Words italicised in bold script indicate expressions defined in section 1.

B I LL

To provide for a speedy procedure for a victim of an alleged sexual offence in which exposure to the body fluids of the alleged offender may have occurred; to apply for the compulsory HIV testing of the alleged offender; and the disclosure of the test results to the victim and the alleged offender; and to provide for incidental matters.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:

1. For purposes of this Act

"alleged offender" means a person who is alleged to have committed a sexual offence against a victim;

"application" means an application in terms of section 3(1) for the H/V testing of an alleged offender;

"body fluids" means any body substance which may contain H/V but does not include saliva, tears or perspiration;

"body specimen" means any body sample which can be tested to determine the presence or absence of H/V infection;

"HI V' means the human immuno-deficiency virus;

"H/V test" means any validated, medically recognised test for determining the presence or absence of HIV infection in a person and 'H/V testing' has a corresponding meaning; "interested person" means any person who has a material interest in the well-being of a victim, including a spouse, family member, care giver, friend, 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 investigating an alleged sexual offence which is related to an application, 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);

"Minister" means the Cabinet member responsible for the administration of justice:

"nurse" means a person registered as a nurse in terms of the Nursing Act, 1978 (Act No.50 of 1978);

"prescribeJ' means prescribed by regulation made uhder section 12;

"sexual offence" means an offence involving sexual violence directed at a victim; and "victim" means any person alleging that a sexual offence in which exposure to the body fluids of the alleged offender may have occurred, has been committed against him or her.

2. When any alleged sexual offence is recorted, or as soon thereafer as is reasonably practicable, the police official to whom the offence is reporred or, if, for any reason, he or she is not able to do so, any other police official must-

(a) hand a notice containing information as prescribed regarding compulsory H/V testing

of an alleged offender to the victim or an interested person; and

(b) explain the contents of the notice.

3. (1) (a) Any victim who may have been exposed to the body fluids of an

alleged offender, or any interested person on behalf of such victim, may apply to a

magistrate for an order that the alleged offender be tested for H/V.

(b) If the application is brought by an interested person on behalf of

such victim, it must be brought with the written consent of the victim, unless the victim is -

(a) under the age of 14;

(b) mentally ill;

(c) unconscious;

(d) a person in respect of whom a curator has been appointed in terms of an order of court;

or

(e) a person whom the magistrate is satisfied is unable to provide the required consent.

(2) An application must be made at the earliest possible opportunity after a charge has been laid, and may be made before or after an arrest has been effected.

(3) An application must be made in the prescribed manner and 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.

4. (1) The magistrate to whom an application has been submitted, must, as soon as is reasonably practicable, consider the application in chambers and may, for that purpose, consider such additional evidence as he or she deems fit, including oral evidence or evidence by affidavit, which shall form part of the record of the proceedings: Provided that, for the purpose of such consideration, no evidence may be adduced by or on behalf of the alleged offender.

(2) The consideration of an application-

(a) may not be attended by the alleged offender or his or her legal representative; and

(b) need not be attended by the victim or by the interested person referred to in section 3(1).

(3) If the magistrate is satisfied that there is prima fade 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 50 calendar days have lapsed from the date on which it is alleged that the offence in question took place,

the magistrate must order-

(i) the collection on the same occasion from the alleged offender of two body

(ii) the performance on the body specimens of one or more HIV tests as are reasonably necessary to determine the presence or absence of H/V infection in the alleged offender; and

(iii) the disclosure of the HIV test result so obtained to the victim or to the

interested person referred to in section 3(1), and the alleged offender.

(4) An order referred to in subsection (3)-

(a) must be made in the prescribed manner and handed to the investigating officer; and

(b) is final and no appeal shall lie from it.

(5) The investigating officer must, as soon as is reasonably practicable after an application has been considered-

(a) inform the victim or the in teres ted person referred to in section 3(1) 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 hera notice containing the information as prescflbed and. if necessary, by explaining the contents of the no'~ice.

5. (1) Any order granted in terms of section 4(3), must be fully executed as contemplated in this section within 60 calendar days from the date on which it is alleged that the sexual offence in question took place, failing wh~ch the order shall lapse.

(2) As soon as an order referred to in sect~on 4(3) has been handed to an

(a) the investigating officer must request a medical practitioner or nurse, on the same occasion, 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 this purpose;

(b) the medical practitioner or nurse concerned must, unless the taking of body specimens from the alleged offender cannot be done on medical grounds, take two body specimens from the alleged offender;

(c) the investigating officer must deliver the body specimens to the head of a facility designated in terms of subsection (4) or to a person designated by the head of the facility in writing;

(d) the head of a facility designated in terms of subsection (4) or a person designated in writing by the head of that facility must-

(i) perform one or more H/V tests on the body specimens of ~he alleged offender as are reasonably necessary to determine the presence or absence of H/V infection in the alleged offender;

(ii) record the result of the H/V tests performed in duplicate in the prescribed manner; and

(iii) provide the investigating officer with duplicate sealed records of the test results for purposes of making them available to the victim or to the interested person referred to in section 3(1) and to the alleged offender;

(e) the investigating officer must hand over to the victim or to the interested person referred to in section 3(1), and to the alleged offender-

(i) the sealed record of the test results; and

(ii) a notice containing information as prescribed, and if necessary expTain the contents of the notice.

(3) Any person who must perform any function in terms of subsection (2), must perform that function as soon as is reasonably practicable.

(4) The testing of body specimens to establish an alleged offender's H/V status in terms of this Act must take place at a facility designated for that purpose by the Minister, in consultation with the Minister of Health, by notice in the Gazette, subject to such conditions and requirements as he or she may consider necessary or expedient for achievin~ the objects of this Act.

6. The result of an HIV test performed on the body specimens of an alleged offender in terms of this Act is not admissible as evidence in criminal or civil proceedings.

7. The National Commissioner of the South African Police Service must cause all applications made, and all orders granted, in terms of this Act, to be recorded in the manner determined by the National Commissioner as prescribed.

8. The state is responsible for all costs related to applications made, and the execution of orders granted, in terms of this Act.

Confidentiality of outcome of application

9. The fact that an order for HI V testing of an alleged offender has been granted

as contemplated in section 4 may not be communicated to any person other than-

(a) the victim or the interested person referred to in section 3(1);

(b) the alleged offender;

(c) the investigating officer; and

(d) the persons who are required to execute the order as contemplated in section 5.

10. The result of the HJV tests performed on the body specimens of an alleged offender in terms of this Act may be communicated only to-

(a) the victim or the interested person referred to in section 3(1); and

(b) the alleged offender.

11. Any person who, with malicious intent-

(a) makes an application; or

(b) discloses the result of an HlV test in contravention of section 10, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding six months.

12. (1) The Minis ter may make regulations regarding-(a) any form required to be prescribed in terms of this Act.

(b) any matter required to be prescribed in terms of this Act; and

(c) any other matter the Minister deems to be necessary or expedient to achieve the objects of this Act.

(2) (a) Any regulation envisaged in subsection (1) must be tabed in Parliament

before publication in the Gazeffe.

(b) Any regulation envisaged in section 7 must be made in consultation with the Cabinet member responsible for safety and security.

13. This Act is called the Compulsory HIV Testing of Alleged Sexual Offenders Act.

2002, and comes in'~o operation on a date fixed by the President by proclamation in the Gaze~t~.