
complainant (“B”), without the consent of B, is guilty of the offence of
compelled rape.
Part
2: Sexual assault,
compelled sexual assault and compelled self-sexual assault
Sexual
assault
5. (1) A person
(“A”) who unlawfully and intentionally sexually violates a complainant (“B”),
without the consent of B, is guilty of the offence of sexual assault.
(2) A person (“A”) who unlawfully and
intentionally inspires the belief in a complainant (“B”) that B will be
sexually violated, is guilty of the offence of sexual assault.
Compelled sexual assault
6. A person (“A”) who unlawfully
and intentionally compels a third person (“C”), with or without the consent of
C, to engage in an act of sexual violation with a complainant (“B”),
without the consent of B, is guilty of the offence of compelled sexual assault.
Compelled self-sexual assault
7. A person (“A”) who unlawfully and
intentionally compels a complainant (“B”), without the
consent of B, to—
(a) engage in sexual conduct as referred to
in paragraphs (a), (c) or (e) of the
definition of sexual conduct in section 1, with B himself or herself, including
engaging in any act which has or may have the
effect of sexually arousing or sexually
degrading B; or
(b) cause B to penetrate his or her genital
organs or anus himself or herself in any manner, other than an act of sexual
penetration,
is guilty of the offence of compelled self-sexual assault.
Part 3: Exposure or display of or causing
exposure or display of sexual acts or genital organs, anus or
female breasts (“flashing”) or pornography to person
18 years or older
Exposure or display of or causing exposure or display of sexual act to person 18 years or older
8. A person (“A”) who unlawfully and intentionally, whether for
the sexual gratification of A or of a third person (“C”) or not, exposes or
displays or causes the exposure or display of, a sexual act to a complainant 18
years or older (“B”), without the consent of B, by causing or compelling B to
watch A or another person (“D”) engaging in a sexual act, is guilty of the
offence of exposing or displaying or causing the exposure or display of a
sexual act to a person 18 years or older
Exposure
or display of or causing exposure or display of genital organs,
anus or female breasts to person 18
years or older (“flashing”)
9. A person (“A”) who unlawfully and intentionally, whether
for the sexual gratification of A or of a third person ("C") or not, exposes or displays or causes the exposure or display of
the genital organs, anus or female breasts of
A or C to a complainant 18 years or older (“B”), without the consent of B, is
guilty of the offence of exposing or displaying or causing the exposure or
display of genital organs, anus or female
breasts to a person 18 years or older.
Exposure or display of or
causing exposure or display of pornography to person 18 years or older
10. A person (“A”)
who unlawfully and intentionally, whether for the sexual gratification
of A or of a third person ("C") or not,
exposes or displays or causes the exposure or display of any pornography to a
complainant 18 years or older (“B”), without the consent of B, is guilty of the
offence of exposing or displaying or causing the exposure or display of
pornography to a person 18 years or older.
Part 4: Incest, bestiality and sexual acts
with corpse
Incest
11. (1) A person
("A") who unlawfully and intentionally commits a sexual act with a complainant
("B"), whom A may not marry on account of consanguinity (blood
relationship), affinity (relationship by marriage) or an adoptive relationship,
is, despite the consent of B, guilty of the offence of incest.
(2) For the purposes of subsection (1)—
(a) the
prohibited degrees of consanguinity are the following:
(i) ascendants
and descendents in the direct line; or
(ii) collaterals, if either of them is related to their common
ancestor in the first degree of descent;
(b) the prohibited degrees of affinity are
relations by marriage in the ascending and descending line; and
(c) the
prohibited degree of adoptive relationship is the relationship as provided for
in section 20(4) of the Child Care Act, 1983 (Act No. 74 of 1983).
Bestiality
12. A
person (“A”) who unlawfully and intentionally commits an act –
(a) which
causes penetration to any extent whatsoever by the genital organs of—
(i) A
into or beyond the mouth, genital organs or anus of an animal; or
(ii) an
animal into or beyond the mouth, genital organs or anus of A; or
(b) of
masturbation with an animal,
is guilty of the offence of
bestiality.
Sexual act with corpse
13. A person who unlawfully and intentionally commits a sexual act
with a human corpse, is guilty of the offence of committing a sexual act with a
corpse.
CHAPTER 3
SEXUAL OFFENCES
AGAINST CHILDREN
Part 1: Consensual sexual acts with certain
children
Acts of consensual sexual
penetration with certain children (consensual rape)
14. (1) A person (“A”) who commits an act of sexual penetration
with a child (“B”) is, despite the consent of B to the commission of such an
act, guilty of the offence of having committed an act of consensual sexual
penetration with a child (consensual rape).
(2) (a) The institution of a prosecution for an
offence referred to in subsection (1) must be authorised in writing by the
National Director of Public Prosecutions if both A and B were children at the
time of the alleged commission of the offence:
Provided that, in the event that the National Director of Public
Prosecutions authorises the institution of a prosecution, both A and B must be
charged with contravening subsection (1).
(b) The National
Director of Public Prosecutions may not delegate his or her power to decide
whether a prosecution in terms of this section should be instituted or not.
Acts of consensual sexual
violation with certain children (consensual sexual assault)
15. (1) A person (“A”) who commits an act of
sexual violation with a child (“B”) is, despite the consent of B to the
commission of such an act, guilty of the offence of having committed an act of
consensual sexual violation with a child (consensual sexual assault).
(2) (a) The institution of a prosecution for an offence referred to
in subsection (1) must be authorised in writing by the relevant Director of
Public Prosecutions if both A and B were children at the time of the alleged
commission of the offence: Provided
that, in the event that the Director of Public Prosecutions concerned
authorises the institution of a prosecution, both A and B must be charged with
contravening subsection (1).
(b) The Director of Public Prosecutions concerned may not
delegate his or her power to decide whether a prosecution in terms of this
section should be instituted or not.
Part 2: Sexual exploitation and sexual grooming of children, engaging in
sexual acts in presence of children and exposure or display of or causing
exposure or display of genital organs, anus or
female breasts (“flashing”) or pornography or sexual acts to children
Sexual exploitation of child
16. (1) A
person (“A”) who unlawfully and intentionally engages the services of a child
complainant (“B”), or offers the services of B to a third person (”C”), with or
without the consent of B, in order to perform a sexual act with B, for
financial or other reward, favour or compensation to B, A (when offering the
services of B) or to another person (“D”), among others, by—
(a) committing
a sexual act with B;
(b) inviting,
persuading or inducing B to allow C to commit a sexual act with B;
(c) participating
in, being involved in, promoting, encouraging or facilitating the commission of
a sexual act with B by C;
(d) making
available, offering or engaging C for purposes of the commission of a sexual
act with B by D; or
(e) detaining B,
whether under threat, force, coercion, deception, abuse of power or authority,
for purposes of the commission of a sexual act with B by C or D,
is guilty of an offence of being involved in the
sexual exploitation of a child.
(2) A person ("A") who
intentionally—
(a) allows
or knowingly permits the commission of a sexual act by a third person (“C”)
with a child complainant (“B”) while being a primary care-giver defined in
section 1 of the Social Assistance Act, 1992 (Act No. 59 of 1992), parent or
guardian of B; or
(b) owns,
leases, rents, manages, occupies or has control of any movable or immovable
property used for purposes of the commission of a sexual act with B by C,
is guilty of the offence of furthering the sexual
exploitation of a child.
(3) (a) A person who has knowledge of the sexual exploitation of a
child by any person as contemplated in subsection (1) or (2) must report such
knowledge within a reasonable time of gaining information of such occurrence at
a police station.
(b) A person who fails to report knowledge
of the sexual exploitation of a child as contemplated in paragraph (a),
is guilty of an offence.
(4) A person ("A") who
intentionally receives financial or other reward, favour or compensation from
the commission of a sexual act with a child complainant (“B”) by a third person
(“C”), is guilty of an offence of benefiting from the sexual exploitation of a
child.
(5) A person ("A") who
intentionally lives wholly or in part on rewards, favours or compensation for
the commission of a sexual act with a child complainant (“B”) by a third person
(“C”), is guilty of an offence of living from the earnings of the sexual exploitation
of a child.
(6) A person ("A"), including a
juristic person, who¾
(a) makes or organises any travel
arrangements for or on behalf of a third person (“C”), whether that other
person is resident within or outside the borders of the Republic, with the
intention of facilitating the commission of any sexual act with a child
complainant (“B”), irrespective of whether that act is committed or not; or
(b) prints or publishes, in any manner, any
information that is intended to promote or facilitate conduct that would
constitute a sexual act with B,
is
guilty of an offence of promoting child sex tours.
Sexual grooming of child
17. A person (“A”) who, for purposes of the
sexual grooming of a child complainant (“B”)—
(a) manufactures, distributes or facilitates
the manufacture or distribution of an article that promotes or is
intended to be used in the commission of a sexual act with or by B;
(b) supplies or displays to B an article
which is intended to be used in the performance of a sexual act with the
intention to encourage or enable B to perform such sexual act;
(c) having met or communicated with B by any
means from, to or in any part of the world, on at least two earlier occasions,
intentionally travels to meet or meets B with the intention of committing a
sexual act, during or after the meeting; or
(d) arranges or facilitates the meeting or
communication with B by any means from, to or in any part of the world, with
the intention that A or a third person (“C”) will commit a sexual act with B,
during or after such meeting;
is guilty of the offence of sexual grooming of a child.
