WORKING DOCUMENT: 10/02/04

PC_Draft(SO)BB

PLEASE NOTE:

Clauses 4, 17 and 18 dealing with compelled rape and acts of sexual penetration and violation with children still require further attention and possibly some further guidance by the Committee.

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. of ) (The English text is the official text of the Bill)

---------------------------------

 

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B - 2003]

________________________________________________________________________________________________________________________________________

WORKING DOCUMENT:

10/02/04

PC_Draft(SO)AA

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 amend the law relating to certain sexual offences; to provide for the amendment and repeal of certain laws; and to provide for matters connected therewith.

PREAMBLE

WHEREAS the Bill of Rights in the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 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 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 towards the eradication of violence against women and children;

WHEREAS there is a high incidence 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 are particularly vulnerable to sexual offences including prostitution;

AND WHEREAS the South African common law and statutory law fail to deal effectively and in a non-discriminatory manner with activities associated with sexual offences, thereby failing to provide adequate protection against sexual exploitation to complainants of such activities;

IT IS THE PURPOSE of this Act 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 fortify the state's commitment to eradicate the pandemic of sexual offences committed in the Republic or elsewhere by its citizens.

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

 

 

 

 

INDEX

PART 1

DEFINITIONS AND OBJECTS

1 Definitions

2 Objects

PART 2

OFFENCES

3 Rape

4 Compelled rape

5 Criminal exposure of another to HIV

6 Criminal exposure of another to sexually transmissible infection other than HIV

7 Sexual Assault

8 Compelled Sexual Assault

9 Exposure or display of pornography

10 Exposure or display of a sexual act to a person over 18

11 Incest

12 Bestiality

13 (Sexual) Violation of a corpse

PART 3

OFFENCES AGAINST CHILDREN

14 Engaging in an act of sexual penetration in the presence of a child

15 Engaging in an act of sexual violation in the presence of a child

16 Exposure or display of a sexual act to a child

17 Acts of sexual penetration with certain children

18 Acts of sexual violation with certain children

19 Grooming of a child to commit a sexual offence

20 Sexual exploitation of a child

21 Abuse of position of authority in relation to child

PART 4

OFFENCES AGAINST MENTALLY DISABLED PERSON

22 Engaging in an act of sexual penetration in the presence of a person with a mental disability

23 Engaging in an act of sexual violation in the presence of a person with a mental disability

24 Exposure or display of a sexual act to a person with a mental disability

25 Sexual exploitation of a mentally disabled person

PART 5

TRAFFICKING

26 Trafficking of a child

27 Trafficking of an adult

 

 

 

PART 6

NATIONAL REGISTER FOR THE PROTECTION OF CHILDREN AGAINST SEXUAL OFFENDERS

28 Establishment of National Register for the Protection of Children against Sexual Offenders

29 Objects of Register

30 Contents of Register

31 Persons whose names must be included in Register

32 Removal of name/particulars from Register

33 Prohibition on employment of certain persons who have been convicted of sexual offences against children and criminal sanction

34 Persons entitled to apply for certificate in respect of information recorded in Register

35 Confidentiality and disclosure of information and criminal sanction

36 Regulations pertaining to Register

37 Interpretation

PART 7

GENERAL PROVISIONS

38 Evidence of previous consistent statements and delay in reporting

39 Extra-territorial jurisdiction

40 National policy framework

41 Establishment of Inter-sectoral Committee

42 Meetings of Committee

43 Responsibilities, functions and duties of Committee

44 National Instructions and Directives

45 Regulations

46 Repeal and amendment of laws and transitional provisions

47 Short title and commencement

PART 1

DEFINITIONS AND OBJECTS

Definitions and interpretation objects of Act

1. (1) In this Act, unless the context indicates otherwise3/4

"AIDS" means the Acquired Immune Deficiency Syndrome;

"adult" means a person of 18 years and older;

"an act which causes penetration" means an act contemplated in sections 2, 3 and 4;

"child" means a person below the age of 18 years;

"complainant" means the alleged victim of a sexual offence;

"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;

"genital organs" include the whole or part of male and female genital organs and

further include surgically constructed or reconstructed genital organs;

"HIV" means the Human Immuno-deficiency Virus;

"indecent act sexual violation" means any act which causes-

(a) direct or indirect contact between the anus or genital organs of one person or, in the case of a female, her breasts and any part of the body of another person or any object, including any part of the body of an animal;

(b) direct or indirect contact between the mouth of one person and the anus or genital organs of another person or any object resembling the anus or genital organs or female breasts, including the anus or genital organs of an animal; or

(bc) exposure or display of the genital organs of one person to another person; or

(c) exposure or display of any pornographic material to any person against his or her will or to a child,

but does not include an act which causes of sexual penetration;

"mentally impaired disabled person" means a person affected by any mental impairment irrespective of its cause, whether temporary or permanent, and for purposes of sections 2, 3, 4, 6, 7 and 8 means a person affected by such mental impairment 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 an indecent act of sexual violation or an act which causes of sexual penetration;

(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;

"sexual act" means an act of sexual penetration or an act of sexual violation;

"sexual offence" means any offence in terms of this Act, excluding Schedule 2, and includes any common law sexual offence;

"sexual penetration" means any act which causes penetration to any extent whatsoever by -

(a) the genital organs of one person into or beyond the anus, mouth or genital organs of another person; or

(b) any object, including any part of the body of an animal, or part of the body of one person into or beyond the anus or genital organs of another person in a manner which simulates sexual intercourse but does not include an act which is consistent with sound medical practices which is carried out for proper medical purposes.

"trafficking" means the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic of South Africa, for use in sexual acts, including sexual exploitation or pornography of a person;

"this Act" includes the regulations made under section 25.

(2) The provisions of Schedule 1 of this Act should at all times be taken into consideration in the application of the provisions of this Act.

Objects

2. The objects of this Act are to3/4

(a) consolidate existing statutory and common law sexual offences, other than adult prostitution into one comprehensive enactment;

(b) introduce new offences aimed at enhancing the protection of sexual integrity and autonomy, in particular3/4

(i) a gender-neutral definition of the offence of rape aimed at punishing all instances of unlawful sexual penetration;

(ii) offences relating to dangerous HIV-related behaviour;

(iii) offences relating to sexual violence or sexual misconduct committed in respect of children or mentally disabled persons; and

(iv) offences relating to trafficking for sexual purposes of children and adults;

(c) institute measures aimed at protecting children against identifiable repeat offenders;

(d) make provision for improvement of the state's response to sexual violence through the establishment of a national integrated, inter-sectoral policy framework and directives which are subject to Parliamentary oversight; and

(e) to provide for accountability measures aimed at ensuring that the relevant organs of state give full effect to the provisions of this Act.

 

PART 2

OFFENCES

Rape

2. (1) A person who unlawfully and intentionally commits an act which causes penetration to any extent whatsoever by the genital organs of that person into or beyond the anus or genital organs of another person, or any act which causes penetration to any extent whatsoever by the genital organs of another person into or beyond the anus or genital organs of the person committing the act, is guilty of the offence of rape.

(2) An act which causes penetration is prima facie unlawful if it is committed3/4

(a) in any coercive circumstance;

(b) under false pretences or by fraudulent means; or

(c) in respect of a person who is incapable in law of appreciating the nature of an act which causes penetration.

(3) Coercive circumstances, referred to in subsection (2)(a), include any circumstances where there is3/4

(a) a use of force against the complainant or another person or against the property of the complainant or that of any other person;

(b) a threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or

(c) an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.

(4) False pretences or fraudulent means, referred to in subsection (2)(b), are circumstances where a person3/4

(a) in respect of whom an act which causes penetration is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person;

(b) in respect of whom an act which causes penetration is being committed, is led to believe that such an act is something other than that act; or

(c) intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by a life-threatening sexually transmissible infection in circumstances in which there is a significant risk of transmission of such infection to that person.

(5) The circumstances in which a person is incapable in law of appreciating the nature of an act which causes penetration referred to in subsection (2)(c) include circumstances where such person is, at the time of the commission of such act3/4

(a) asleep;

(b) unconscious;

(c) in an altered state of consciousness;

(d) under the influence of any medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgement is adversely affected;

(e) a mentally impaired person; or

(f) below the age of 12 years.

(6) A marital or other relationship, previous or existing, shall not be a defence to a charge of rape.

(7) The common law relating to3/4

(a) the irrebuttable presumption that a female person under the age of 12 years is incapable of consenting to sexual intercourse; and

(b) the offence of rape, except where the offence has been committed prior to the commencement of this Act,

is repealed.

(8) Subject to the provisions of this Act, any reference to "rape" in any law must be construed as a reference to the offence of rape under this section, unless it is a reference to rape committed before the commencement of this Act which must be construed to be a reference to the common law offence of rape.

(9) Nothing in this section may be construed as precluding any person charged with the offence of rape from raising any defence at common law to such charge, nor does it adjust the standard of proof required for adducing evidence in rebuttal.

 

Rape

3. (1) Any person ("A") who unlawfully and intentionally commits an act of sexual penetration with another person ("B") without such person's consent, is guilty of the offence of rape.

(2) For the purposes of subsection (1) "consent" means free agreement.

