SexOff_2(SO)

REPUBLIC OF SOUTH AFRICA

CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B - 2003]

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GENERAL EXPLANATORY NOTE:

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B I L L

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

CHAPTER 1

DEFINITIONS AND OBJECTS

1 Definitions

2 Objects

CHAPTER 2

OFFENCES

Part 1

3 Rape

4 Compelled rape

5 Criminal non-disclosure of HIV or AIDS

6 Criminal non-disclosure of a sexually transmissible infection other than HIV

Part 2

7 Sexual Assault

8 Compelled Sexual Assault

9 Exposure or display of pornography

Part 3

10 Incest

11 Bestiality

12 Sexual act with a corpse

CHAPTER 3

OFFENCES AGAINST CHILDREN

Part 1

13 Acts of sexual penetration with certain children

14 Acts of sexual violation with certain children

15 Sexual exploitation of a child

Part 2

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

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

18 Exposure or display of a sexual act to a child

19 Grooming of a child to commit a sexual offence

CHAPTER 4

OFFENCES AGAINST MENTALLY DISABLED PERSON

21 Engaging in an act of sexual violation in the presence of a mentally disabled person

22 Exposure or display of a sexual act to a mentally disabled person

23 Sexual exploitation of a mentally disabled person

CHAPTER 5

TRAFFICKING

24 Trafficking of a person

CHAPTER 6

NATIONAL REGISTER FOR SEX OFFENDERS

26 Objects of Register

27 Contents of Register

28 Persons whose names must be included in Register

29 Removal of name/particulars from Register

CHAPTER 7

GENERAL PROVISIONS

Part 1

35 Evidence of previous consistent statements

36 Evidence of delay in reporting

37 Extra-territorial jurisdiction

Part 2

38 National policy framework

39 Establishment of Inter-sectoral Committee

40 Meetings of Committee

41 Responsibilities, functions and duties of Committee

Part 3

42 National Instructions and Directives

43 Regulations

44 Repeal and amendment of laws and transitional provisions

45 Short title and commencement

1. (1) In this Act, unless the context indicates otherwise¾

(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.

2. The objects of this Act are to¾

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.

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.

5. The provisions of—

3. (1) Any person ("A") who unlawfully and intentionally commits an act of sexual penetration with another person ("B") without the consent of B, 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—

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

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness;

(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 16/18 years at the time of the alleged commission of the offence.

(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.

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—

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

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

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness;

(v) a mentally disabled person; or

(vi) below the age of 12 years.

5. (1) A person ("A") who engages in intimate contact with another person ("B") and who intentionally does not disclose to B that he or she has HIV or AIDS is guilty of an offence of criminal non-disclosure of HIV or AIDS.

(2) "Intimate contact" means contact of a sexual nature that exposes the body of one person to a bodily fluid of another person .

(3) It is a defence to a charge under subsection (1), if B was aware that A was infected with HIV or AIDS and consented to intimate contact 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 is in the interests of justice with due regard to the following—

(i) the nature and duration of the relationship between A and B;

(ii) whether A is financially dependent on 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.

6. (1) A person ("A") who engages in intimate contact with another person ("B") and who intentionally does not disclose to B that he or she is infected with a sexually transmissible infection, other than HIV, is guilty of an offence of criminal non-disclosure of a sexually transmissible infection, other than HIV, and is liable upon conviction to a fine or to imprisonment for a period not exceeding XX years.

(2) "Intimate contact" means contact of a sexual nature that exposes the body of one person to a bodily fluid of another person.

(3) It is a defence to a charge under subsection (1), if B was aware that A was infected with a sexually transmissible infection, other than HIV, and consented to intimate contact with that knowledge.

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 following¾

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

(f) where B is, at the time of the commission of such act¾

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness;

(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 16/18 years at the time of the alleged commission of the offence.

(5) Sentencing.

6 8. A person ("A") who unlawfully and intentionally compels, induces or causes another person ("B") to engage in an indecent act of sexual violation with¾

(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,

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

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.

9. A person ("A") who unlawfully and intentionally, for sexual gratification of A or a third person, exposes or displays a sexual act to a person over the age of 18 years ("B"), against his or her will, by¾

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

13 10. 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).

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

11. 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.

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

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) if¾

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

(3) The provisions of subsection (2) do not apply if¾

(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) if¾

(6) The provisions of subsection (5) do not apply if¾

(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.