Exposure or display of or causing exposure or display of
sexual act to child
18. A person (“A”)
who unlawfully and intentionally, whether for the sexual gratification of A or
of a third person (“C”) or not, exposes or displays or causes the exposure or
display of a sexual act to a child complainant (“B”), with or without the
consent of B, by causing or compelling B to watch A or another person (“D”)
engaging in a sexual act, is guilty of the offence of exposing or displaying or
causing the exposure or display of, a sexual act to a child.
Engaging in act of sexual penetration in presence of child
19. A person (“A”) who unlawfully and
intentionally, whether for the sexual gratification of A or of a third person
("C") or not, engages in an act of sexual penetration in the presence
of a child complainant (“B”) and intends that B should be aware that A is engaging in such an
act, is guilty of the offence of having engaged in an act of sexual
penetration in the presence of a child.
Engaging in act of sexual violation in presence of child
20. A
person (“A”) who unlawfully and intentionally, whether for the sexual
gratification of A or of a third person (“C”) or not, engages in an act of
sexual violation in the presence of a child complainant (“B”) and intends that B should be
aware that A is engaging in such an act, is guilty of the offence of having
engaged in an act of sexual violation in the presence of a child.
Exposure
or display of or causing exposure or display of genital organs,
anus or female breasts to child
(“flashing”)
21. A person (“A”) who unlawfully and intentionally, whether
for the sexual gratification of A or of a third person ("C") or not, exposes or displays or causes the exposure or display of
the genital organs, anus or female breasts of
A or C to a child complainant (“B”), with or without the consent of B, is
guilty of the offence of exposing or displaying or causing the exposure or
display of genital organs, anus or female
breasts to a child.
Exposure or display of or causing exposure or
display of pornography to child
22. A person (“A”)
who unlawfully and intentionally, whether for the sexual gratification
of A or of a third person ("C") or not,
exposes or displays or causes the exposure or display of any pornography to a
child complainant (“B”), with or without the consent of B, is guilty of the
offence of exposing or displaying or causing the exposure or display of
pornography to a child.
CHAPTER 4
SEXUAL OFFENCES AGAINST MENTALLY DISABLED PERSONS
Part 1: Sexual exploitation and sexual grooming of
mentally disabled persons
Sexual exploitation of mentally disabled person
23. (1) A
person (“A”) who unlawfully and intentionally engages the services of a
mentally disabled person (“B”), or offers the services of B to a third person
(”C”), with or without the consent of B, in order to perform a sexual act with
B, for financial or other reward, favour or compensation to B, A (when offering
the services of B) or to another person (“D”), among others, by—
(a) committing
a sexual act with B;
(b) inviting,
persuading or inducing B to allow C to commit a sexual act with B;
(c) participating
in, being involved in, promoting, encouraging or facilitating the commission of
a sexual act with B by C;
(d) making
available, offering or engaging C for purposes of the commission of a sexual
act with B by D; or
(e) detaining B,
whether under threat, force, coercion, deception, abuse of power or authority,
for purposes of the commission of a sexual act with B by C or D,
is guilty of an offence of being involved in the
sexual exploitation of a mentally disabled person.
(2) A person ("A") who
intentionally—
(a) allows
or knowingly permits the commission of a sexual act by a third person (“C”)
with a mentally disabled person (“B”) while being a primary care-giver defined
in section 1 of the Social Assistance Act, 1992 (Act No. 59 of 1992), parent or
guardian of B; or
(b) owns,
leases, rents, manages, occupies or has control of any movable or immovable
property used for purposes of the commission of a sexual act with B by C,
is guilty of the offence of furthering the sexual
exploitation of a mentally disabled person.
(3) (a) A person who has knowledge of the sexual exploitation of a
mentally disabled person by any person as contemplated in subsection (1) or (2)
must report such knowledge within a reasonable time of gaining information of
such occurrence at a police station.
(b) A person who fails to report knowledge
of the sexual exploitation of a mentally disabled person as contemplated in
paragraph (a), is guilty of an offence.
(4) A person ("A") who
intentionally receives financial or other reward, favour or compensation from
the commission of a sexual act with a mentally disabled person (“B”) by a third
person (“C”), is guilty of an offence of benefiting from the sexual
exploitation of a mentally disabled person.
(5) A person ("A") who
intentionally lives wholly or in part on rewards, favours or compensation for
the commission of a sexual act with a mentally disabled person (“B”) by a third
person (“C”), is guilty of an offence of living from the earnings of the sexual
exploitation of a mentally disabled person.
(6) A person ("A"), including a
juristic person, who¾
(a) makes or organises any travel
arrangements for or on behalf of a third person (“C”), whether that other
person is resident within or outside the borders of the Republic, with the
intention of facilitating the commission of any sexual act with a mentally disabled
person (“B”), irrespective of whether that act is committed or not; or
(b) prints or publishes, in any manner, any
information that is intended to promote or facilitate conduct that would
constitute a sexual act with B,
is
guilty of an offence of promoting sex tours with mentally disabled persons.
Sexual grooming of mentally disabled person
24. A person (“A”) who, for purposes of
the sexual grooming of a mentally disabled person (“B”)—
(a) manufactures, distributes or
facilitates the manufacture or distribution of an article that promotes or is
intended to be used in the commission of a sexual act with or by B;
(b) supplies or displays to B an article
which is intended to be used in the performance of a sexual act with the
intention to encourage or enable B to perform such sexual act,
(c) having met or communicated with B by
any means from, to or in any part of the world, on at least two earlier
occasions, intentionally travels to meet or meets B with the intention of
committing a sexual act, during or after the meeting; or
(d) arranges or facilitates the meeting
or communication with B by any means from, to or in any part of the world with
the intention that A or a third person (“C”) will commit a sexual act with B,
during or after such meeting,
is
guilty of the offence of the sexual grooming of a mentally disabled person.
Part 2: Engaging in sexual acts in presence of
mentally disabled persons and exposure or display of or causing exposure or
display of genital organs, anus or female
breasts (“flashing”) or pornography or sexual acts to mentally disabled persons
Exposure or
display of or causing exposure or display of sexual act to mentally disabled
person
25. A person (“A”) who unlawfully and intentionally, whether for
the sexual gratification of A or of a third person (“C”) or not, exposes or
displays or causes the exposure or display of a sexual act to a mentally
disabled complainant ("B”), with or without the consent of B, by causing
or compelling B to watch A or another person (“D”) engaging in a sexual act, is
guilty of the offence of exposing or displaying or causing the exposure or
display of a sexual act to a mentally disabled person.
Engaging in act of sexual
penetration in presence of mentally disabled person
26. A
person (“A”) who unlawfully and intentionally, whether for the sexual
gratification of A or of a third person ("C") or not, engages in an
act of sexual penetration in the presence of a complainant who is mentally
disabled (“B”) and intends that B should be aware that A is engaging in such an act, is guilty
of the offence of having engaged in an act of sexual penetration in the
presence of a mentally disabled person.
Engaging in act of sexual
violation in presence of mentally disabled person
27. A
person (“A”) who unlawfully and intentionally, whether for the sexual
gratification of A or of a third person (“C”) or not, engages in an act of
sexual violation in the presence of a complainant who is mentally disabled
(“B”) and intends
that B should be aware that A is engaging in such an act, is guilty
of the offence of having engaged in an act of sexual violation in the presence
of a mentally disabled person.
Exposure
or display of or causing exposure or display of genital organs,
anus or female breasts to mentally
disabled person (“flashing”)
28. A person (“A”) who unlawfully and intentionally, whether
for the sexual gratification of A or of a third person ("C") or not, exposes or displays or causes the exposure or display of
the genital organs, anus or female breasts of
A or C to a mentally disabled complainant (“B”), with or without the consent of
B, is guilty of the offence of exposing or displaying or causing the exposure
or display of genital organs, anus or female
breasts to a mentally disabled person.
Exposure or display of or causing exposure or
display of pornography to mentally disabled person
29. A person (“A”)
who unlawfully and intentionally, whether for the sexual gratification
of A or of a third person ("C") or not,
exposes or displays or causes the exposure or display of any pornography to a
mentally disabled complainant (“B”), with or without the consent of B, is
guilty of the offence of exposing or displaying or causing the exposure or
display of pornography to a mentally disabled person.
CHAPTER 5
SERVICES
FOR VICTIMS OF SEXUAL OFFENCES AND COMPULSORY HIV TESTING OF SEXUAL OFFENDERS
Part 1: Definitions
and services for victims of sexual offences
Definitions
30. For
the purposes of this Chapter, and unless the context indicates otherwise–
"application" means an application in
terms of section 33 or 35;
"body specimen" means any body sample
which can be tested to determine the presence or absence of HIV infection;
"HIV test" means any validated and
medically recognised test for determining the presence or absence of HIV
infection in a person;
"interested
person" means any person who has a material interest in the well-being of a
victim, including a spouse, same sex or hetero-sexual permanent life partner,
family member, care giver, counsellor, medical practitioner, health service
provider, social worker or teacher of such victim;
"investigating
officer" means a member of the South African Police Service responsible for the
investigation of an alleged sexual offence or any other offence or any member
acting under his or her command;
"medical
practitioner" means a person registered as a medical practitioner in
terms of the Health Professions Act, 1974 (Act No. 56 of 1974);
"nurse' means a person
registered as a nurse in terms of the Nursing Act, 1978 (Act No. 50 of 1978);
“offence” means any offence, other
than a sexual offence, in which the HIV status of the alleged offender may be
relevant for purposes of investigation or prosecution;
"PEP" means Post Exposure
Prophylaxis;
"sexual
offence" means a sexual offence in terms of this Act in which the victim may
have been exposed to body fluids of the alleged offender; and
"victim" means any person
alleging that a sexual offence has been committed against him or her.