(3) Circumstances in which B does not freely agree to an act of sexual penetration, as contemplated in subsection (1), include, but are not limited to, the following-

(a) where there is a use of force against B or another person ("C") or against the property of B or that of C;

(b) where there is a threat of harm against B or C or against the property of B or that of C;

(c) where there is an abuse of power or authority to the extent that B is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act;

(d) where B is led to believe that he or she is committing such an act with a particular person who is in fact a different person;

(e) where B is led to believe that such an act is something other than that act; or

(f) where B is, at the time of the commission of such act-

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness;

(iv) under the influence of any medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgement is adversely affected;

(v) a mentally disabled person; or

(vi) below the age of 12 years.

(4) A marital or other relationship, previous or existing, shall not be a defence to a charge under subsection (1).

(5) It is a defence to a charge under subsection (1) insofar as it relates to an act of sexual penetration with a mentally disabled person if A reasonably believed that B, who encouraged the act of sexual penetration, was not so disabled and was above the age of 16 years at the time of the alleged commission of the offence.

(5) The common law relating to-

  1. the irrebuttable presumption that a female person under the age of 12 years is incapable of consenting to sexual intercourse; and
  2. the offence of rape, except where the offence has been committed prior to the commencement of this Act,

is repealed.

(6) Subject to the provision of this Act, any reference to "rape" in any law must be construed as a reference to the offence of rape under this section, unless it is a reference to rape committed before the commencement of this Act which must be construed to be a reference to the common law offence of rape.

(7) Nothing in this section may be construed as precluding any person charged with the offence of rape from raising any defence at common law to such charge, nor does it adjust the standard of proof required for adducing evidence in rebuttal.

Compelled rape

4. (1) Any person ("A") who unlawfully and intentionally compels another person ("B") to commit an act of sexual penetration with a third person ("C") without the consent of C, is guilty of the offence of compelled rape.

(2) For the purposes of subsection (1) "consent" means free agreement.

(3) Circumstances in which a person does not freely agree to an act of sexual penetration, as contemplated in subsection (1), include, but are not limited to, the following-

(a) where there is a use of force against C or another person ("D") or against the property of C or D;

(b) where there is a threat of harm against C or D or against the property of C or D;

(c) where there is an abuse of power or authority to the extent that C is inhibited from indicating his or her unwillingness or resistance to the act of sexual penetration, or unwillingness to participate in such an act;

(d) where the act of sexual penetration is committed under false pretences or fraudulent means; or

(d) where C is led to believe that he or she is committing such an act with a particular person who is in fact a different person;

(e) where C is led to believe that such an act is something other than that act;

(f) where C is, at the time of the commission of such act-

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness;

(iv) under the influence of any medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgement is adversely affected;

(v) a mentally disabled person; or

(vi) below the age of 12 years.

Sexual violation

3. A person who unlawfully and intentionally commits an act which causes penetration to any extent whatsoever by any object, including any part of the body of an animal, or part of the body of that person, other than the genital organs of that person, into or beyond the anus or genital organs of another person, is guilty of the offence of sexual violation.

Oral genital sexual violation

4. A person who unlawfully and intentionally commits an act which causes penetration to any extent whatsoever by the genital organs of that person, or the genital organs of an animal, into or beyond the mouth of another person, is guilty of the offence of oral genital sexual violation.

Applicability of provisions on rape to sexual violation and oral genital sexual violation

5. The provisions of-

(a) section 2(2), (3), (4) and (5) relating to the circumstances in which an act which causes penetration is prima facie unlawful;

(b) section 2(6) relating to marital or other relationships; and

(c) section 2(9) relating to defences at common law,

apply with such changes as may be required by the context, to the provisions of sections 3 and 4.

OPTION 1

Criminal exposure of another to HIV

5. (1) A person ("A") who unlawfully and intentionally fails to disclose to another person ("B"), in respect of whom an act contemplated in paragraph (a) of the definition of sexual penetration is being committed, that he or she has HIV or AIDS under circumstances where there is a significant risk of transmission of HIV to B, is guilty of an offence of criminal exposure of another to HIV.

(2) It is a defence to a charge under subsection (1), if B who was exposed to HIV knew that A was infected with HIV or AIDS and gave advance consent to the act with that knowledge.

(3) (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 and may only be instituted if such prosecution will be in the public interest/interests of justice with due regard to the circumstances surrounding the commission of the alleged offence and the personal circumstances of A and B.

(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.

(4) Sentencing?

Option 2

Criminal exposure of another to HIV

5. (1) A person ("A") who unlawfully and intentionally fails to disclose to another person ("B") in respect of whom he or she engages in intimate contact with, that he or she has HIV or AIDS is guilty of an offence of criminal exposure of another to HIV.

(2) "Intimate contact" means contact of a sexual nature that exposes the body of one person to a bodily fluid of another person in a manner that presents a significant risk of HIV transmission.

(3) It is a defence to a charge under subsection (1), if B who was exposed to HIV knew that A was infected with HIV or AIDS and gave advance consent to the act with that knowledge.

(4) (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 and may only be instituted if such prosecution will be in the public interest/interests of justice with due regard to the circumstances surrounding the commission of the alleged offence and the personal circumstances of A and B

(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.

(5) Sentencing

OPTION 1

Criminal exposure of another to sexually transmissible infection other than HIV

6. (1) A person ("A") who unlawfully and intentionally fails to disclose to another person ("B") in respect of whom an act contemplated in paragraph (a) of the definition of sexual penetration is being committed, that he or she is infected with a sexually transmissible infection, other than HIV, in circumstances where there is a significant risk of transmission of such infection to B, is guilty of an offence of criminal exposure of another to a sexually transmissible infection other than HIV.

(2) It is a defence to a charge under subsection (1), if B who was exposed to a sexually transmissible infection knew that A was infected with such infection and gave advance consent to the act with that knowledge.

(3) Sentencing?

Option 2

Criminal exposure of another to sexually transmissible infection other than HIV

6. (1) A person ("A") who knowingly and intentionally fails to disclose to another person ("B") in respect of whom he or she engages in intimate contact with, that he or she is infected with a sexually transmissible infection, other than HIV, is guilty of an offence of criminal exposure of another to a sexually transmissible infection.

(2) "Intimate contact" means contact of a sexual nature that exposes the body of one person to a bodily fluid of another person in a manner that presents a significant risk of transmission of a sexually transmissible infection.

(3) It is a defence to a charge under subsection (1), if B who was exposed to a sexually transmissible infection knew that A was infected with a sexually transmissible infection and gave advance consent to the act with that knowledge.

(5) Sentencing?

Sexual Assault

7. (1) A person ("A") who unlawfully and intentionally sexually violates another person ("B") without the consent of B or threatens or inspires the fear that B will be sexually violated is guilty of the offence of sexual assault.

(2) For the purposes of subsection (1), "consent" means free agreement.

(3) Circumstances in which B does not freely agree to an act of sexual violation, as contemplated in subsection (1), include but are not limited to, the following3/4

(a) where there is a use of force against B or another person ("C") or against the property of B or C;

(b) where there is a threat of harm against the B or C or against the property of B or C;

(c) where there is an abuse of power or authority to the extent that B is inhibited from indicating his or her unwillingness or resistance to the act of sexual violation, or unwillingness to participate in such an act;

(d) where B is led to believe that he or she is committing such an act with a particular person who is in fact a different person;

(e) where B is led to believe that such an act is something other than that act; or

(f) where B is, at the time of the commission of such act3/4

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness;

(iv) under the influence of any medicine, drug, alcohol, or other substance to the extent that the person's consciousness or judgment is adversely affected;

(v) a mentally disabled person; or

(vi) below the age of 12 years.

(3) A marital or other relationship, previous or existing, shall not be a defence to a charge under subsection (1).

(4) It is a defence to a charge under subsection (1) insofar as it relates to an act of sexual violation with a mentally disabled person if A reasonably believed that B, who encouraged the act of sexual violation, was not so disabled and was above the age of 16 years at the time of the alleged commission of the offence.

(5) Sentencing.

 

 

Compelled or induced indecent acts sexual assault

6 8. A person ("A") who unlawfully and intentionally compels, induces or causes another person ("B") without the consent of B to engage in an indecent act of sexual violation with3/4

(a) the person compelling, inducing or causing the act A;

(b) a third person;

(c) that other person B himself or herself; or

(d) an object, including any part of the body of an animal,

in circumstances where that other person3/4

(i) would otherwise not have committed or allowed the indecent act; or

(ii) is incapable in law of appreciating the nature of an indecent act, including the circumstances set out in section 2(5),

is guilty of the offence of having compelled, induced or caused a person to engage in an indecent act of sexual violation and is liable upon conviction to a fine and imprisonment for a period not exceeding five years.

(2) For the purposes of subsection (1), "consent" means free agreement.