9 13. (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—

(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—

(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, if¾

(i) A was below the age of 16 years; and

(ii) B was older than 12 years of age, but below the age of 16 years,

(b) 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.

9 13. (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—

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

(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, if¾

(i) A was below the age of 18 years; and

(ii) B was older than 12 years of age, but below the age of 16 years,

(b) 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.

14. (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.

(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, if¾

(i) A was below the age of 16 years; and

(ii) B was older than 12 years of age, but below the age of 16 years,

(b) 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.

14. (1) A person ("A") who commits an act of sexual violation with a child ("B"), who is older than 12 years of age, but below the age of 16 years, where A was¾

(a) 16 years or older; or

(2) It is a defence to a charge under subsection (1) if it 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 the alleged commission of the offence, and A reasonably believed that B was over the age of 16 years.

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

14. (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.

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

(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, if¾

(i) A was below the age of 18 years; and

(ii) B was older than 12 years of age, but below the age of 18 years,

(b) 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.

14. (1) A person ("A") who commits an act of sexual violation with a child ("B"), who is older than 12 years of age, but below the age of 18 years, where A was¾

(a) 18 years or older; or

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

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

11. 15. (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"), intentionally¾

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) A person who has knowledge of the sexual exploitation of a child by any person and in any circumstances as contemplated in subsection (1) must report such knowledge within a reasonable time of gaining information of such occurrence at a police station

(b) A person who fails to report knowledge of the sexual exploitation of a child as contemplated in paragraph (a) is guilty of an offence and is liable upon conviction to a fine or imprisonment for a period not exceeding XX years.

(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, who¾

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 is¾

(a) a child; and

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

8 17. A person ("A") who unlawfully and 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 16/18 years ("B"), or a person who is mentally impaired for 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 such an act, 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.

18. A person ("A") who unlawfully and intentionally, for sexual gratification of A or of a third person or to sexualise a child below the age of 16/18 years ("B"), exposes or displays a sexual act to B by¾

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

10. 19. A person ("A") who—

is guilty of the offence of promoting a sexual offence with or grooming of 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.

8 20. A person ("A") who unlawfully and 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 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 such an act, 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.

8 21. A person ("A") who unlawfully and 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 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 such an act, 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.

22. A person ("A") who unlawfully and intentionally, for sexual gratification of A or of a third person or to sexualise a person who is mentally disabled ("B"), exposes or displays a sexual act to B by¾

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

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 if¾

12. 23. (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"), intentionally¾

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) A person who has knowledge of the sexual exploitation of a mentally disabled by any person and in any circumstances as contemplated in subsection (1) must report such knowledge within a reasonable time of gaining information of such occurrence at a police station

(b) A person who fails to report knowledge of the sexual exploitation of a mentally disabled person as contemplated in paragraph (a) is guilty of an offence and is liable upon conviction to a fine or imprisonment for a period not exceeding XX years. (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, who¾

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).

24. (1) A person ("A") who trafficks another person ("B") without the consent of B, is guilty of the offence of trafficking and is liable upon conviction to a fine or imprisonment for a period not exceeding XX years.

(2) For the purpose of subsection (1) "consent" means free agreement—

(3) Circumstances in which B does not freely agree to being trafficked, as contemplated in subsection (1), include, but are not limited to, the following—

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

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

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness;

(v) a mentally disabled person; or

(vi) a child.

(3) A person who conspires, attempts or assists another person engaged in trafficking of a person is guilty of an offence and is liable upon conviction to a fine or imprisonment for a period not exceeding XX years .

(4) A person who organises or directs the trafficking of a child or an adult for the purpose of sexual exploitation or pornography, shall be a person is guilty of an offence and is liable upon conviction to a fine or imprisonment for a period not exceeding XX years.

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

(6) A person 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 person into the Republic of South Africa and, upon entry into the Republic, the person does not have the travel documents required for lawful entry into the Republic.

(b) A commercial carrier is not guilty of an offence under paragraph (a) if¾

(c) A commercial carrier is, in addition to any offence under this section, liable to pay the costs of the trafficked person's care and safekeeping and return from, the Republic .

25. (1) The Cabinet member responsible for safety and security / the administration of justice must, within six months after the commencement of this Chapter, and, in accordance with the provisions and the regulations made under this Chapter, cause a National Register for Sex 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 Sex Offenders.