Services for victims
relating to Post Exposure Prophylaxis and compulsory
HIV testing of sexual offenders
31. (1) If a victim
has been exposed to the risk of being infected by HIV as the result of a sexual
offence having been committed against him or her, he or she may–
(a) subject
to subsection (2)—
(i) receive PEP
for HIV infection, at a public health establishment designated from time to
time by the cabinet member responsible for health by notice in the Gazette
for that purpose under section 32, at State expense and in accordance with the
State's prevailing treatment norms and protocols;
(ii) be given
free medical advice surrounding the administering of PEP prior to the
administering thereof; and
(iii) be supplied
with a prescribed list, containing the names, addresses and contact particulars
of accessible public health establishments contemplated in section 32(1)(a); and
(b) subject to section 33,
apply to a magistrate for an order that the alleged offender be tested for HIV,
at State expense.
(2) Only
a victim who–
(a) lays a charge
with the South African Police Service in respect of an alleged sexual offence;
or
(b) reports an
incident in respect of an alleged sexual offence in the prescribed manner at a
designated health establishment contemplated in subsection (1)(a)(i),
within 72 hours after the
alleged sexual offence took place, may receive the services contemplated in
subsection (1)(a).
(3) A victim
contemplated in subsection (1) or an interested person must—
(a) when or immediately after
laying a charge with the South African Police Service or making a report in
respect of the alleged sexual offence, in the prescribed manner, be informed by
the police official to whom the charge is made or by a medical practitioner or
a qualified health care professional to whom the incident is reported, as the
case may be, of the—
(i) importance
of obtaining PEP for HIV infection within 72 hours after the alleged sexual
offence took place;
(ii) need to
obtain medical advice and assistance regarding the possibility of other sexually
transmitted infections; and
(iii) services
referred to in subsection (1); and
(b) in the case of
an application contemplated in section 33, be handed a notice containing the
prescribed information regarding the compulsory HIV testing of the alleged offender
and have the contents thereof explained to him or her.
Designation of public
health establishments for purposes of providing Post Exposure Prophylaxis and
carrying out compulsory HIV testing
32. (1) The cabinet member responsible for
health must, by notice in the Gazette, designate any public health
establishment for the purposes of—
(a) providing PEP to victims; and
(b) carrying out
compulsory HIV testing,
and may, by notice in the
Gazette, withdraw any designation under this section, after
giving 14 days' prior notice of such withdrawal in the Gazette.
(2) The first notice in terms of subsection
(1) must be published within 2 months of the implementation of this
section, and at least at intervals of 6 months thereafter.
(3) The Director-General: Justice and Constitutional Development must,
within 14 days of publication of each designation or withdrawal thereof
contemplated in subsection (1), provide a copy of the notice to—
(a) the relevant
role-players falling under his or her jurisdiction; and
(b) the National
Commissioner of the South African Police Service and the Commissioner of
Correctional Services, and the National Commissioner of the South African
Police Service and Commissioner of Correctional Services must distribute the said
notice to all relevant role-players falling under his or her jurisdiction.
Part
2: Application for compulsory HIV
testing of alleged sexual offender by victim
Application by victim or
interested person for HIV testing of alleged sexual offender
33. (1) (a) Within 60 days after the alleged
commission of a sexual offence any victim or any interested person on behalf of
a victim, may apply to a magistrate, in the prescribed form, for an order that—
(i) the alleged
offender be tested for HIV and that the results thereof be disclosed to the
victim or interested person, as the case may be, and to the alleged offender;
or
(ii) the HIV
test results in respect of the alleged offender, obtained on application by a
police official as contemplated in section 37, be disclosed to the victim or
interested person, as the case may be.
(b) If the application is brought by an interested person, such
application must be brought with the written consent of the victim, unless the
victim is—
(i) under the age of 14 years;
(ii) a mentally disabled person;
(iii) unconscious;
(iv) a person in
respect of whom a curator has been appointed in terms of an order of court; or
(v) a person whom
the magistrate is satisfied is unable to provide the required consent.
(2) (a) Every application must—
(i) set out the
grounds on which it is alleged that a sexual offence was committed against the
victim;
(ii) if it is
brought by an interested person, state the nature of the relationship between
the interested person and the victim, and if the interested person is not the
spouse, same sex or hetero-sexual permanent life partner, or a family member of
the victim, the reason why the application is being made by such interested
person; and
(iii) state that
less than 60 days have elapsed from the date on which it is alleged that the
offence in question took place.
(b) The matters referred to in paragraph (a) must be
verified by the victim or the interested person, as the case may be, by
affidavit or solemn declaration.
(3) The
application must be made as soon as possible after a charge has been laid, and
may be made before or after an arrest has been effected.
(4) The
application must be handed to the investigating officer, who must, as soon as
is reasonably practicable, submit the application to a magistrate of the
magisterial district in which the sexual offence is alleged to have occurred.
Consideration of
application by magistrate and issuing of order
34. (1) The magistrate must, as soon as is
reasonably practicable, consider the application contemplated in section 33, in
chambers and may call for such additional evidence as he or she deems fit,
including oral evidence or evidence by affidavit, which must form part of the
record of the proceedings.
(2) (a) For the purpose of the proceedings
contemplated in subsection (1), the magistrate may consider evidence by or on
behalf of the alleged offender if, to do so, will not give rise to any substantial
delay.
(b) Evidence contemplated in paragraph (a) may be adduced
in the absence of the victim, if the magistrate is of the opinion that it is in
the best interests of the victim to do so.
(3) If
the magistrate is satisfied that there is prima facie evidence that—
(a) a sexual
offence has been committed against the victim by the alleged offender;
(b) the victim may have been
exposed to the body fluids of the alleged offender; and
(c) no more than 60 calendar
days have lapsed from the date on which it is alleged that the offence in
question took place,
the magistrate must—
(i) in the case
where the alleged offender has not been tested for HIV on application by a
police official as contemplated in section 35, order that the alleged offender
be tested for HIV in accordance with the State's prevailing norms and
protocols, including where necessary—
(aa) the collection
from the alleged offender of two body specimens; and
(bb) the performance
on the body specimens of one or more HIV tests as are reasonably necessary to
determine the presence or absence of HIV infection in the alleged offender,
and that the
HIV test results be disclosed in the prescribed manner to the victim or
interested person, as the case may be, and to the alleged offender; or
(ii) in the case
where the alleged offender has already been tested for HIV on application by a
police official as contemplated in section 35, order that the HIV test results
be disclosed in the prescribed manner to the victim or interested person, as
the case may be.
(4) An order referred to in subsection (3)
must be made in the prescribed manner and handed to the investigating officer.
(5) The investigating officer must, as soon
as is reasonably practicable, after an application has been considered—
(a) inform the
victim or interested person, as the case may be, of the outcome of the application; and
(b) if an order has
been granted in terms of subsection (3), inform the alleged offender thereof by
handing to him or her a notice containing the information as prescribed and, if
necessary, by explaining the contents of the notice.
Part
3: Application for compulsory HIV
testing of alleged offender by police official
Application by police
official for HIV testing of alleged offender
35. (1) An
investigating officer may, subject to subsection (2), for purposes of
investigating a sexual offence or offence apply in the prescribed form to a
magistrate of the magisterial district in which the sexual offence or offence
is alleged to have occurred, in chambers, for an order that the alleged
offender be tested for HIV.
(2) An
application contemplated in subsection (1) must–
(a) set out the
grounds, on the strength of information taken on oath or by way of solemn
declaration, in which it is alleged that a sexual offence or offence was
committed by the alleged offender;
(b) be made as soon
as possible after a charge has been laid, and may be made before or after an
arrest has been effected, or after conviction.
(3) If the magistrate is satisfied that
there is prima facie evidence that —
(a) a sexual
offence or offence has been committed by the offender; and
(b) HIV testing would appear
to be necessary for purposes of investigating or prosecuting the offence,
the magistrate must order
that the alleged offender be tested for HIV in accordance with the State's
prevailing norms and protocols, including, where necessary—
(i) the collection from the alleged
offender of two body specimens; and
(ii) the
performance on the body specimens of one or more HIV tests as are reasonably
necessary to determine the presence or absence of HIV infection in the alleged
offender,
and that the HIV test
results be disclosed in the prescribed manner to the investigating officer and
to the alleged offender.
(4) An order contemplated in subsection (3)
must be made in the prescribed manner and handed to the investigating officer.
(5) The investigating officer must, as soon
as is reasonably practicable, after an application has been granted in terms of
subsection (3), inform the alleged offender by handing to him or her a notice
containing the information as prescribed and, if necessary, by explaining the
contents of the notice.
Part
4: Execution of orders for compulsory
HIV testing and results of HIV tests
Execution of order and
issuing of warrant of arrest
36. (1) As soon as an order referred to in section
34(3) or section 35(3) has been handed to an investigating officer—
(a) the investigating officer must request a
medical practitioner or nurse to take two body specimens from the alleged
offender, and the investigating officer must make the alleged offender
available or cause such person to be made available for that purpose;
(b) the medical practitioner or nurse
concerned must take two body specimens from the alleged offender;
(c) the investigating officer must deliver
the body specimens to the head of a public health establishment designated in
terms of section 32 or to a person designated in writing by the head of such
establishment;
(d) the head of the establishment or the
person referred to in paragraph (c) must—
(i) perform one or more HIV tests on the body specimens of the
alleged offender as are reasonably necessary to determine the presence or
absence of HIV infection in the alleged offender;
(ii) record the result of the HIV test in duplicate in the
prescribed manner; and
(iii) provide the investigating officer with duplicate sealed
records of the test results; and
(e) the investigating officer must hand over
to the victim or to the interested person, as the case may be, and to the
alleged offender—
(i) the sealed record of the test results; and
(ii) a notice containing prescribed information on how to deal
with the HIV test result, and if necessary explain the contents of the notice.