(3) Circumstances in which B does not freely agree to an act of sexual violation, as contemplated in subsection (1), include, but are not limited to, the following3/4

(a) where there is a use of force against B or another person ("C") or against the property of B or C;

(b) where there is a threat of harm against B or C or against the property of B or C;

(c) where there is an abuse of power or authority to the extent that B is inhibited from indicating his or her unwillingness or resistance to the act of sexual violation, or unwillingness to participate in such an act;

(d) where B is led to believe that he or she is committing such an act with a particular person who is in fact a different person;

(e) where B is led to believe that such an act is something other than that act; or

(f) where B is, at the time of the commission of such act-

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness;

(iv) under the influence of any medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgement is adversely affected;

(v) a mentally disabled person; or

(vi) below the age of 12 years.

(3) A marital or other relationship, previous or existing, shall not be a defence to a charge under subsection (1).

 

Exposure or display of pornography

9. A person who unlawfully and intentionally exposes or displays any pornography through the use of any image, real, simulated or however created to another person against his or her will or to a child is guilty of an offence of exposing or displaying pornography against the will of a person or to a child and is liable upon conviction to a fine and imprisonment for a period not exceeding XX years.

OPTION

Exposure or display of a sexual act to a person over 18

9. A person ("A") who intentionally, for the purpose of obtaining personal sexual gratification or that of a third person, exposes or displays a sexual act to a person over the age of 18 years ("B"), against his or her will, by3/4

(a) means of pornography through the use of any image, real, simulated or however created; or

(b) causing B to watch A or a third person engaging in a sexual act,

is guilty of the offence of exposing or displaying a sexual act to a person against his or her will and is liable upon conviction to a fine and imprisonment for a period not exceeding XX years.

Extension of common law Incest

13 11. An act which causes penetration as contemplated in sections 2, 3, and 4 applies to the common law offence of incest from the date of commencement of this Act.

(1) A person ("A") who unlawfully and intentionally commits an act of sexual penetration with another person ("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 and is liable upon conviction to a fine or imprisonment for a period not exceeding XX years.

(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).

Option

(2) The common law regulating the prohibited degrees of consanguinity, affinity and adoptive relationship shall, after implementation of this Act, apply to subsection (1).

Bestiality

12. A person who unlawfully and intentionally commits an act which causes penetration to any extent whatsoever by the genital organs of that person into or beyond the anus or genital organs of an animal, is guilty of the offence of bestiality and is liable upon conviction to a fine or to imprisonment for a period not exceeding XX years.

 

(Sexual) Violation of a corpse

13. A person who unlawfully and intentionally commits a sexual act with a human corpse, is guilty of the offence of violation of a corpse and is liable upon conviction to a fine or to imprisonment for a period not exceeding XX years.

PART 3

OFFENCES AGAINST CHILDREN

Engaging in an act of sexual penetration in the presence of a child

14. A person ("A") who intentionally engages in an act of sexual penetration in the presence of a child below the age of 16 years ("B"), for the purpose of obtaining sexual gratification or to sexualise B and knows or believes that B is aware, or intends that B should be aware, that he or she is engaging in it, is guilty of the offence of having engaged in an act of sexual penetration in the presence of a child and is liable upon conviction to a fine or imprisonment for a period not exceeding two years.

 

Acts which cause penetration or indecent acts committed within the view of certain children or certain mentally impaired persons Engaging in an act of sexual violation in the presence of a child

8 15. A person ("A") who intentionally commits engages in an act which causes penetration or an indecent act of sexual violation in with another within the view presence of a child below the age of 16 years ("B"), or a person who is mentally impaired for the purpose of obtaining sexual gratification or to sexualise B and knows or believes that B is aware, or intends that B should be aware, that he or she is engaging in it, is guilty of the offence of having committed such engaged in an act within the view of sexual violation in the presence of a child or a mentally impaired person, as the case may be, and is liable upon conviction to a fine or imprisonment for a period not exceeding two years.

Exposure or display of a sexual act to a child

16. A person ("A") who intentionally, for the purpose of obtaining personal sexual gratification or that of a third person or to sexualise a child ("B"), exposes or displays a sexual act to B by3/4

(a) means of pornography through the use of any image, real, simulated or however created; or

(b) causing B to watch A or a third person engaging in a sexual act,

is guilty of the offence of exposing or displaying a sexual act to a child.

Acts which cause penetration or indecent acts with certain children with their consent

9. (1) A person who commits an act which causes of sexual penetration with a child who is older than 12 years of age, but below the age of 16 years is, despite the consent of that child to the commission of such an act, guilty of the offence of having committed such an act with a child and is liable, upon conviction to a fine or imprisonment for a period not exceeding six years or to both such fine and such imprisonment.

(2) It is a defence to a charge under subsection (1) if3/4

(a) it is proved on a balance of probabilities that such child or the person in whose care such child had been, deceived the accused into believing that such child was over the age of 16 years at the time of the alleged commission of the offence; and

(b) the accused reasonably believed that the child was over the age of 16 years.

(3) The provisions of subsection (2) do not apply if3/4

(a) the accused is related to such child within the prohibited incest degrees of blood or affinity; or

(b) such child lacked the intellectual development to appreciate the nature of an act of sexual penetration.

(4) Any person who commits an indecent act with a child below the age of 16 years is, despite the consent of that child to the commission of such an act, guilty of the offence of having committed an indecent act with a child and is liable upon conviction to a fine or imprisonment for a period not exceeding four years or to both such fine and such imprisonment.

(5) It is a defence to a charge under subsection (4) if3/4

(a) the accused was a person below the age of 16 years at the time of the alleged commission of the offence; and

(b) the age of the accused did not exceed the age of such child by more than three years at the time of the alleged commission of the offence; or

(c) it is proved on a balance of probabilities that such child or the person in whose care such child had been, deceived the accused into believing that such child was over the age of 16 years at the time of the alleged commission of the offence, and the accused reasonably believed that the child was over the age of 16 years.

(6) The provisions of subsection (5) do not apply if3/4

(a) the accused is related to such child within the prohibited incest degrees of blood or affinity;

(b) such child lacked the intellectual development to appreciate the nature of an indecent act; or

(c) such child was below the age of 12 years at the time of the alleged commission of the offence.

(7) A person may not be charged under this section if a marriage existed between that person and a child referred to in this section, unless the child concerned was below the age of 12 years at the time when that offence in terms of this section was allegedly committed.

Option 1

Acts of sexual penetration with certain children

9 17 (1) A person ("A") who commits an act which causes of sexual penetration with a child ("B") who is older than 12 years of age, but below the age of 16 years is, despite the consent of that child B to the commission of such an act, guilty of the offence of having committed such an act with a child and is liable, upon conviction to a fine or imprisonment for a period not exceeding six years of to both such fine and such imprisonment.

(2) It is a defence to a charge under subsection (1) if-

(a) it is proved on a balance of probabilities that such child or the person in whose care such child had been, B deceived the accused A into believing that such child he or she was over the age of 16 years or older at the time of the alleged commission of the offence; and

(b) the accused A reasonably believed that the child B was over the age of 16 years or older.

(3) The provisions of subsection (2) do not apply if-

(a) the accused A is related to such child B within the prohibited incest degrees of blood, or affinity or an adoptive relationship; or

(b) A is in a position of authority in relation to B; or

(b c) such child B lacked the intellectual development to appreciate the nature of an act of sexual penetration.

(4) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the Director of Public Prosecutions concerned.

(b) Both A and B must, in the event that a Director of Public Prosecutions authorises the institution of a prosecution as contemplated in paragraph (a), be charged with contravening subsection (1) if-

(i) B was older than 12 years; and

(ii) A was below the age of 16,

at the time of the alleged commission of the offence.

(c) The 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.

(d) Diversion may be considered by the Director of Public Prosecutions in terms of the directives issued by the National Director of Public Prosecutions as contemplated in terms of section XX.

Acts of sexual violation with children younger than 16

18. (4 1) Any person ("A") who commits an indecent act of sexual violation with a child ("B") who is older than 12 years of age, but below the age of 16 years is, despite the consent of that child B to the commission of such an act, guilty of the offence of having committed an indecent act of sexual violation with a child and is liable upon conviction to a fine or imprisonment for a period not exceeding four years or to both such fine and such imprisonment.

(5 2) It is a defence to a charge under subsection (4 1) if-

(a) the accused A was a person below the age of 16 years at the time of the alleged commission of the offence; and

(b) the age of the accused A did not exceed the age of such child B by more than three two years at the time of the alleged commission of the offence; or

(c) it is it is proved on a balance of probabilities that such child or the person in whose care such child had been, B deceived the accused A into believing that such child he or she was over the age of 16 years at the time of the alleged commission of the offence, and the accused A reasonably believed that the child B was over the age of 16 years.

(6 3) The provisions of subsection (5 2) do not apply if-

(a) the accused A is related to such child B within the prohibited incest degrees of blood, or affinity or an adoptive relationship;

(b) A is in a position of authority in relation to B; or

(b c) such child B lacked the intellectual development to appreciate the nature of an indecent act.

(c d) such child B was below the age of 12 years at the time of the alleged commission of the offence.

(4) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the Director of Public Prosecutions concerned.

(b) Both A and B must, in the event that a Director of Public Prosecutions authorises the institution of a prosecution as contemplated in paragraph (a), be charged with contravening subsection (1) if-

(i) B was older than 12 years;

(ii) A was below the age of 16,

at the time of the alleged commission of the offence.

(c) The 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.