26. The objects of the Register are to –

(a) have a record of persons who—

27. The Register must –

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

(ii) the last known physical and postal address of the person;

(iii) the identification number of the person;

(iv) the age of the person;

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

28. (1) (a) A court that has –

(b) The particulars of the person concerned must, in the event that the court has made an order as contemplated in paragraph (a), be included in 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 must make an order that –

(i) the particulars of that enterprise; and

(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 27 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

(4) (a) The Commissioner of Correctional Services must, in the prescribed manner and within six months after the commencement of this Chapter, forward to the Registrar the particulars referred to in section 27 of every prisoner, who, at the commencement of this Chapter, is serving a sentence of imprisonment as the result of a conviction for a sexual offence against a child and the Registrar must forthwith endorse the Register accordingly.

(b) The Commissioner of Correctional Services must, in the prescribed manner and period, inform each prisoner whose particulars who have been forwarded to the Registrar of the implications thereof.

(5) The Commissioner of the South African Police Service must, in the prescribed manner and within six months after the commencement of this Chapter, forward to the Registrar the particulars referred to in section 27 of every person, who, at the commencement of this Chapter, has a previous conviction for a sexual offence against a child and the Registrar must forthwith endorse the Register accordingly

29. (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;

(2) (a) A court that has convicted a person of a sexual offence against a child may, when making an order contemplated in section 28(1)(b a) 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;

(c) a report by the Registrar containing –

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

(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.

30. (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 31 or which, in any other manner, place him or her in a position of authority, supervision or care of children.

(2) Any person contemplated in section 31(a) to (d) or any person who, in any other manner, is in a position of authority, supervision or care of children may not employ a person/ may not make use of the services of a person in any manner if that person has been convicted of a sexual offence against a child and his or her 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 her 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.

31. The following persons 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 is recorded in the Register as having a conviction for a sexual offence (against a child):

32. (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 Chapter, or in the course of the performance of any functions relating to the provisions of this Chapter, except –

(a) for the purpose of giving effect to the provisions of this Chapter; or

(b) when required to do so by any competent court,

(2) Except in so far as it may be necessary for the purposes of this Chapter, any person who willfully or in a grossly negligent manner discloses any information to any other person which he or she has acquired as a result of an application contemplated in section 31 and which indicates that another person has a conviction for a sexual offence against a child, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both a fine and such imprisonment.

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

(g) any institution or person contemplated in section 29(4)(c)(i);

(i) the format of the certificate contemplated in section 31;

(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.

34. For purposes of this Chapter –

(a) "certificate" means the certificate contemplated in section 31;

[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.]

[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 is¾

(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 of¾

(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 measures¾

(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, including¾

(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.]

35. 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.

36. 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 prove¾

(a) whether a sexual offence is likely to have been committed¾

[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 is¾

(a) the complainant of a sexual offence; or

(b) a child.]

[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.]

[20. (1) A court may declare a person who has been convicted of a sexual offence a dangerous sexual offender if such person has¾

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

(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 of¾

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

(c) a proposed rehabilitative programme for the offender;

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

(f) any other matter directed by the court.

(5) An order referred to in subsection (2) must specify¾

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

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

(6) An order referred to in subsection (2) may specify that the offender is required to¾

(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 be¾

(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 may¾

(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.]

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.

22 37. (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.

(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 if¾

(a) the person to be charged –

(i) is a citizen of the Republic;

(ii) is ordinarily resident in the Republic;

(v) any body of persons, corporate or unincorporated, in the Republic; or

(2) Any act alleged to constitute a sexual offence under this Act and which is committed outside the Republic by a person, other than a person contemplated in subsection (1)(a), is, whether or not the act constitutes an offence at the place of its commission, deemed to have been committed in the Republic if that –

(b) person is found in the Republic; and

(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.

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.

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

(f) measures to ensure adequate funding.

(3) The Minister must¾

(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

39. (1) There is hereby established a Committee to be known as the Inter-sectoral Committee for the Management of Sexual Offence Matters.

(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

(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.

40. (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.

41. (1) The Committee shall be responsible for¾

(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.

42. (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 –

(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 –

(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,

(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 2 and the Preamble, particularly those objects which have a bearing on complainants of such offences.

(b) The Director-General: Health must develop training courses, which must –

(i) include training on the directives referred to in paragraph (a);

(ii) include social context training; and

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

(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.

25 43. 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 regarding¾

(b) the inter-sectoral implementation of this Act; and

26 44. 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 relating to the—

(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.

28 45. 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.