(2) Any order made in terms of section 34(3)
must be executed within 60 calendar days from the date on which it is alleged
that the sexual offence in question took place, failing which the order lapses.
(3) Notwithstanding the provisions of
section 43 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), the
magistrate may, when or after issuing an order contemplated in section 34(3) or
35(3), issue a warrant for the arrest of the alleged offender if there is
reason to believe that such offender may avoid compliance with such order or
such offender has avoided compliance with such order.
Use of results of HIV
tests
37. The
results of an HIV test may only be used in the following circumstances:
(a) To inform a
victim or an interested person whether the alleged offender in the case in
question is infected with HIV with the view to—
(i) making informed personal decisions;
or
(ii) using them
as evidence in any ensuing civil proceedings as a result of the sexual offence
in question; or
(b) to enable an
investigating officer to gather information with the view to using them
as evidence in criminal proceedings.
Part
5: Miscellaneous
Register of
applications and orders
38. (1) The National Commissioner of the South
African Police Service must cause all applications made, and all orders
granted, in terms of this Chapter, to be recorded in a register and kept in the
manner determined by the National Commissioner as prescribed.
(2) Access to the register must be limited
as prescribed.
Confidentiality
of outcome of application
39. The fact
that an order for HIV testing of an alleged offender has been granted as
contemplated in section 34 or section 35 may not be communicated to any person
other than—
(a) the victim or an interested person
referred to in section 33;
(b) the alleged offender;
(c) the investigating officer; and
(d) the persons who are required to execute
the order as contemplated in section 36.
Confidentiality
of HIV test results obtained
40. (1) The results of the HIV tests performed
on an alleged offender in terms of this Chapter may, subject to subsection (2),
be communicated only to—
(a) the victim or the interested person referred
to in section 33;
(b) the alleged offender; and
(c) the investigating officer, if the
alleged offender is tested as contemplated in section 35.
(2) A presiding officer, in any proceedings
contemplated in this Chapter or in any ensuing criminal or civil proceedings,
may make any order he or she deems appropriate in order to give effect to this
section, including the manner in which such results are to be kept confidential
and the manner in which the court record in question is to be dealt with.
Offences and
penalties
41. (1) (a) Any
person who, with malicious intent—
(i) lays
a charge with the South African Police Service in respect of an alleged sexual
offence; or
(ii) makes
an application in terms of section 33(1),
with the
intention of ascertaining the HIV status of the alleged offender, is guilty of
an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three
years.
(b) Any person who
intentionally discloses the results of any HIV tests in contravention of
section 40, is guilty of an offence and is liable to a fine or to imprisonment
for a period not exceeding three years.
(2) An alleged offender who, in any
manner whatsoever, fails, refuses or avoids to comply with, or deliberately
frustrates any attempt to serve on himself or herself, an order of court that
he or she be tested for HIV, is guilty of an offence and is liable on
conviction to a fine or to imprisonment for a period not exceeding three years.
Regulations
42. (1) The Minister, after consultation with
the cabinet members responsible for safety and security and health, may make
regulations regarding—
(a) any form required to be prescribed in
terms of this Chapter;
(b) any matter necessary or required to be
prescribed in terms of this Chapter; and
(c) any other matter the Minister deems to
be necessary or expedient to achieve the objects of this Chapter.
(2) Any regulation made in terms of
subsection (1) must be—
(a) submitted to Parliament at least 30 days
before publication in the Gazette; and
(b) made after consultation with the cabinet
members responsible for safety and security and health, except for the matter
prescribed in section 38, which must be made in consultation with the cabinet
member responsible for safety and security.
CHAPTER 6
NATIONAL REGISTER FOR SEX OFFENDERS
Prohibition
on certain types of employment relating to a child or children, or access to a
child or children, of or by certain persons who have been convicted of a sexual
offence against a child
43. (1) A person who has been convicted of the
commission of a sexual offence against a child, whether committed before
or after the commencement of this Chapter and whether committed in or outside
the Republic, and whose particulars have been included in the Register, may not
work with a child or children in any circumstances or position contemplated in
section 49, or which, in any other manner, places him or her in a
position of authority, supervision or care of a child or children or of gaining
access to a child or children or places where children are present or
congregate.
(2) Any
person contemplated in section 49(a), (b), (c) or (e) may not
employ, or any person may not, in any manner whatsoever, make use of the
services of or provide access to a child or children to, a person contemplated
in subsection (1).
(3) A
person who has been convicted of the commission of a sexual offence against a
child, whether committed before or after the commencement of this
Chapter and whether committed in or outside the Republic, must, when applying
for any type of employment contemplated in section 49, or in circumstances
which, in any other manner, places him or her in a position of authority or
supervision over or care of or gaining access to a child or children, disclose
such conviction at the time of applying or being placed in such position or
taking on any such responsibility, irrespective of whether his or her
particulars have been included in the Register or not.
(4) Any
person who contravenes a provision of this section is guilty of an offence and
liable on conviction to a fine or to imprisonment for a period not exceeding
seven years or to both a fine and such imprisonment.
(5) Any contract of employment of a person
referred to in subsection (1) in respect of which such offence did not or was
not brought to the attention of the employer, including a person referred to in
subsection (3) who fails to disclose a conviction as contemplated in that
subsection, must immediately be terminated when such person’s employer becomes
aware of such conviction, irrespective of whether such person has committed any
sexual offence during his or her period of employment or not.
Establishment
of National Register for Sex Offenders and designation of Registrar of Register
44. (1) A National Register for Sex Offenders,
containing particulars of persons who are convicted of the commission of sexual
offences against a child, whether committed before or after the commencement of
this Chapter and whether committed in or outside the Republic, must, within six months after the commencement of
this Chapter, and, in accordance with the provisions and the regulations made
under this Chapter, be established and maintained by the Minister.
(2) The Minister must designate a fit and
proper person, with due regard to his or her experience, conscientiousness and
integrity, as the Registrar of the National Register for Sex Offenders.
(3) The Registrar must exercise and perform
his or her powers, duties and functions subject to the provisions of this
Chapter and the regulations made under this Chapter.
Objects of
Register
45. The objects of the Register are to—
(a) have
a record of persons who are convicted of the commission of a sexual offence
against a child, whether committed before or after the commencement of this
Chapter and whether committed in or outside the Republic; and
(b) use
the information contained in the Register solely for purposes of providing, on
application, the persons referred to in section 49 with a certificate, on whether
any particular person mentioned in the application who intends working with a
child or children or who is put in a position of authority or supervision over
or care of or access to a child or children, has a conviction for a sexual
offence against a child.
Contents
of Register
46. The Register
must –
(a) be established and maintained in the prescribed manner and
format;
(b) contain
the following particulars of persons whose names are to be included in the
Register as contemplated in section 47:
(i) the
full names and surname of the person, including any known alias or nickname;
(ii) the
last known physical and postal address of the person, and any other contact
details;
(iii) the
identification, passport and drivers license number of the person;
(iv) the
sexual offence against a child in respect of which the person has been
convicted, the sentence imposed, as well as the date and place of conviction
and sentence, and
(v) the
court in which the trial took place and the case
number; and
(vi) any
other particulars as may be prescribed by regulation: and
(c) if
the conviction and sentence took place in a foreign jurisdiction, contain the
equivalent information as is contemplated in subsection (b), as obtained from
the relevant country or any other legal source.
Persons
whose names must be included in Register and related matters
47. (1) The
particulars of the following persons must be included in the Register:
(a) A person who, after the commencement of this Chapter, has
been convicted of a sexual offence against a child;
(b) a person who is alleged
to have committed a sexual offence against a child in respect of whom a court,
whether before or after the commencement of this Chapter, has made a finding and given a direction in
terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977 (Act No. 51
of 1977);
(c) a person who, at the
commencement of this Chapter, is serving a sentence of imprisonment as the
result of a conviction for a sexual offence against a child or a person whose particulars are forwarded to the Registrar in terms of
subsection (4);
(d) a person who, at the
commencement of this Chapter, has a previous conviction for a sexual offence
against a child or a person whose particulars
are forwarded to the Registrar in terms of subsection (5); and
(e) any person who, in
any court in any foreign jurisdiction-
(i) has been
convicted of any offence equivalent to the commission of a sexual offence against a child; or
(ii) has
been dealt with in a manner equivalent to that contemplated in paragraph (b),
whether committed before or after
the commencement of this Chapter.
(2) (a) A court that has —
(i) convicted
a person of a sexual offence against a child must, after sentence has been
imposed by that court for such offence, and in the presence of the convicted
person; or
(ii) made
a finding and given a direction in terms of section 77(6) or 78(6) of the
Criminal Procedure Act, 1977, that the person is by reason of mental illness or
mental defect not capable of understanding the proceedings so as to make a
proper defence or was, by reason of mental illness or mental defect, not
criminally responsible for the act which constituted a sexual offence against a
child,
must make an
order that the particulars of the person be included in the Register.
(b) The particulars of a person contemplated
in subsection (1) must remain in the Register –
(i) for
the applicable period contemplated in section 48(1) or (2) in the case of a
person contemplated in subsection (1)(a), (c), (d) or (e)(i); or
(ii) in
the case of a person contemplated in subsection (1)(b) or (e)(ii), for
an indefinite period or until such time as such
person has recovered from the mental illness or mental defect in question and
is released in terms of the Mental Health Care Act, 2002 (Act No. 17 of 2002),
from any restrictions imposed on him or her.