(8 5) A person may not be charged under this section if a marriage existed between that person and a child referred to in this section, unless the child concerned was below the age of 12 years at the time when that offence in terms of this section was allegedly committed.

Diversion

Option 2

Acts of sexual penetration with children younger than 18

9 17. (1) A person ("A") who commits an act which causes of sexual penetration with a child ("B") who is older than 12 years of age, but below the age of 16 18 years is, despite the consent of that child B to the commission of such an act, guilty of the offence of having committed such an act with a child and is liable, upon conviction to a fine or imprisonment for a period not exceeding six years of to both such fine and such imprisonment.

(2) It is a defence to a charge under subsection (1) if-

(a) it is proved on a balance of probabilities that such child or the person in whose care such child had been, B deceived the accused A into believing that such child he or she was over the age of 16 18 years at the time of the alleged commission of the offence; and

(b) the accused A reasonably believed that the child B was over the age of 16 18 years or older; or

(c) immediately before the commencement of this Act, a sexual relationship existed between A and B and both of them are 16 years or older.

(3) The provisions of subsection (2) do not apply if-

(a) the accused A is related to such child B within the prohibited incest degrees of blood, or affinity or an adoptive relationship; or

(b) A is in a position of authority in relation to B; or

(b c) such child B lacked the intellectual development to appreciate the nature of an act of sexual penetration.

(3) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the Director of Public Prosecutions concerned.

(b) Both A and B must, in the event that a Director of Public Prosecutions authorises the institution of a prosecution as contemplated in paragraph (a), be charged with contravening subsection (1) if-

(i) B was older than 12 years;

(ii) A was below the age of 18,

at the time of the alleged commission of the offence.

(c) A 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.

Diversion

Acts of sexual violation with children younger than 18

18 (4 1) Any person ("A") who commits an indecent act of sexual violation with a child ("B") who is older than 12 years of age but below the age of 16 18 years is, despite the consent of that child B to the commission of such an act, guilty of the offence of having committed an indecent act of sexual violation with a child and is liable upon conviction to a fine or imprisonment for a period not exceeding four years or to both such fine and such imprisonment.

(5 2) It is a defence to a charge under subsection (4 1) if-

(a) the accused A was a person below the age of 16 18 years at the time of the alleged commission of the offence; and

(b) the age of the accused A did not exceed the age of such child B by more than three two years at the time of the alleged commission of the offence; or

(c) it is proved on a balance of probabilities that such child or the person in whose care such child had been, B deceived the accused A into believing that such child he or she was over the age of 16 18 years at the time of the alleged commission of the offence, and the accused A reasonably believed that the child B was over the age of 16 18 years.

(6 3) The provisions of subsection (5 2) do not apply if-

(a) the accused A is related to such child B within the prohibited incest degrees of blood, or affinity or an adoptive relationship;

(b) such child B lacked the intellectual development to appreciate the nature of an indecent act; or

(c) such child B was below the age of 12 years at the time of the alleged commission of the offence.

(4) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the Director of Public Prosecutions concerned.

(b) Both A and B must, in the event that a Director of Public Prosecutions authorises the institution of a prosecution as contemplated in paragraph (a), be charged with contravening subsection (1) or (4) if-

(i) B was older than 12 years;

(ii) A was below the age of 18; and

(iii) the age of A did not exceed the age of B by more than two years,

at the time of the alleged commission of the offence.

(c) A 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.

Diversion

Promotion of sexual offence with child Grooming of a child to commit a sexual offence

10. 19 A person ("A") who-

(a) manufactures or distributes an article that promotes or is intended to promote a sexual offence with a child ("B"); or

(b) facilitates the manufacture or distribution of an article that promotes or is intended to promote a sexual offence with B;

(b c) who supplies or displays to a child B an article which is intended to be used in the performance of a sexual act with the intention to encourage or enable that child B to perform such sexual act,

(d) 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 offence, during or after the meeting; or

(e) 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 another person will commit a sexual offence against B during or after such meeting,

is guilty of the offence of promoting a sexual offence with grooming a child to commit a sexual offence and liable upon conviction to a fine or imprisonment for a period not exceeding six years or to both such fine and such imprisonment.

Child prostitution Sexual exploitation of a child

11. 20 (1) A person ("A") who, in relation to a child ("B"), for financial or other reward, favour or compensation to such child ("B") or to any other person ("C"), intentionally3/4

(a) commits an indecent act or an act which causes penetration a sexual act with such child B;

(b) invites, persuades or induces such child B to allow him or her A or any other person C to commit an indecent act or an act which causes penetration a sexual act with that child B;

(c) makes available, offers or engages such child B for purposes of the commission of indecent acts or acts which cause penetration a sexual act with that child B by any person C;

(d) supplies, recruits, transports, transfers, harbours or receives such child, within or across the borders of the Republic of South Africa, for purposes of the commission of indecent acts or acts which cause penetration with that child by any person;

(e d) allows or knowingly permits the commission of indecent acts or acts which cause penetration a sexual act by any person C with such child 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 that child B;

(f e) owns, leases, rents, manages, occupies or has control of any movable or immovable property used for purposes of the commission of indecent acts or acts which cause penetration a sexual act with such child B by any person C;

(g f) detains such child B, whether under threat, coercion, deception, abuse of power or force for purposes of the commission of indecent acts or acts which cause penetration a sexual act with such child B by any person C; or

(h g) participates in, is involved in, promotes, encourages or facilitates the commission of indecent acts or acts which cause penetration a sexual act with such child B by any person C,

is, in addition to any other offence of which he or she may be convicted, guilty of an offence of being involved in the sexual exploitation of a child prostitution and is liable upon conviction to a fine or imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.

(2) A person who has knowledge of the sexual exploitation of a child by any person and in any circumstances as contemplated in subsection (1) and who fails to report such knowledge within a reasonable time of gaining information of such occurrence, fails to report such occurrence at a police station, shall be guilty of an offence .

(2 3) A person who intentionally receives financial or other reward, favour or compensation from the commission of indecent acts or acts of sexual penetration a sexual act with a child by another person is guilty of an offence of benefiting from the sexual exploitation of a child prostitution and is liable upon conviction to a fine or imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.

(3 4) A person who intentionally lives wholly or in part on rewards, favours or compensation for the commission of indecent acts or acts of sexual penetration a sexual act with a child by another person is guilty of an offence of living from the earnings of the sexual exploitation of a child prostitution and is liable upon conviction to a fine or to imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.

(4 5) A person, including a juristic person, who3/4

(a) makes or organises any travel arrangements for or on behalf of any other person, whether that other person is resident within or outside the borders of the Republic of South Africa, with the intention of facilitating the commission of any sexual offence against a child, irrespective of whether that offence is committed; or

(b) prints or publishes, in any manner, any information that is intended to promote or facilitate conduct that would constitute a sexual offence against a child,

is guilty of an offence of promoting child sex tours and is liable upon conviction to a fine or imprisonment for a period not exceeding 20 years.

(5 6) A person may not be convicted of an offence in terms of subsections (2 3) and (3 4) if that person is3/4

(a) a child; and

(b) not a person contemplated in subsection (1).

Abuse of position of authority in relation to a child

21. (1) A person ("A") who unlawfully and intentionally commits a sexual act with a child ("B"), who is older than 12 years, but below the age of 16 years, under circumstances where A is in a position of authority in relation to B, is, despite the consent of B to the commission of such an act, guilty of an offence and liable upon conviction to fine and imprisonment for a period of XX years.

(2) For purposes of this section A is in a position of authority in relation to B if-

(a) A is a foster parent of B;

(b) A 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, a club, association or business providing services to or for children;

(c) A works with children at 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 or who is involved in the implementation of a cluster foster scheme, either as an employee, volunteer or in any other capacity;

(d) A works with children who are accommodated and cared for in a hospital or an independent clinic;

(e) A works for any unit of the South African Police Service tasked with child protection; or

(f) A works for the Department of Correctional Services and is charged with exercising control over children who are detained in a correctional facility.

(3) It is a defence to charge under subsection (1) if-

(a) it is proved on a balance of probabilities that B deceived A into believing that he or she was over the age of 16 years at the time of alleged commission of the offence; and

(b) A reasonably believed that B was over the age of 16 years.

PART 4

OFFENCES AGAINST MENTALLY DISABLED PERSONS

Engaging in an act of sexual penetration in the presence of a person with a mental disability

8 22. A person ("A") who intentionally commits engages in an act which causes penetration or an indecent act of sexual penetration in with another within the view presence of a child below the age of 16 years or a person who is mentally impaired disabled ("B"), for the purpose of obtaining sexual gratification or to sexualise B and knows or believes that B is aware, or intends that B should be aware, that he or she is engaging in it, is guilty of the offence of having committed such engaged in an act within the view of sexual penetration in the presence of a child or a mentally impaired disabled person , as the case may be, and is liable upon conviction to a fine or imprisonment for a period not exceeding two years.

