REDRAFT: CLAUSES 33 AND 57 OF BILL

Application by victim or interested person for HIV testing of alleged sexual offender

33 (1)(a) Within 60 days after the alleged commission of a sexual offence any victim or any interested person on behalf of a victim, may apply to a magistrate, in the prescribed form, for an order that -

(i) the alleged offender be tested for HIV and that the results thereof be disclosed to the victim or interested person, as the case may be, and to the alleged offender; or

(ii) the HIV test results in respect of the alleged offender, obtained on application by a police official as contemplated in section [37] 35, be disclosed to the victim or interested person, as the case may be.

(b) If the application is brought by an interested person, such application must be brought with the written consent of the victim, unless the victim is
under the age of 14 years

a mentally disabled person

unconscious;

a person in respect of whom a curator has been appointed in terms of an order of court; or

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

(2)(a) Every application must

set out the grounds on which it is alleged that a sexual offence was committed against the victim;

(iA) set out the grounds on which it is alleged that the victim has been exposed to the risk of being infected by HIV as a result of the alleged sexual offence having been committed against him or her:

(ii) if it is brought by an interested person, state the nature of the relationship between the interested person and the victim, and if the interested person is not the spouse, same sex or hetero-sexual permanent life partner, or a family member of the victim, the reason why the application is being made by such interested person; and

(iii) state that less than 60 days have elapsed from the date on which it is alleged that the offence in question took place.

Redraft

(2) (a) Everv application must

(i) state that a sexual offence was committed against the victim by the alleged offender;
(ii) confirm that the alleged offence has been reported as contemplated in section 31(2);
(iii) state that the victim has been exposed to the risk of being infected by HIV as a result of the alleged sexual offence having been committed against him or her;
(iv) if it is brought by an interested person, state the nature of the relationship between the interested person and the victim, and if the interested person is not the spouse, same sex or hetero-sexual permanent life partner, or a family member of the victim, the reason why the application is being made by such interested person; and
(v) state that less than 60 days have elapsed from the date on which it is alleged that the offence in question took place.

(b) The matters referred to the paragraph (a) must be verified by the victim or the interested person, as the case may be, by affidavit or solemn declaration.

(3) The application must be made as soon as possible after a charge has been laid, and may be made before or after an arrest has been effected.

(4) The application must be handed to the investigating officer, who must, as soon as is reasonably practicable, submit the application to a magistrate of the magisterial district in which the sexual offence is alleged to have occurred.

National policy framework

57. (1) The Minister must, after consultation with the cabinet members responsible for safety and security, correctional services, social development and health and the National Director of Public Prosecutions, adopt a national policy framework to ensure a uniform and co-ordinated approach by all Government departments and institutions in dealing with matters relating to sexual offences and to guide the implementation, enforcement and administration of this Act and the enhancement of service delivery as envisaged in terms of this Act, with specific reference to, among others, by the development of a plan for the progressive realization of services for victims of sexual offences within available resources.

(a) the HIV testing of sexual offenders enhancing service delivery;

(b)the training of officials who deal with sexual offences cases;

(c) the

(2) The Minister must –

within one year after the implementation of this Act adopt and table the policy framework in Parliament;

publish the policy framework in the Gazette within one month after it has been tabled in Parliament;

review the policy framework within five years after its publication in the Gazette and at least once very five years thereafter, and

amend the policy framework as required, in which case such amendments must be tabled in Parliament and published in the Gazette, as contemplated in paragraph (b)