(c) When making an order contemplated in
paragraph (a), the court must explain the contents and implications of
such an order to the person in question.
(3) Where
a court has made an order under subsection (2)(a), the Registrar or
clerk of the court must forthwith forward the order to the Registrar, together
with all the particulars referred to in section 46 of the person in question,
and the Registrar must immediately and provisionally, in the prescribed manner,
enter the particulars of the person concerned in the Register pending the
outcome of any appeal or review and must, after –
(a) the period for noting an appeal or taking the matter on
review has expired; or
(b) the
appeal or review proceedings have been concluded in the case of an appeal or
review,
either
endorse or remove such particulars from the Register, depending on the outcome
of the appeal or review, if any.
(4) (a) The Commissioner of Correctional Services must, in the
prescribed manner and within three
months after the commencement of this Chapter, forward to the Registrar the particulars
referred to in section 46 of every prisoner, who, at the commencement of this
Chapter, is serving a sentence of imprisonment as the result of a conviction
for a sexual offence against a child and the Registrar must forthwith endorse
the Register accordingly.
(b) The Commissioner of Correctional
Services must, in the prescribed manner and period, inform each prisoner whose
particulars have been forwarded to the Registrar of the implications thereof.
(5) The National Commissioner of the South
African Police Service must, in the prescribed manner and within three months
after the commencement of this Chapter, forward to the Registrar all the
particulars in his or her possession referred to in section 46 of every person,
who, at the commencement of this Chapter, has a previous conviction for a
sexual offence against a child, including, as far as is possible, a conviction
for an offence against a child in terms of the Sexual Offences Act, 1957 (Act
No. 23 of 1957), and the Registrar must forthwith endorse the Register
accordingly.
(6) (a) The
Director-General: Health must, in the
prescribed manner and within three months after the commencement of this
Chapter, forward to the Registrar the particulars referred to in section 46 of
every person, who, at the commencement of this Chapter, is subject to a direction
in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977, as the
result of an act which constituted a sexual offence against a child and the
Registrar must forthwith endorse the Register accordingly.
(b) The Director-General: Health must, in the prescribed manner and
period, inform each person referred to in paragraph (a) whose
particulars who have been forwarded to the Registrar of the implications
thereof.
(7) (a) A
person whose physical and postal address or other contact details have been
submitted to the Registrar in terms of this section must notify the Registrar
of any change thereof within 14 days after such change.
(b) Any person referred to in paragraph (a)
who intentionally fails to notify the Registrar of any change of his or her
physical or postal address or other contact details, is guilty of an offence
and is liable on conviction to a fine or to imprisonment for a period not
exceeding two years.
Removal of
particulars from Register
48. (1) Subject to
subsections (2) and (3), the particulars of a person who has been sentenced for
a conviction of a sexual offence against a child –
(a) to a term of imprisonment without the option of a fine for a
period –
(i) of
at least six months but not exceeding eighteen months may,
on application as contemplated in subsection (3), be removed from the Register
after a period of ten years has lapsed after that person has been released from
prison; or
(ii) of
six months or less may, on application as contemplated in subsection (3), be
removed from the Register after a period of seven years has lapsed after that
person has been released from prison;
(b) to
any other form of lesser punishment may, on
application as contemplated in subsection (3), be removed from the Register after
a period of five years has lapsed since the particulars of that person were
included in the Register.
(2) The
particulars of a person who has—
(a) been
sentenced for a conviction of a sexual offence against a child to a term of
imprisonment without the option of a fine for a period exceeding eighteen
months; or
(b) more than one conviction of a sexual offence against a child,
may not be
removed from the Register.
(3) (a) A person falling into the categories contemplated in
subsection (1) may apply, in the prescribed manner, to the Registrar to have
his or her particulars removed from the Register.
(b) The Registrar must, after considering
the application, remove the particulars of the person contemplated in paragraph
(a) from the Register, unless the person
concerned has an investigation or a charge relating to a sexual offence pending
against him or her and the relevant investigation or case has not yet been
finalised, in which event the finalisation of the application must be postponed
until a relevant person concerned has informed the Registrar, in the prescribed
manner, of the outcome of the investigation or case.
(c) The Registrar
may, at the request of a person whose particulars are included in the Register,
remove those particulars from the Register if the Registrar is satisfied that
the entry of those particulars in the Register was clearly in error.
Persons
entitled to apply for certificate in respect of particulars included in
Register
49. An application for a prescribed certificate, stating whether
or not the particulars of a person mentioned in the application are recorded in
the Register as having a conviction for a sexual offence against a child, may
be made in the prescribed manner by—
(a) a
person who –
(i) manages
or operates or participates or assists in the management or operation of a
child and youth care centre, a partial care facility, a shelter or drop-in
centre, a cluster foster care scheme, a school, club, association or business
providing services to or for children;
(ii) works
with or has access to children at an institution providing welfare services to
children, including a child and youth care centre, a partial care facility, a
shelter or drop-in centre, a school, a club, association or business providing
services to or for children;
(iii)
is involved in the implementation of a cluster foster care scheme or any
other scheme involving children, either as an employee, volunteer or in any
other capacity;
(iv) is
permitted to become the foster parent, kinship care-giver or adoptive parent of
a child;
(v) works
in any unit of the South African Police Service tasked with child protection;
or
(vi) is
an employee of any other institution established in terms of any legislation
that is administered by the Department of Social Development and in any manner
whatsoever relates to children;
(b) the
National Commissioner of the South African Police Service or the Commissioner
of Correctional Services;
(c) a person in a position of
authority or supervision over or care of a child or children or providing,
allowing or granting access to a child or children;
(d) a
person who intends applying for any position at any centre, facility, shelter,
scheme, school, club, association, business or unit contemplated in paragraph (a),
either as an employee, volunteer or in any other capacity, which will place
such person in a position to work with a child or children, or in a position of
authority or supervision over or care of a child or children or of gaining
access to a child or children; or
(e) a
person who works or participates in any other form of employment or activity as
may be prescribed.
Confidentiality
and disclosure of information
50. (1) Any person who
discloses any information which he or she has acquired in the exercise of the
powers, performance of the functions or carrying out of the duties conferred
upon, assigned to or imposed upon him or her under this Chapter, except—
(a) for the purpose of giving effect to the provisions of this
Chapter; or
(b) when required to do so by any competent court,
is guilty of
an offence and is liable on conviction to a fine or to imprisonment for a
period not exceeding three years or to both a fine and such imprisonment.
(2) Except in so far as it may be necessary
for the purposes of this Chapter, any person who willfully or in a grossly
negligent manner discloses any information to any other person which he or she
has acquired as a result of an application contemplated in section 51 or in any
other manner in terms of this Chapter and which
indicates that another person has a conviction for a sexual offence against a
child, is guilty of an offence and is liable on conviction to a fine or to
imprisonment for a period not exceeding three years or to both a fine and such
imprisonment.
Regulations
pertaining to Register
51. (1) The Minister
must, after consultation with the cabinet members responsible for safety and
security, correctional services, social development and health, if applicable,
make regulations relating to—
(a) the
manner and format in which the Register is to be established and maintained as
contemplated in section 46(a);
(b) any particulars to be
included in the Register, in addition to those mentioned in section 46(b)(i)
to (iv);
(c) the manner in which the
Commissioner of Correctional Services must forward particulars of prisoners who
are serving a sentence of imprisonment as the result of a conviction for a
sexual offence against a child to the Registrar as contemplated in section
47(4)(a);
(d) the manner and period
within which the Commissioner of Correctional Services must inform each
prisoner whose particulars have been forwarded to the Registrar as contemplated
in section 47(4)(b);
(e) the
manner in which the National Commissioner of the South African Police Service
must forward particulars of persons with a previous conviction for a sexual
offence against a child to the Registrar as contemplated in section 47(5);
(f) the
manner in which the Director-General:
Health must forward particulars of persons who are subject to a
direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act,
1977, as result of an act which constituted a sexual offence against a child to
the Registrar as contemplated in section 47(6)(a);
(g) the
manner and period within which the Director-General: Health must inform each person whose particulars have been
forwarded to the Registrar as contemplated in section 47(6)(b);
(h) the
manner in which persons mentioned in section 49 must apply to the Registrar for
a certificate;
(i) the format of the certificate
contemplated in section 49;
(j) persons who may apply for
a certificate in terms of section 49(e);
(k) the period within which a
certificate contemplated in section 49 must be provided to any applicant by the
Registrar;
(l) access to the Register;
(m) the safe-keeping and disposal of
records; and
(n) any
aspect in this Chapter in respect of which regulations may be required or are
necessary.
(2) Regulations made in terms of subsection
(1) may, in respect of any contravention thereof or failure to comply
therewith, prescribe as a penalty a fine or imprisonment for a period not
exceeding 12 months.
(3) Any Regulation made in terms of this
section must be submitted to Parliament at least thirty days before publication
thereof in the Gazette.
Definitions
and Interpretation
52. For purposes of this Chapter, and unless the context indicates
otherwise–
(a) "certificate" means the certificate
contemplated in section 49;
(b) "child
and youth care centre", "partial care facility", "shelter",
"drop-in centre" and "cluster foster care scheme"
have the same meaning given to these terms in the Children's Act, 2005;
(c) "Register" means the National
Register for Sex Offenders established under section 44(1); and
(d) "Registrar" means the Registrar of
the National Register for Sex Offenders contemplated in section 44(2).