Engaging in an act of sexual violation in the presence of a person with a mental disability

8 23. A person ("A") who intentionally commits engages in an act which causes penetration or an indecent act of sexual violation in with another within the view presence of a child below the age of 16 years or a person who is mentally impaired disabled ("B"), for the purpose of obtaining sexual gratification or to sexualise B and knows or believes that B is aware, or intends that B should be aware, that he or she is engaging in it, is guilty of the offence of having committed such engaged in an act within the view of sexual violation in the presence of a child or a mentally impaired disabled person , as the case may be, and is liable upon conviction to a fine or imprisonment for a period not exceeding two years.

Exposure or display of a sexual act to a person with a mental disability

24. A person ("A") who intentionally, for the purpose of obtaining personal sexual gratification or that of a third person or to sexualise a person with a mental disability ("B"), exposes or displays a sexual act to B by3/4

(a) means of pornography through the use of any image, real, simulated or however created; or

(b) causing B to watch A or a third person engaging in a sexual act,

is guilty of the offence of exposing or displaying a sexual act to a person with a mental disability

Defences to indecent acts or acts which cause penetration with certain mentally impaired persons

7. It is a defence to a charge of an indecent act or an act which causes penetration with a person who is mentally impaired if3/4

(a) the mentally impaired person was over the age of 18 years at the time of the alleged commission of the offence and such mentally impaired person induced the commission of the act to which the charge relates; and

(b) the accused reasonably believed that the person who induced the commission of the act to which the charge relates was not so impaired and was above the age of 18 years at the time of the alleged commission of the offence in question.

Prostitution of mentally impaired persons Sexual exploitation of a mentally disabled person

12. 25 (1) A person ("A") who, in relation to a mentally impaired disabled person ("B"), for financial or other reward, favour or compensation to such mentally impaired person B or to any other person ("C"), intentionally3/4

(a) commits an indecent act or an act which causes penetration a sexual act with such mentally impaired person B;

(b) invites, persuades or induces such mentally impaired person B to allow him or her A or any other person C to commit an indecent act or an act which causes penetration a sexual act with that mentally impaired person B;

(c) makes available, offers or engages such mentally impaired person B for purposes of the commission of indecent acts or acts which cause penetration a sexual act with that mentally impaired person B by any person C;

(d) supplies, recruits, transports, transfers, harbours or receives such mentally impaired person, within or across the borders of the Republic of South Africa, for purposes of the commission of indecent acts or acts which cause penetration with that mentally impaired person by any person;

(e d) allows or knowingly permits the commission of indecent acts or acts which cause penetration a sexual act by any person C with such mentally impaired person B;

(f e) owns, leases, rents, manages, occupies or has control of any movable or immovable property used for purposes of the commission of indecent acts or acts which cause penetration a sexual act with such mentally impaired person B by any person C;

(g f) detains such mentally impaired person B, whether under threat, coercion, deception, abuse of power or force for purposes of the commission of indecent acts or acts which cause penetration a sexual act with such mentally impaired person B by any person C; or

(h g) participates in, is involved in, promotes, encourages or facilitates the commission of indecent acts or acts which cause penetration a sexual act with such mentally impaired person B by any person C,

is, in addition to any other offence of which he or she may be convicted, guilty of an offence of being involved in the sexual exploitation prostitution of a mentally impaired disabled person and is liable upon conviction to a fine or imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.

(2) A person who has knowledge of the sexual exploitation of a mentally disabled person by any person and in any circumstances as contemplated in subsection (1) and who fails to report such knowledge within a reasonable time of gaining information of such occurrence, fails to report such occurrence at a police station, shall be guilty of an offence.

(2 3) A person who intentionally receives financial or other reward, favour or compensation from the commission of indecent acts or acts of sexual penetration a sexual act with a mentally impaired disabled person by another person is guilty of an offence of benefiting from the sexual exploitation prostitution of a mentally impaired disabled person and is liable upon conviction to a fine or imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.

(3 4) A person who intentionally lives wholly or in part on rewards, favours or compensation for the commission of indecent acts or acts of sexual penetration a sexual act with a mentally impaired disabled person by another person is guilty of an offence of living from the earnings of the prostitution sexual exploitation of a mentally impaired disabled person and is liable upon conviction to a fine or imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.

(4 5) Any person, including a juristic person, who3/4

(a) makes or organises any travel arrangements for or on behalf of any other person, whether that other person is resident within or outside the borders of the Republic of South Africa, with the intention of facilitating the commission of any sexual offence against a mentally impaired disabled person, irrespective of whether that offence is committed; or

(b) prints or publishes, in any manner, any information that is intended to promote or facilitate conduct that would constitute a sexual offence against a mentally impaired disabled person,

is guilty of an offence and is liable upon conviction to a fine or imprisonment for a period not exceeding 20 years.

(5 6) A person may not be convicted of an offence in terms of subsections (2 3) and (3 4) if that person is-

(a) a child; and

(b) not a person contemplated in subsection (1).

PART 5

TRAFFICKING

Trafficking of a child for sexual exploitation or pornography

26. (1) A person who trafficks a child for the purpose of sexual exploitation or pornography commits the offence of trafficking of a child.

(2) Consent of a child to being trafficked for purposes of sexual exploitation or pornography shall be irrelevant.

(3) A person who conspires, attempts or assists another person engaged in trafficking of a child for the purpose of sexual exploitation or pornography, shall be guilty of an offence.

(4) A person who organises or directs the trafficking of a child for the purpose of sexual exploitation or pornography, shall be guilty of an offence.

(5) Age of consent to sex, legal age of marriage, or other discretionary age is not a defence to a charge of trafficking of a child for the purpose of sexual exploitation or pornography.

(6) A child who has been trafficked is not criminally liable for any migration-related offence, prostitution or any other criminal offence that was a direct result from being trafficked.

(7) (a) A commercial carrier commits an offence if the carrier brings a child into a receiving country and, upon entry into the receiving country, the child does not have the travel documents required for lawful entry into that country.

(b) A commercial carrier is not guilty of an offence under paragraph (a) if3/4

(i) the carrier had reasonable grounds to believe that the documents that the child has are the travel documents required for lawful entry of that child into the receiving country; or

(ii) the child possessed the travel documents required for lawful entry into the receiving country when that child boarded, or last boarded, the means of transport to travel to the receiving country; or

(iii) entry into the receiving country occurred only because of illness of or injury to a child on board, stress of weather or other circumstances beyond the control of the commercial carrier.

(c) A commercial carrier that is guilty of an offence under this section is liable to pay the costs of the child's detention in, and removal from, the receiving country.

 

Trafficking of an adult for sexual exploitation or pornography

27. (1) A person who trafficks an adult for the purpose of sexual exploitation or pornography by one or more of the following means-

(a) threat;

(b) use of force or other forms of coercion;

(c) abduction;

(d) fraud;

(e) deception;

(f) abuse of power or of a position of vulnerability; or

(g) the giving or receiving of payments of benefits to achieve the consent of person having control over another person,

commits the offence of trafficking of an adult.

(2) Consent of an adult to being trafficked for purposes of sexual exploitation or pornography shall be irrelevant.

(3) A person who conspires, attempts or assists another person engaged in trafficking of an adult for the purpose of sexual exploitation or pornography, shall be guilty of an offence.

(4) A person who organises or directs the trafficking of an adult for the purpose of sexual exploitation or pornography, shall be guilty of an offence.

(5) Age of consent to sex, legal age of marriage, or other discretionary age is not a defence to a charge of trafficking of an adult for the purpose of sexual exploitation or pornography.

(6) An adult who has been trafficked is not criminally liable for any migration-related offence, prostitution or any other criminal offence that was a direct result from being trafficked.

(7) (a) A commercial carrier commits an offence if the carrier brings an adult into a receiving country and, upon entry into the receiving country, the adult does not have the travel documents required for lawful entry into that country.

(b) A commercial carrier is not guilty of an offence under subparagraph (a) if3/4

(i) the carrier had reasonable grounds to believe that the documents that the adult has are the travel documents required for lawful entry of that adult into the receiving country; or

(ii) the adult possessed the travel documents required for lawful entry into the receiving country when that adult boarded, or last boarded, the means of transport to travel to the receiving country; or

(iii) entry into the receiving country occurred only because of illness of or injury to an adult on board, stress of weather or other circumstances beyond the control of the commercial carrier.

(c) A commercial carrier that is guilty of an offence under this section is liable to pay the costs of the adult's detention in, and removal from, the receiving country.

 

PART 6

NATIONAL REGISTER FOR THE PROTECTION OF CHILDREN AGAINST SEXUAL OFFENDERS

 

Establishment of National Register for the Protection of Children against Sexual Offenders

28. (1) The Cabinet member responsible safety and security / the administration of justice must, within six months after the commencement of this Part, and, in accordance with the provisions and the regulations made under this Part, cause a National Register for the Protection of Children against Sexual Offenders, containing particulars of persons who are convicted of sexual offences (against children??), to be established and maintained.

(2) The Register must be established and thereafter maintained in the Office of the National Director of Public Prosecutions referred to in section 5 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), under the supervision and control of a Deputy National Director or an Investigating Director referred to in section 5(2)(b) or 5(2)(c) of the said Act, respectively, assigned by the National Director of Public Prosecutions, who, for purposes of this Act, shall be known as the Registrar of the National Register for the Protection of Children against Sexual Offenders.

 

Objects of Register

29. The objects of the Register are to -

(a) have a record of persons who-

(i) are found by a court of law to be unsuitable to work with children as a result of a conviction for a sexual offence (against a child??); or

(ii) at the commencement of this Part, are serving a sentence of imprisonment (exceeding six months/36months???)(without the option of fine??) as the result of a conviction for a sexual offence against a child; and

(b) use the information contained in the Register solely for purposes of providing, on application, the persons (A) referred to in section 34 with a certificate on whether any particular person (A or B) mentioned in the application who intends working with children, has a conviction for a sexual offence (against a child???).

Contents of Register

30. The Register must -

(a) be established and maintained in the prescribed manner and format; and

(b) contain the following particulars of persons whose names are to be included in the Register as contemplated in section 31:

(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;

(iii) the identification number of the person;

(iv) the age of the person;

(v) 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 case number; and

(vi) any other particulars as may be prescribed by regulation.

Persons whose names must be included in Register

31. (1) (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 (Act No. 51 of 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 a finding (in the prescribed manner???) whether or not the person in question is unsuitable to work with children (and must record the reasons for such finding on the record of the proceedings????).

(b) If the court makes a finding that the person in question is unsuitable to work with children, it must, in addition to any sentence imposed, make an order that the particulars of the person be included in the Register -

(i) for the applicable period contemplated in section 32(1) or for another period as contemplated in section 32(2);

(ii) in the case of a person contemplated in paragraph (a)(ii), for an indefinite period / until such time as such person has -

(aa) recovered from the mental illness or mental defect in question and is released in terms of the Mental Health Care Act, 2002 from any restrictions imposed on him or her; and

(bb) a court has, in terms of section 32(5)(b) or (c), ordered that the particulars of the person be removed from the Register.

(c) When making an order contemplated in paragraph (b), the court must explain the contents and implications of such an order to the person in question.

(2) (a) If the person in question as contemplated subsection (1) is an enterprise, the court may, if satisfied on evidence before it that the enterprise or any member thereof is unsuitable to work with children, after recording the reasons for such finding on the record of proceedings, also make an order that -

(i) the particulars of that enterprise; and

(ii) the particulars of any partner, manager, director or other person, who wholly or partly exercises or may exercise control over that enterprise and who was involved in the offence concerned or who knows or ought reasonably to have known or suspected that the enterprise committed the offence concerned,

be included in the Register.

(b) If the person against whom an order contemplated in paragraph (a) is not present in court when the order is made, he or she must be informed, in the prescribed manner and period, by the registrar or clerk of the court of the order, its contents and implications.

(3) Where a court has made an order under subsection (1)(b) or subsection (2), the registrar or clerk of the court must forthwith forward the order to the Registrar, together with all the particulars referred to in section 30 of the person in question, and the Registrar must immediately 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,

endorse the Register accordingly.

(4) (a) The Commissioner of Correctional Services must, in the prescribed manner and within six months after the commencement of this Part, forward to the Registrar the particulars referred to in section 30 of every prisoner, who, at the commencement of this Part, is serving a sentence of imprisonment (exceeding six months/36 months???)(without the option of fine??) 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 who have been forwarded to the Registrar of the implications thereof.

 

 

Removal of name/particulars from Register

32. (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) exceeding three years may not be removed from the Register;

(ii) of at least six months but not exceeding three years may be removed from the Register after a period of ten years has lapsed after that person has been released from prison/ since the particulars of that person were included in the Register;

(iii) of six months or less may be removed from the Register after a period of seven years has lapsed after that person has been released from prison/ since the particulars of that person were included in the Register;

(b) to any other form of punishment may 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) (a) A court that has convicted a person of a sexual offence against a child may, when making an order contemplated in section 31(1)(b) or (4)(2)(a) and if compelling and substantial reasons exist, deviate from the periods for which a person's particulars must remain in the Register contemplated in subsection (1)(a)(ii) and (iii) and (b) by no more than two years more or two years less than the said periods referred to in the subsection (1)(a)(ii) and (iii) and (b).

(b) The reasons for a deviation contemplated in paragraph (a) must be recorded on the record of the proceedings.

(3) A person falling into the categories contemplated in subsection (1)(a)(ii) and (iii) and (b) or a person contemplated in section 31(1)(a)(ii) may apply to a judge in chambers in a High Court having jurisdiction to have is or her particulars removed from the Register (after at least one half of the period for which his or her name must remain in the Register has lapsed????).

(4) The application referred to in subsection (3) must be in the prescribed format and contain -

(a) the reasons for the application;

(b) a report by a psychologist on whether the person concerned, in his or her opinion, is suitable to work with children;

(c) a report by the Registrar containing -

(i) where possible and applicable, a history of the person from the head of the prison where the person served his or her sentence or from any other prescribed institution or person;

(ii) a report from two medical practitioners, one of whom must be a psychiatrist; and

(iii) recommendations on whether the application should be granted and the basis for the recommendation.

(5) On considering the application, the judge in chambers -

(a) must establish whether a similar application is pending or has been considered within a period of 12 months, in which case the application must be dismissed; and

(b) may call for further information and assistance from the applicant, the psychologist, Registrar or medical practitioner or any other person.

(6) On considering the application, the judge in chambers may order that the particulars of the applicant -

(a) remain in the Register;

(b) be removed from the Register unconditionally; or

(c) be removed from the Register with conditions as may be deemed necessary.

(7) 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.

Prohibition on employment of certain persons who have been convicted of sexual offences against children and criminal sanction

33. (1) A person who has been convicted of a sexual offence against a child and whose name has been included in the Register may not work with children in any circumstances or position contemplated in section 34 or which, in any other manner, place him or her in a position of authority, supervision or care of children.

(2) Any person (A) contemplated in section 34(a) to (d) or any person (A) who, in any other manner, is in a position of authority, supervision or care of children may not employ a person (B)/ may not make use of the services of a person (B) in any manner if that person (B) has been convicted of a sexual offence against a child and his or her (B) name has been included in the Register.

(3) A person who has been convicted of a sexual offence against a child must, when applying for employment which places him or her in a position of authority or care of children or when offering or agreeing to take care of or supervise children, disclose such conviction, irrespective of whether his or name has 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 three years or to both a fine and such imprisonment.

Persons entitled to apply for certificate in respect of information recorded in Register

34. The following persons (A) may, in the prescribed manner, apply to the Registrar of the Register for a prescribed certificate stating whether or not a person mentioned in the application (A or B) is recorded in the Register as having a conviction for a sexual offence (against a child???):

(a) A person who 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, a club, association or business providing services to or for children;

(b) a person who works with children at 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 or a person who is involved in the implementation of a cluster foster care scheme, either as an employee, volunteer or in any other capacity;

(c) a person who is in charge of any unit of the South African Police Service tasked with child protection;

(d) a person who works in any other form of employment or activity as may be prescribed; or

(e) a person who intends applying for any position at any centre, facility, shelter, scheme, school, club, association, business or unit contemplated in paragraphs (a) to (d), either as an employee, volunteer or in any other capacity.

Confidentiality and disclosure of information and criminal sanction

35. (1) Any person who discloses any information which he or she has acquired in the exercise of the powers, performance of functions or carrying out the duties conferred upon, assigned to or imposed upon him or her under this Part, or in the course of the performance of any functions relating to the provisions of this Part, except -

(a) for the purpose of giving effect to the provisions of this Part; 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 Part, any person (A) who willfully or in a grossly negligent manner discloses any information to any other person (B) which he or she has acquired as a result of an application contemplated in section 34 and which indicates that another person (C) 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

36. (1) The Cabinet member responsible for the administration of justice must make regulations relating to -

(a) the manner and format in which the Register is to be established and maintained as contemplated in section 30(a);

(b) any particulars to be included in the Register, in addition to those mentioned in section 30(b)(i) to( v);

(c) the manner in which a finding must be made on whether a convicted person is unsuitable to work with children as contemplated in section 31(1)(a);

(d) the manner and period in which a member of an enterprise must be informed of an order made in terms of section 31(2)(b);

(e) 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 31(4)(a);

(f) 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 31(4)(b);

(g) any institution or person contemplated in section 32(4)(c)(i);

(h) the manner in which persons mentioned in section 34 must apply to the registrar for a certificate;

(i) the format of the certificate contemplated in section 34;

(j) persons who may apply for a certificate, in addition to those mentioned in section 34(a) to (c) and (e);

(k) the period within which a certificate contemplated in section 34 must be provided to any applicant by the Registrar;

(l) access to the Register; and

(m) the safe-keeping and disposal of records.

(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.

Interpretation

37. For purposes of this Part -

(a) "certificate" means the certificate contemplated in section 34;

(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, 2004;

(c) "enterprise" includes any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity;

(d) "Register" means the National Register for the Protection of Children against Sexual Offenders established under section 28(1); and

(e) "Registrar" means the Registrar of the National Register for the Protection of Children against Sexual Offenders contemplated in section 28(2).