CHAPTER 7
GENERAL PROVISIONS
Part 1:
Defences, evidentiary matters and extra-territorial jurisdiction
Defences
53. (1) Whenever an
accused person is charged with an offence under section 3, 4, 5, 6 and 7 it is
not a valid defence for that accused person to contend that a marital or other
relationship exists or existed between him or her and the complainant.
(2) Whenever an accused person is charged
with an offence under—
(a) section 3 or 5, it is a valid defence to
such charge insofar as it relates to an act of sexual penetration or sexual
violation, as the case may be, with a mentally disabled person to contend that
he or she reasonably believed that the mentally disabled person was not mentally
disabled and was 18 years or older at the time of the alleged commission of the
offence;
(b) section 14 or 15, it is, subject to
subsection (3), a valid defence to such a charge to contend that the child deceived the
accused person into believing that he or she was 16 years or older at the time
of the alleged commission of the offence and the accused person reasonably
believed that the child was 16 years or older; or
(c) section 15, it is, subject to subsection
(3), a valid defence to such a charge to contend that both the accused persons were
children and the age difference between them was not more than two years at the
time of the alleged commission of the offence.
(3) The provisions of subsection (2)(c)
or (2)(d) do not apply if—
(a) the accused person is related to the
child within the prohibited incest degrees of blood, affinity or an adoptive
relationship; or
(b) the child lacked the intellectual
development to appreciate the nature of an act of sexual penetration or sexual
violation.
(4) A
person may not be convicted of an offence in terms of section 16(3), (4) or (5)
or section 23(3), (4) or (5), if that person is¾
(a) a child;
and
(b) not a person contemplated in section
16(1) or 23(1), as the case may be.
Evidence of previous consistent
statements
54. Evidence relating to previous consistent statements by a
complainant shall be admissible in criminal proceedings involving the alleged
commission of a sexual offence:
Provided that the court may not draw any inference only from the absence
of such previous statements.
Evidence of
delay in reporting
55. In criminal proceedings involving the alleged commission of a
sexual offence, the court may not draw any inference only from the length of
any delay between the alleged commission of such offence and the reporting
thereof.
Extra-territorial jurisdiction
56. (1) Even if the act alleged
to constitute a sexual offence under this Act occurred outside the Republic, a
court of the Republic, whether or not the act constitutes an offence at the
place of its commission, has jurisdiction in respect of that offence if the
person to be charged –
(a) is a citizen of the Republic;
(b) is ordinarily resident in the
Republic;
(c) was
arrested in the territory of the Republic, or in its territorial waters or on
board a ship or aircraft registered or required to be registered in the
Republic at the time the offence was committed;
(d) is a company,
incorporated or registered as such under any law, in the Republic; or
(e) any
body of persons, corporate or unincorporated, in the Republic.
(2) Any act alleged to constitute a sexual
offence under this Act and which is committed outside the Republic by a person,
other than a person contemplated in subsection (1)(a), is, whether or
not the act constitutes an offence at the place of its commission, deemed to
have been committed in the Republic if that –
(a) person is found in the Republic; and
(b) person
is, for any reason, not extradited by the Republic or if there is no
application to extradite that person.
(3) Any offence committed in a country
outside the Republic as contemplated in subsection (1) or (2), is, for purposes
of determining the jurisdiction of a court to try the offence, deemed to have
been committed –
(a) at the place where the complainant is ordinarily resident; or
(b) at the accused person’s principal place of business.
Part 2: National policy framework
National policy framework
57. (1) The Minister
must, after consultation with the cabinet members responsible for safety and
security, correctional services, social development and health and the National
Director of Public Prosecutions, adopt a national policy framework to ensure a
uniform and co-ordinated approach by all Government departments and
institutions in dealing with matters relating to sexual offences and to guide
the implementation, enforcement and administration of this Act and service
delivery in terms of this Act.
(2) The Minister must¾
(a) within
one year after the implementation of this Act,
table the policy framework in Parliament;
(b) publish the policy framework in the Gazette;
(c) review the policy framework at least once every five years;
and
(d) amend the policy framework when required.
Establishment of Inter-sectoral Committee
58. (1) There is
hereby established a Committee to be known as the Inter-sectoral Committee for
the Management of Sexual Offence Matters.
(2) The
Committee shall consist of¾
(a) the
Director-General: Justice and Constitutional Development, who shall be the
chairperson of the Committee;
(b) the National Commissioner of the South African Police
Service;
(c) the Commissioner of Correctional Services;
(d) the Director-General: Social Development;
(e) the Director-General: Health; and
(f) the
National Director of Public Prosecutions.
(3) The members of the Committee may
designate an alternate to attend a meeting of the Committee in their place.
(4) The members of the Committee shall
designate one of its members as deputy chairperson of the Committee, and when
the chairperson is not available, the deputy chairperson shall act as
chairperson.
Meetings of Committee
59. (1) A meeting of
the Committee shall be held at a time and place determined by the chairperson.
(2) The procedure, including the manner in
which decisions shall be taken, to be followed at meetings of the Committee and
the manner in which the Committee shall conduct its affairs shall be determined
by the Committee.
Responsibilities, functions and duties of Committee
60. (1) The Committee
shall be responsible for developing and compiling a draft national policy
framework, as contemplated in section 57(1), which must include guidelines for¾
(a) the
implementation of the priorities and strategies contained in the national
policy framework;
(b) measuring
progress on the achievement of the national policy framework objectives;
(c) ensuring
that the different organs of state comply with the primary and supporting roles
and responsibilities allocated to them in terms of the national policy framework
and this Act; and
(d) monitoring
the implementation of the national policy framework and of this Act.
(2) The Committee may make recommendations
to the Minister with regard to the amendment of the national policy framework.
(3) The Minister must submit annual reports
to Parliament, by each Department or institution contemplated in section 58(2),
on the implementation of this Act.
Part 3: National instructions and directives, regulations
and repeal and amendment of laws
National instructions and directives
61. (1) (a) The National Commissioner of the South
African Police Service must, in consultation with the Minister of Safety and
Security and after consultation with the
Minister, the National Director or Public Prosecutions, the National Commissioner
of Correctional Services and the Directors-General: Health and Social Development, issue and publish in the Gazette
national instructions regarding all matters which are reasonably necessary or
expedient to be provided for and which must be followed by all police officials
who are tasked with receiving reports of and the investigation of sexual
offence cases, in order to achieve the objects of this Act as set out in
section 2 and the Preamble, particularly those objects which have a bearing on
complainants of such offences, including the following :
(i) The
manner in which the reporting of an alleged sexual offence is to be dealt with
by police officials; and
(ii) the
manner in which sexual offence cases are to be investigated by police
officials, including the circumstances in which an investigation in respect of
a sexual offence may be discontinued.
(b) The National Commissioner of the South
African Police Service must develop training courses, which must –
(i) include training on the national instructions
referred to in paragraph (a);
(ii) include social context training in
respect of sexual offences; and
(iii) provide for and promote the use of
uniform norms, standards and procedures,
with a view
to ensuring that as many police officials as possible are able to deal with
sexual offence cases in an appropriate, efficient and sensitive manner.
(2) (a) The National Director of Public Prosecutions must, in
consultation with the Minister and after consultation with the National
Commissioners of the South African Police Service and Correctional Services and the Directors-General: Health and Social Development, issue and publish in the Gazette
directives regarding all matters which are reasonably necessary or expedient to
be provided for and which are to be followed by all members of the prosecuting
authority who are tasked with the institution and conducting of prosecutions in
sexual offence cases, in order to achieve the objects of this Act as set out in
section 2 and the Preamble, particularly those objects which have a bearing on
complainants of such offences, including the following:
(i) The
manner in which sexual offence cases should be dealt with in general, including
the circumstances in which a charge may be withdrawn or a prosecution stopped;
(ii) the
circumstances in which the prosecution must apply to court for an order that a
witness give evidence by means of closed circuit television as provided for in
section 158 of the Criminal Procedure Act, 1977;
(iii) the circumstances in which the prosecution must request the
court to consider appointing a competent person as an intermediary as provided
for in section 170A of the Criminal Procedure Act, 1977;
(iv) the
circumstances in which the prosecution must request the court to consider
directing that the proceedings may not take place in open court as provided for
in section 153 of the Criminal Procedure Act, 1977;
(v) the
circumstances in which the prosecution must request the court to consider
prohibiting the publication of the identity of the complainant in the case as
provided for in section 154 of the Criminal Procedure Act, 1977, or of the
complainant's family, including the publication of information that may lead to
the identification of the complainant or the complainant's family;
(vi) the
circumstances and manner in which Directors of Public Prosecution should
authorise and institute a prosecution contemplated in section 15(2), dealing
with consensual sexual assault with the view to ensuring uniformity;
(vii) the information to be placed before a court during sentencing,
including pre-sentence reports and information on the impact of the sexual
offence on the complainant; and
(viii) the manner in which prosecutors must ensure that an order
contemplated in section 46(2)(a) (dealing with an order of a court to
include the accused's name in the Register) is forwarded to and received by the
Registrar of the National Register for Sex Offenders.
(b) The National Director of Public
Prosecutions must develop training courses, which must –
(i) include training on the directives
referred to in paragraph (a);
(ii) include social context training in
respect of sexual offences; and
(iii) provide for and promote the use of
uniform norms, standards and procedures,
with a view
to ensuring that as many prosecutors as possible are able to deal with sexual
offence cases in an appropriate, efficient and sensitive manner.
(3) (a) The Director-General:
Health must, in consultation with the Minister of Health and after
consultation with the Directors-General:
Justice and Constitutional Development and Social Development and the
National Commissioners of the South African Police Service and Correctional
Services, publish in the Gazette directives regarding all matters which
are reasonably necessary or expedient to be provided for and which are to be
followed by all health care practitioners who are tasked with the administering
of Post Exposure Prophylaxis in sexual offence cases, in order to achieve the
objects of this Act as set out in section 2 and the Preamble, particularly
those objects which have a bearing on complainants of such offences.
(b) The Director-General: Health must develop training courses, which
must –
(i) include training on the directives
referred to in paragraph (a); and
(ii) provide for and promote the use of
uniform norms, standards and procedures,
with a view
to ensuring that as many health care practitioners as possible are able to deal
with sexual offence cases in an appropriate, efficient and sensitive manner.
(4) (a) The national instructions and directives by each Department or institution, contemplated in this section, must
be:
(i) submitted
to Parliament within six months after the commencement of this section, before
publication in the Gazette; and
(ii) published in the Gazette.
(b) Paragraph (a) applies to any new
or amended national instructions or directives issued under this section with
the changes required by the context.
(5) (a) The training courses contemplated in this section must be
tabled in Parliament within six months after the commencement of this Act.
(b) The cabinet members responsible for
safety and security, the administration of justice and health must, within a
year after the commencement of this Act and every 12 months thereafter, table a
report in Parliament relating to the implementation of the training courses.
(c) Any new or amended training courses
developed under this section must be tabled in Parliament within 14 days of the
finalisation thereof.
Regulations
62. The
Minister, after consultation with the cabinet member responsible for safety and
security, correctional services, social development and health and the National
Director of Public Prosecutions, may make regulations regarding¾
(a) any
matter which is required or permitted by this Act to be prescribed by
regulation;
(b) the inter-sectoral implementation of this Act; and
(c) any
other matter which is necessary or expedient to be prescribed in order to
achieve or promote the objects of this Act.
Repeal and amendment of laws
63. (1) The common law relating
to the—
(a) irrebutable
presumption that a female person under the age of 12 years is incapable of consenting
to sexual intercourse; and
(b) crimes
of rape, indecent assault, incest, bestiality and violation of a corpse,
insofar as it relates to the commission of a sexual act with a corpse,
is hereby
repealed.
(2) The laws specified in the Schedule are repealed
or amended to the extent indicated in the third column of that Schedule.
Part 4: Transitional
provisions
Transitional
provisions
64. (1) All criminal proceedings relating to the
common law crimes referred to in section 63(1) which
were instituted prior to the commencement of this Act and which are not
concluded before the commencement of this Act must be continued and concluded
in all respects as if this Act had not been passed.
(2) An investigation or prosecution or other
legal proceedings in respect of conduct which would have constituted one of the
common law crimes referred to in section 65(1) which was initiated before the
commencement of this Act may be concluded, instituted and continued as if this
Act had not been passed.
(3) Despite the repeal or amendment of any
provision of any law by this Act, such provision, for purposes of the disposal
of any investigation, prosecution or any criminal or legal proceedings
contemplated in subsection (1) or (2), remains in force as if such provision
had not been repealed or amended.
Part 5: Transitional provisions relating to
trafficking in persons for sexual purposes
Application
and interpretation
65. (1) Pending the
adoption of legislation in compliance with the United Nations Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the United Nations Convention Against Trans-National Organized
Crime (signed on 14 December 2000) and the repeal of this Part, the
transitional provisions in this Part relating to the trafficking in persons for
sexual purposes are provisionally provided for in partial compliance of our
international obligations and to deal with this rapidly growing phenomena
globally.
(2) For purposes of this Part–
(a) “commercial carrier” includes a
company, or the owner, operator or master of any means of transport, that
engages in the transportation of goods or people for commercial gain; and
(b) “trafficking”
includes the supply, recruitment, procurement, capture, removal,
transportation, transfer, harbouring, sale, disposal or receiving of a person,
within or across the borders of the Republic, by means of—
(a) a threat
of harm;
(b) the threat
or use of force, intimidation or other forms of coercion;
(c) abduction;
(d) fraud;
(e) deception or
false pretences;
(f) the abuse of power or of a position
of vulnerability, to the extent that the complainant is inhibited from
indicating his or her unwillingness or resistance to being trafficked, or
unwillingness to participate in such an act; or
(g) the giving
or receiving of payments or benefits,
for
the purpose of any form or manner of sexual exploitation, grooming or abuse of
such person, whether committed in or outside the borders of the Republic,
including for the purpose of the commission of a sexual offence or sexual act,
or sexual exploitation or sexual grooming as contemplated in this Act, or
exploitation for purposes of pornography or prostitution, with, against or of
such person, and “trafficks” and “trafficked” have a
corresponding meaning.
Trafficking
in persons for sexual purposes
66. (1) A person
("A") who trafficks any person ("B"), without the consent
of B, is guilty of the offence of trafficking in persons for sexual purposes.
(2) For the purpose of subsection (1),
"consent" means voluntary or uncoerced agreement.
(3) Circumstances in which B does not
voluntarily or without coercion agree to being trafficked, as contemplated in
subsection (1), include, but are not limited to, the following—
(a) where B submits or is subjected to such
an act as a result of any one or more of the means or circumstances contemplated
in subparagraphs (a) to (g) of the definition of trafficking having been used
or being present; or
(b) where B is incapable in law of appreciating
the nature of the act, including where B is, at the time of the
commission of such act—
(i) asleep;
(ii) unconscious;
(iii) in
an altered state of consciousness, including under the influence of any
medicine, drug, alcohol or other substance, to the extent that B's
consciousness or judgement is adversely affected;
(v) a mentally disabled person; or
(vi) a child.
(4) A
person who—
(a) orders, commands, organises,
supervises, controls or directs trafficking;
(b) performs any act which is
aimed at committing, causing, bringing about, encouraging, promoting, contributing towards or participating in
trafficking; or
(c) incites, instigates,
commands, aids, advises, recruits, encourages or procures any other person to
commit, cause, bring about, promote, perform, contribute towards or participate
in trafficking,
is guilty of an offence.
(5) A person who has been trafficked is not
liable to stand trial for any criminal offence, including any migration-related
offence or prostitution, which was committed as a direct result of being
trafficked.
(6) (a) A commercial carrier commits an offence if the carrier brings
a person into or removes a person from the Republic and, upon entry into or
departure from the Republic, the person does not have the travel documents
required for lawful entry into or departure from the Republic.
(b) A
commercial carrier is not guilty of an offence under paragraph (a) if¾
(i) the carrier
had reasonable grounds to believe that the documents that the person has are
the travel documents required for lawful entry into or departure from the
Republic by that person;
(ii) the person
possessed the travel documents required for lawful entry into or departure from
the Republic when that person boarded, or last boarded, the means of transport
to travel to or from the Republic; or
(iii) entry into
the Republic occurred only because of illness of or injury to a child or adult
on board, stress of weather or other circumstances beyond the control of the
commercial carrier.
(c) A
commercial carrier is, in addition to any offence under this section, liable to
pay the costs of the trafficked person's care and safekeeping and return from,
the Republic.
(d) A court must, when convicting a commercial carrier of an
offence under this section, in addition order the commercial carrier concerned
to pay the costs contemplated in paragraph (c).
Short title
and commencement
67. This Act is called the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2006, and takes effect on 21 March 2006 or an
earlier date fixed by the President by proclamation in the Gazette.