 

CHAPTER 7

GENERAL PROVISIONS

Witness to be notified of protective measures

14. (1) The prosecution must inform a witness who is to give evidence in criminal proceedings in which a person is charged with the alleged commission of a sexual offence, or if such witness is a child, such child, his or her parent, guardian or a person in loco parentis, of the possibility that he or she may be declared a vulnerable witness in terms of section 15 and of the protective measures listed in paragraphs (a) to (g) of section 15(4) prior to such witness commencing with his or her testimony at any stage of the proceedings.

(2) The court must, prior to hearing evidence given by a witness referred to in subsection (1), enquire from the prosecutor whether the witness has been informed as contemplated in that subsection and must note the witness's response on the record of the proceedings, and if the witness indicates that he or she has not been so informed, the court shall ensure that the witness is so informed.

Vulnerable witnesses

15. (1) A court, in criminal proceedings involving the alleged commission of a sexual offence, must declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is3/4

(a) the complainant in the proceedings pending before the court; or

(b) a child.

(2) The court may, on its own initiative or on request of the prosecution or any witness, other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1), declare any such witness, other than the accused, a vulnerable witness if in the court's opinion he or she is likely to be vulnerable on account of3/4

(a) age;

(b) intellectual, psychological or physical impairment;

(c) trauma;

(d) cultural differences;

(e) the possibility of intimidation;

(f) race;

(g) religion;

(h) language;

(i) the relationship of the witness to any party to the proceedings;

(j) the nature of the subject matter of the evidence; or

(k) any other factor the court considers relevant.

(3) The court may, if in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon any knowledgeable person to appear before and advise the court on the vulnerability of such witness.

(4) Upon declaration of a witness as a vulnerable witness in terms of this section, the court must, subject to the provisions of subsection (5), direct that such witness be protected by one or more of the following measures3/4

(a) allowing that witness to give evidence by means of closed circuit television as provided for in section 158 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), irrespective of any additional qualifying criteria prescribed by that section;

(b) directing that the witness must give evidence through an intermediary as provided for in section 170A of the Criminal Procedure Act, 1977, irrespective of any additional qualifying criteria prescribed by that section;

(c) directing that the proceedings may not take place in open court as provided for in section 153 of the Criminal Procedure Act, 1977, irrespective of any additional qualifying criteria prescribed by that section;

(d) prohibiting the publication of the identity of the complainant 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; or

(e) any other measure which the court deems just and appropriate.

(5) Once the court has declared a child a vulnerable witness the court must direct that an intermediary referred to in subsection (4)(b) be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the court must record the reasons for not appointing an intermediary.

(6) In determining which of the protective measures referred to in subsection (4) should be applied to a witness, the court must have regard to all the circumstances of the case, including3/4

(a) any views expressed by the witness, but the court must accord such views the weight it considers appropriate in view of the witness's age and maturity;

(b) views expressed by a knowledgeable person who is acquainted with or has dealt with the witness;

(c) the need to protect the witness's dignity and sense of safety and to protect the witness from traumatisation; and

(d) the question whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings.

(7) The court may, on its own initiative or upon the request of the prosecution, at any time revoke or vary a direction given in terms of subsection (4), and the court must, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation.

Evidence of previous consistent statements and delay in reporting

16 38. A court, in criminal proceedings involving the alleged commission of a sexual offence, may not draw an inference solely on account of3/4

(a) the fact that previous consistent statements have not been made; and

(b) the length of any delay between the alleged commission of such offence and the reporting thereof.

Evidence of previous consistent statements

XX. 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

XX. 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.

Evidence of surrounding circumstances and impact of sexual offence

17. Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced at criminal proceedings where such offence is tried in order to prove3/4

(a) whether a sexual offence is likely to have been committed3/4

(i) towards or in connection with the person concerned;

(ii) under coercive circumstances referred to in section 2(3);

(b) for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned.

Application of caution and requirement for corroboration

18. Despite the provisions of the common law, any other law or any rule of practice, a court must not treat the evidence of a witness in criminal proceedings pending before that court with caution and must not call for corroboration of evidence solely on account of the fact that the witness is3/4

(a) the complainant of a sexual offence; or

(b) a child.

Drug and alcohol treatment orders

19. A court may, upon conviction of a person having committed a sexual offence and if satisfied that the convicted person is dependent on or has the propensity to misuse alcohol or any drug and may benefit from treatment, grant an order in terms of section 296 of the Criminal Procedure Act, 1977, and such an order may be made in addition to any sentence, including a sentence of imprisonment which is not suspended.

 

Supervision of dangerous sexual offenders

20. (1) A court may declare a person who has been convicted of a sexual offence a dangerous sexual offender if such person has3/4

(a) more than one conviction for a sexual offence;

(b) been convicted of a sexual offence which was accompanied by violence or threats of violence; or

(c) been convicted of a sexual offence against a child, unless such person is a child himself or herself.

(2) Whenever a dangerous sexual offender has been convicted of a sexual offence and sentenced by a court to imprisonment without an option of a fine, the court may order, as part of the sentence, that when such offender is released after serving part of a term of imprisonment imposed or on parole, the Department of Correctional Services must ensure that the offender is placed under long term supervision by an appropriate person for the remainder of the sentence.

(3) For purposes of subsection (2) long term supervision means supervision of a rehabilitative nature for a period of not less than five years.

(4) A court may not make an order referred to in subsection (2) unless the court had regard to a report by a probation officer, social worker or other person designated by the court which report must contain an exposition of3/4

(a) the suitability of the offender to undergo a long term supervision order;

(b) the possible benefits of the imposition of a long term supervision order on the offender;

(c) a proposed rehabilitative programme for the offender;

(d) information on the family and social background of the offender;

(e) recommendations regarding any conditions to be imposed upon the granting of a long term supervision order; and

(f) any other matter directed by the court.

(5) An order referred to in subsection (2) must specify3/4

(a) that the offender is required to take part in a rehabilitative programme;

(b) the nature of the rehabilitative programme to be attended;

(c) the number of hours per month that the offender is required to undergo rehabilitative supervision; and

(d) that the offender is required, where applicable, to refrain from using or abusing alcohol or drugs.

(6) An order referred to in subsection (2) may specify that the offender is required to3/4

(a) refrain from visiting a specified location;

(b) refrain from seeking employment of a specified nature; and

(c) subject himself or herself to a specified form of monitoring.

(7) A long term supervision order made by a court in terms of this section must be reviewed by that court within three years from the date on which the order was implemented or within such shorter period as the court may direct upon referral by the Commissioner of Correctional Services of such an order to that court for review at any time.

(8) Upon making a long term supervision order in terms of this section, the court must explain to the victim, including the next of kin of a deceased victim, that they have the right to be present at the review proceedings referred to in subsection (7) and may make representations.

(9) A court which has granted a long term supervision order in terms of this section may, upon evidence that a dangerous sexual offender has failed to comply with such order or with any condition imposed in connection with such order, direct that such offender be3/4

(a) warned to appear before that court or another court of similar or higher jurisdiction at a specified place and on a specified date and time; or

(b) arrested and brought before such court.

(10) Upon the appearance of a dangerous sexual offender at a court pursuant to the provisions of subsection (9), such court must conduct an inquiry into the reasons for such offender's failure to comply with a long term supervision order or with any condition imposed in connection with such order and may3/4

(a) confirm the original order and any conditions imposed in connection with such order;

(b) vary or withdraw such order or any such condition;

(c) impose an additional condition or conditions;

(d) review the original sentence and impose an alternative sentence; or

(e) make any other order as the court deems fit.

(11) If a court has directed that a dangerous sexual offender is required to take part in a rehabilitative programme contemplated in this section, the court may order that such offender, upon being found by the court to have adequate means, must contribute to the costs of such programme to the extent specified by the court.

(12) A person who has been declared a dangerous sexual offender and who does not comply with a supervision order in terms of this section is guilty of an offence of having not complied with supervision order and is liable upon conviction to a fine or imprisonment for a period not exceeding 12 months.

National Director of Public Prosecutions to decide whether police investigation should be discontinued

21. (1) The decision as to whether the investigation by a police official of a complaint that a sexual offence has been committed should be discontinued, rests with the National Director of Public Prosecutions.

(2) The National Director of Public Prosecutions may delegate his or her powers in terms of this section to a Director of Public Prosecutions.

Extra-territorial jurisdiction

22 39. (1) A person who, while being a citizen of, or permanently residing in, the Republic of South Africa, commits a act outside the Republic of South Africa which would have constituted a sexual offence had it been committed within the Republic, is guilty of such an offence and is liable to the same penalty prescribed for such offence.

(2) A person may not be convicted of an offence contemplated in subsection (1) if such person has been acquitted or convicted in the country where that offence was committed.

(3) A prosecution may not be instituted under this section without the written consent of the Director of Public Prosecutions who has jurisdiction in the area where the person contemplated in subsection (1) is ordinarily resident.

(4) If the consent of the Director of Public Prosecutions to institute prosecution has been obtained in terms of subsection (3), prosecution may be instituted in an appropriate court designated by such Director and such court has jurisdiction to try the matter as if the offence or offences had been committed within its jurisdiction.

(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 register 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), 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) act affects or is intended to affect a public body, a business or any other person in the Republic;

(b) person is found in the Republic; and

(c) 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 accused is ordinarily resident; or

(b) at the accused person's principal place of business.