SCHEDULE 1
LAWS AMENDED OR REPEALED BY SECTION
63
|
No. and
year of law |
Short
title |
Extent
of repeal or amendment |
|
Act 23 of 1957 |
Sexual Offences Act |
1. The amendment of section 1 by the
insertion after the definition of “owner” of the following definition: ‘”person” means a person
of 18 years and older;’. 2. The repeal of sections 9, 11, 13, 14,
15, 18, 18A and 20A. |
|
Act 51 of 1977 |
Criminal Procedure Act |
1. The substitution for section 18 of the
following section: “Prescription
of right to institute prosecution 18. The right to institute a
prosecution for any offence, other than the offences [of] – (a) of murder; (b) of
treason
committed when the Republic is in a state of war; (c) of
robbery,
if aggravating circumstan-ces were present; (d) of kidnapping; (e) of child-stealing; [or] (f) contemplated in
sections 3, 4, 5, 6, 7 and 16 to 29 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2006; or (g) of the crime of genocide, crimes
against humanity and war crimes, as contemplated in section 4 of the
Implementation of the Rome Statute of the International Criminal Court Act,
2002, shall,
unless some other period is expressly provided for by law, lapse after
the expiration of a period of 20 years from the time when the offence was
committed.”. 2. The amendment of section 154 - (a) by the
substitution for subsection (5) of the following subsection: “(5) Any
person who publishes any information in contravention of this section or
contrary to any direction or authority under this section or who in any
manner whatever reveals the identity of a witness in contravention of a
direction under section 153(2), shall be guilty of an offence and liable on
conviction to a fine [not exceeding R1 500] or to imprisonment
for a period not exceeding [one year] three years or to both
such fine and such imprisonment if the person in respect of whom the
publication or revelation of identity was done, is over the age of 18 years,
and if such person is under the age of 18 years, to a fine or to imprisonment
for a period not exceeding five years or to both such fine and such
imprisonment.” (b) by the
addition of the following subsection: “(6) The provisions of
section 300 are applicable, with the changes required by the context, upon
the conviction of a person in terms of subsection (5) and if - (a)
the criminal proceedings that gave rise to the publication
of information or the revelation of identity as contemplated in that
subsection related to a charge that an accused person committed or attempted
to commit any sexual act as
contemplated in the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2006, towards or in connection with any other person or any
act for the purpose of procuring or furthering the commission of a sexual
act, as contemplated in that Act, towards or in connection with any other
person; and (b)
the other person referred to in paragraph (a)
suffered any physical, psychological or other injury or loss of income or
support.” 3. The amendment of section 164 by the substitution for
subsection (1) of the following subsection: “(1)
Any person, who [from ignorance arising from youth, defective
education or other cause,] is found not to understand the nature and
import of the oath or the affirmation, may be admitted to give evidence in
criminal proceedings without taking the oath or making the affirmation:
Provided that such person shall, in lieu of the oath or affirmation, be
admonished by the presiding judge or judicial officer to speak the truth[,
the whole truth and nothing but the truth].” 4. The amendment of section 170A by- (a) the substitution for subsection (1) of the
following subsection: "(1) Whenever criminal proceedings are pending
before any court and it appears to such court that it would expose any
witness under the biological or mental age of eighteen years to undue
mental stress or suffering if he or she testifies at such proceedings, the
court may, subject to subsection (4), appoint a competent person as an
intermediary in order to enable such witness to give his or her evidence
through that intermediary."; and (b) the
addition after subsection (6) of the following subsection: “(7) An
intermediary referred to in subsection (5) shall be summoned to appear in
court on a specified date and at a specified place and time to act as an
intermediary and shall, upon failure to appear as directed, appear before the
court to advance reasons for such failure, upon which the court may act as it
deems fit.” 9. 5. The
amendment of section 195 by the substitution in subsection (1) for paragraph (a)
of the following paragraph: “(a) any
offence committed against the person of either of them or of a child of
either of them or of a child that is in the care of either of them;”. 6. The
amendment of section 227 - (a) by the substitution for the heading of
the following heading: "Evidence
of character and previous sexual history "; (b) by the substitution for subsection (1)
of the following subsection: “(1) Evidence as to the character of an
accused or as to the character of any [female] person against
or in connection with whom a sexual offence as contemplated in the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2006, is
alleged to have been committed, shall, subject to the provisions of
subsection (2), be admissible or inadmissible if such evidence would have
been admissible or inadmissible on the thirtieth day of May, 1961.”; (c) by the substitution for subsection (2)
of the following subsection: "(2) No evidence as to any previous sexual [intercourse
by, or any sexual] experience or conduct of any [female] person
against or in connection with whom a
sexual offence is alleged to have been committed, other than evidence
relating to sexual experience or conduct in respect of the offence which is
being tried, shall [not] be adduced, and [such female shall not
be questioned] no evidence or question in cross examination
regarding such sexual [intercourse or sexual] experience or conduct,
[except with the leave of the court, which leave shall not be granted
unless the court is satisfied that such evidence or questioning is relevant:
Provided that such evidence may be adduced and such female may be so
questioned in respect of the offence which is being tried] shall be
put to such person, the accused or any other witness at the
proceedings pending before the court unless the court has, on application by
any party to the proceedings, granted leave to adduce such evidence or to put
such question, or such evidence has been introduced by the defence.” ; (d) by the substitution for subsection
(3) of the following subsection: “(3) Before an application for leave
contemplated in subsection (2) is heard, the court [shall] may
direct that any person, including the complainant, whose presence is
not necessary may not be present at the proceedings [and the court may
direct that a female referred to in subsection (2) may not be present].”; (e) by the substitution for subsection
(4) of the following subsection: “(4) The court shall, subject to subsection (5), grant the
application referred to in subsection (2) if satisfied that such evidence or
questioning – (a) relates to a specific instance of
sexual activity relevant to a fact in issue; (b) is likely to rebut evidence
previously adduced by the prosecution; (c) is likely to explain the presence
of semen or the source of pregnancy or disease or any injury to the
complainant, where it is relevant to a fact in issue; (d) is not substantially outweighed by
its potential prejudice to the complainant’s personal dignity and right to
privacy; or (e) is fundamental to the accused’s
defence."; and (f) by the addition after subsection (4)
of the following subsection: “(5) The court shall not grant an application referred to in
subsection (2) if, in its opinion, such evidence or questioning is sought to
be adduced to support an inference that by reason of the sexual nature of the
complainant’s experience or conduct, the complainant – (i) is more likely to have consented to
the offence being tried; or (ii) is less worthy of belief.”; 7. The amendment of section 238 by- (a) the substitution for subsection (1) of the
following subsection: “(1) At criminal
proceedings at which an accused is charged with [incest] the
offence referred in section 11 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2006 – (a) it shall be sufficient to prove that
the [woman or girl on] person against whom or by whom the
offence is alleged to have been committed, is reputed to be the lineal
ascendant or descendant or the sister, brother, stepmother, stepfather,
[or] stepdaughter or stepson of the other party to the incest; (b) the accused shall be presumed, unless
the contrary is proved, to have had knowledge, at the time of the alleged
offence, of the relationship existing between him or her and the other
party to the [incest] offence.” ; and (b) the substitution for subsection (2) of the
following subsection: "(2) Whenever the fact that any lawful and
binding marriage was contracted is relevant to the issue at criminal
proceedings at which an accused is charged with [incest] the
offence referred to in section 11 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2006, such fact may be proved prima
facie in the manner provided in section 237 for the proof of the
existence of a lawful and binding marriage of a person charged with
bigamy.". 8. The
amendment of section 276A - (a) by the
substitution in subsection (1) for
paragraph (b) of the following paragraph: “(b) for a fixed period not exceeding three
years, or in the case of a conviction for any offence referred to in the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2006, for a
fixed period not exceeding five years.”; and (b) by the
insertion after subsection (2) of the following subsection: “(2A) Punishment imposed under
paragraph (h) or (i) of section 276(1) on a person convicted of any
sexual offence shall, if practicable and if the convicted person demonstrates
the potential to benefit from treatment, include the attendance of and
participation in a sex offence specific accredited treatment programme, the
cost of which shall be borne by the convicted person himself or herself.". 9. The amendment of section 335A - (a) by the
substitution for subsection (2) of the following subsection: “(2) Any person who contravenes the
provisions of subsection (1) shall be guilty of an offence and liable on
conviction to a fine [not exceeding R1 500] or to imprisonment for a
period not exceeding [one year] two years or to both such fine
and such imprisonment if the person whose identity has been revealed is
over the age of 18 years, and if such person is under the age of 18 years, to
a fine or to imprisonment for a period not exceeding three years or to both
such fine and such imprisonment.”; and (b) by the
addition after subsection (2) of the following subsection: “(3) The provisions of section 300 are applicable, with the
changes required by the context, upon the conviction of a person in terms of
subsection (2) and if the person whose identity has been revealed suffered
any physical, psychological or other injury or loss of income or support.” |
|
Act 68 of 1969 |
Prescription Act |
1. The amendment of section 12 - (a) by the
substitution for subsection (1) of the following subsection: “(1) Subject
to the provisions of subsections (2), [and] (3), and (4),
prescription shall commence to run as soon as the debt is due.”; and (b) by the
addition after subsection (3) of the following subsection: “(4) Prescription shall not commence to run in respect of
a debt based on sexual abuse during the time in which the creditor is unable
to institute proceedings because of his or her physical, mental or
psychological condition.” |
|
Act 105 of 1997 |
Criminal Law Amendment Act |
1. The amendment of Schedule 2 by- (a) the
substitution in Part I for paragraph (c) of the offence of “murder”
for the following paragraph: “(c) the
death of the victim was caused by the accused in committing or attempting to
commit or after having committed or attempted to commit one of the following [offences]: (i) [Rape]
the offences referred to in section 3 or 4 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2006; or (ii) the offence of robbery with aggravating
circumstances as defined in section 1 of the Criminal Procedure Act, 1977
(Act 51 of 1977); or”; (b) the
substitution in Part I for the word “Rape”, following paragraph (d) of
the offence “Murder”, for the following words: “[Rape]
The offences referred to in section 3 or 4 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2006-” (c) the substitution in Part I for paragraph (b)
of the offence of Rape for the following paragraph: "(b) where
the victim - (i) is a [girl]
person under the age of 16 years; (ii) is a physically
disabled [woman] person who, due to his or her physical
disability, is rendered particularly vulnerable; or (iii) is a
mentally ill [woman] person as contemplated in section 1 of the
Mental Health Act, 1973 (Act 18 of 1973); ”; and (d) the
substitution for Part III of the following Part: “PART III [Rape
in] The
offences referred to in section 3 or 4 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2006, committed under circumstances
other than those referred to in Part I. [Indecent
assault on] The offences referred to in section 5, 6 or 7 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2006, committed against
a child under the age of 16 years, involving the infliction of grievous
bodily harm. The
offences referred to in section 16, 17, 23 or 24 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2006. Assault
with intent to do grievous bodily harm on a child under the age of 16 years. Any offence
in contravention of section 36 of the Arms and Ammunitions Act, 1969 (Act 75
of 1969), on account of being in possession of more than 1000 rounds of
ammunition intended for firing in an arm contemplated in section 39(2)(a)(i)
of that Act.”. |
|
Act 121 of 1998 |
Prevention of Organised Crime Act |
1. Schedule 1 of the Act is hereby
amended by the— (a) substitution for item 2 of the
following item: “contravention
of section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2006:”; (b) substitution for item 8 of the
following item: “contravention
of section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2006;”; and (c) substitution for item 9 of the
following item: “any
offence contemplated in Part 2 of Chapter 3 or Chapter 4 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2006;”. |