 

Non-disclosure of conviction of sexual offence

23. A person who has been convicted of a sexual offence and who fails to disclose such conviction when applying for employment which places him or her in a position of authority or care of children, or when offering or agreeing to take care of or supervise children, is guilty of an offence and liable upon conviction to a fine or imprisonment for a period not exceeding three years or to both such fine and such imprisonment.

National policy framework

24 40. (1) The Minister for Justice and Constitutional Development must, after consultation with the Ministers of Safety and Security, Correctional Services, Social Development and Health, develop a national policy framework to ensure a uniformed and co-ordinated approach by all Government departments in dealing with sexual offence matters and to guide the implementation, enforcement and administration of this Act.

(a) prepare a national policy framework to guide the implementation, enforcement and administration of this Act in order to secure acceptable and uniform treatment of all sexual offence matters;

(b) review the policy framework at least once every five years; and

(c) when required, amend the policy framework.

(2) The national policy framework must contain the following―

(a) national objectives to ensure a uniform approach by the different organs of state in dealing with sexual offence matters;

(b) priorities and strategies to achieve the national objectives;

(c) performance indicators to measure progress with the achievement of those objectives;

(d) a framework for co-operative governance in the implementation and administration of this Act;

(e) the allocation to the different spheres of government and to different organs of state of primary and supporting roles and responsibilities; and

(f) measures to ensure adequate funding.

(3) The Minister must3/4

(a) within six months 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

Establishment of Inter-sectoral Committee

41. (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 of3/4

(a) the Director-General of the Department of Justice and Constitutional Development, who shall be the chairperson of the Committee;

(b) the Commissioner of the South African Police Service;

(c) the Commissioner of Correctional Services;

(d) the Director-General of the Department of Social Development;

(e) the Director-General of the Department of Health; and

(f) the National Director of Public Prosecutions, or a senior official in the Office of the National Director designated by him or her.

(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

42. (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

43. (1) The Committee shall be responsible for3/4

(a) the implementation of the priorities and strategies contained in the national policy framework referred to in section 32(2);

(b) measuring progress on the achievement of the national 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

(d) monitoring the implementation of this Act.

(2) The Committee may make recommendations to the Minister with regard to the amendment of the national policy framework.

(3) The individual members of the Committee must submit annual reports to Parliament on the implementation of this Act.

National Instructions and Directives

44. (1) (a) The National Commissioner of the South African Police Service must, in consultation with the Office of the National Director or Public Prosecutions, 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 offences 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;

(ii) the manner in which sexual offences cases are to be investigated by police officials, including the circumstances in which an investigation in respect of a sexual offence may be discontinued; and

(iii) the circumstances in which consultation with the prosecuting authority is required in the case of any alleged sexual offence.

(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; 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 efficient and sensitive manner.

(2) (a) The National Director of Public Prosecutions must, in consultation with the Cabinet member responsible for the administration of justice and after consultation with the National Commissioner of the South African Police Service 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 offences 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 offences 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 (Act No. 51 of 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 (Act No. 51 of 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 (Act No. 51 of 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 (Act No. 51 of 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 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;

(vii) the manner in which prosecutors must ensure that an order contemplated in section X (dealing with order for a court to include the accused's name in the Register) is forwarded to and received by the Registrar of the National Register for Protection of Children against Sexual Offenders; and

(viii) the circumstances in which and the manner of consultation with the members of the South African Police Services regarding sexual offences cases.

(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; and

(iii) provide for and promote the use of uniform norms, standards and procedures,

with a view to building a dedicated and experienced pool of trained and specialised prosecutors who are able to deal with sexual offences cases in an efficient and sensitive manner.

(3) (a) The Director-General: Health must, after consultation with the Directors-General: Justice and Constitutional Development and Social Development and the National Commissioner of the South African Police Service, 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 offences cases in order to achieve the objects of this Act as set out in section ... 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);

(ii) include social context training; and

(iii) provide for and promote the use of uniform norms, standards and procedures,

with a view to building a dedicated and experienced pool of trained and specialised health care practitioners who are able to deal with sexual offences cases in an efficient and sensitive manner.

(4) (a) The national instructions and directives contemplated in this section must, before publication in the Gazette, be approved by Cabinet and within 14 days thereafter, be tabled in Parliament for approval and must be made within six months after the commencement of this Act.

(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 for approval 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.

(6) Any person who fails to comply with or contravenes a provision of any national instruction or directive contemplated in this section is subject to disciplinary steps being taken against him or her in terms of the law.

 

Regulations

25 45. The Minister for Justice and Constitutional Development, in after consultation with the Ministers of Safety and Security, Correctional Services, Social Development and Health, may make regulations regarding3/4

(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 prescribe in order to achieve or promote the objects of this Act.

 

Amendment and repeal of laws Repeal and amendment of laws and transitional provisions

26 46. The Acts specified in Schedule 2 are amended or repealed to the extent set out in the third column of that Schedule.

(1) The common law crimes of rape, indecent assault, incest, bestiality and sexual violation of a corpse are hereby repealed.

(2) The laws specified in Schedule 1 are repealed or amended to the extent indicated in the third column of that Schedule.

(3) All criminal proceedings relating to the common law crimes referred to in subsection (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.

(4) 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 subsection (1) which was initiated before the commencement of this Act may be concluded, instituted and continued as if this Act had not been passed.

(5) 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 (3) or (4), remains in force as if such provision had not been repealed or amended.

Application of Act in relation to Sexual Offences Act, 1957

27. In the event of any inconsistency between the provisions of sections 3, 10, 12, 12A, 20 and 21 of the Sexual Offences Act, 1957 (Act No. 23 of 1957), insofar as those provisions relate to children, and any of the provisions of this Act, this Act takes precedence.

Short title and commencement

28 47. This Act is called the Criminal Law (Sexual Offences) Amendment Act, 2003, and takes effect on a date fixed by the President by proclamation in the Gazette.

SCHEDULE 1

Guiding principles to be considered in the application of this Act and the adjudication of sexual offences generally

In the application of the provisions of this Act and the adjudication of sexual offences generally, the following objectives must be considered:

(a) Complainants should not be discriminated against, either directly or indirectly, on the grounds of race, colour, ethnic or social origin, birth status, sex, gender, sexual orientation, age and developmental level, disability, religion, conscience, belief, culture or language;

(b) complainants should be treated with dignity and respect;

(c) complainants should be ensured access to the mechanisms of justice;

(d) complainants should be informed of their rights and the procedures within the criminal justice system which affect them;

(e) complainants should have the right to express an opinion, to be informed of all decisions, and to have their opinion taken seriously in any matter affecting them;

(f) in addition to all due process and constitutional rights, complainants should have the following rights3/4

(i) to have present at all decisions affecting them a person or persons important to their lives;

(ii) to have matters explained to them in a clear, understandable manner appropriate to their age and in a language and manner which they understand;

(iii) to remain in the family, where appropriate, during the investigation and whilst awaiting a final resolution of the matter and, if a child is removed from the family, to have the placement periodically reviewed;

(iv) to have procedures dealt with expeditiously in time frames appropriate to the complainant and the offence;

(g) complainants should have the right to confidentiality and privacy and to protection from publicity about the offence;

(h) the vulnerability of children should entitle them to speedy and special protection and provision of services by all role-players during all phases of the investigation, the court process and thereafter;

(i) since the family and the community are central to the well-being of a child, consideration should be given, in any decisions affecting a child, to3/4

(i) ensuring that, in addition to the child, his or her family, community and other significant role-players are consulted;

(ii) the extent to which decisions affecting the offender will affect a child, his or her family and community;

(iii) the particular relationship between the offender and a child;

(iv) keeping disruptive intervention into child, family and community life to a minimum in order to avoid secondary victimisation of the child;

(j) restorative and rehabilitative alternatives should be considered and applied unless the safety of the complainant and the interests of the community requires otherwise;

(k) a person who commits a sexual offence should be held accountable for his or her actions and should be encouraged to accept full responsibility for his or her behaviour;

(l) in determining appropriate sanctions for a person who has been found guilty of committing a sexual offence3/4

(i) the sanctions applied should ensure the safety and security of the victim, the family of the victim and the community;

(ii) the sanctions should promote the recovery of the victim and the restoration of the family of the victim and the community;

(iii) where appropriate, offenders should make restitution which may include material, medical or therapeutic assistance, to victims and their families or dependents;

(iv) the child sexual offender should receive special consideration in respect of sanctions and rehabilitation;

(v) the possibility of rehabilitating the sexual offender should be taken into account in considering the long-term goal of safety and security of victims, their families and communities;

(vi) the interests of the victim should be considered in any decision regarding sanctions;

(m) in order to avoid systemic secondary victimisation of the victim of sexual offences, binding inter-sectoral protocols following an inter-disciplinary approach should be followed;

(n) all professionals and role-players involved in the management of sexual offence cases should be properly and continuously trained after going through a proper selection and screening process; and

(o) cultural diversity should be taken into account in all matters pertaining to the victim, the offender and to their communities. The existence of cultural differences should be no justification for or licence to commit a sexual offence or to exclude a criminal justice process.

 

SCHEDULE 2

LAWS AMENDED OR REPEALED BY SECTION 29 36