DOCUMENT AIMED AT FACILITATING DISCUSSION OF SCHEDULE 1 TO THE SEXUAL OFFENCES BILL

THIS DOCUMENT IS DIVIDED INTO FOUR PARTS.

PART 1


EXPLANATORY NOTE:

Part 1 merely reflects the full text of all provisions in Schedule 1 of the current version of the Bill requiring either amendment or repeal. The provisions are reflected in the same chronological order as they appear in Schedule 1.

Schedule 1 of the current version now also amends references to sexual offences in other pieces of legislation by bringing those references in line with the current Bill. In those instances the references are highlighted.

Magistrates’ Court Act 32 of 1944 (contains references)

89 Jurisdiction in respect of offences
(1) The court, other than the court of a regional division, shall have jurisdiction over all offences except treason, murder and rape.
(2) The court of a regional division shall have jurisdiction over all offences except treason.

Schedule 2
Offences in respect of which judicial officers must be assisted by two assessors in terms of section 93ter (2):
1. Murder.
2. Rape.
3. Robbery, where serious bodily harm has been inflicted on the victim.
4. Assault, where serious bodily harm has been inflicted on the victim.
5. Indecent assault.





SEXUAL OFFENCES ACT 23 OF 1957

1 Definitions (new insertion of "person")

In this Act, unless the context otherwise indicates-

'brothel' includes any house or place kept or used for purposes of prostitution or for persons to visit for the purpose of having unlawful carnal intercourse or for any other lewd or indecent purpose;

'coloured person' ......

'court' means the court before which the charge is brought;

'house' includes a dwelling-house, building, room, out-house, shed or tent or any part thereof;

'owner' includes any person who lets or sub-lets or permits the occupation of any house or place whether in his own right or that of another;

'place' includes any field, enclosure, space, vehicle, or boat or any part thereof;

'police officer' means any member of any police force established under the authority of any law;

'unlawful carnal intercourse' means carnal intercourse otherwise than between husband and wife;

'white person' ......


9 Parent or guardian procuring defilement of child or ward (to be repealed)

(1) Any person who, being a parent or guardian of any child under the age of 18 years-

(a) permits, procures or attempts to procure such child to have unlawful carnal intercourse, or to commit any immoral or indecent act, with any person other than the procurer, or to reside in or to frequent a brothel; or

(b) orders, permits, or in any way assists in bringing about, or receives any consideration for, the defilement, seduction, or prostitution of such child,
shall be guilty of an offence.

(1A) For the purposes of subsection 1 (b) a parent or guardian whose child has been defiled or seduced or has become a prostitute, shall be deemed to have assisted in bringing about that defilement, seduction or prostitution if he has knowingly permitted his child to consort with, or to continue in the employment of, a prostitute or a person with an immoral reputation.

(2) The term 'guardian' in this section includes any person who has in law or in fact the custody or control of the child.

11 Conspiracy to defile (to be repealed)
Any person who conspires with any other person to induce any female by any false pretence or other fraudulent means to allow any male to have unlawful carnal intercourse with her, shall be guilty of an offence.

13 Abduction (to be repealed)
(1) Any person who takes or detains or causes to be taken or detained any unmarried male or female under the age of 21 years out of the custody and against the will of his or her father or mother or guardian, with intent that such person or any other person, whether a particular person or not, may have unlawful carnal intercourse with such unmarried male or female, shall be guilty of an offence.
(2) The term ‘guardian’ in this section includes any person who has in law or in fact the custody or control of the unmarried male of female.

14 Sexual offences with youths (to be repealed)

(1) Any male person who-

(a) has or attempts to have unlawful carnal intercourse with a girl under the age of 16 years; or

(b) commits or attempts to commit with such a girl or with a boy under the age of 19 years an immoral or indecent act; or

(c) solicits or entices such a girl or boy to the commission of an immoral or indecent act,
shall be guilty of an offence.

(2) It shall be a sufficient defence to any charge under subsection (1) if it shall be made to appear to the court-

(a) that the girl at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which he is so charged; or

(b) and (bA) ......

(c) that the girl or person in whose charge she was, deceived the person so charged into believing that she was over the age of 16 years at the said time.

(3) Any female who-

(a) has or attempts to have unlawful carnal intercourse with a boy under the age of sixteen years; or

(b) commits or attempts to commit with such a boy or with a girl under the age of 19 years an immoral or indecent act; or

(c) solicits or entices such a boy or girl to the commission of an immoral or indecent act,
shall be guilty of an offence.

(4) It shall be a sufficient defence to any charge under subsection (3) if it shall be made to appear to the court-

(a) that the boy at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which she is so charged; or

(b) that the boy or person in whose charge he was, deceived the person so charged into believing that he was over the age of 16 years at the said time.

15 Sexual offences with idiots or imbeciles (to be repealed)

Any person who-

(a) has or attempts to have unlawful carnal intercourse with any male or female idiot or imbecile in circumstances which do not amount to rape; or

(b) commits or attempts to commit with such a male or female any immoral or indecent act; or

(c) solicits or entices such a male or female to the commission of any immoral or indecent act,
shall, if it be proved that such person knew that such male or female was an idiot or imbecile, be guilty of an offence.

18 Use of drugs, etc, for purposes of defilement of females (to be repealed)

Any person who applies, administers to or causes to be taken by any female any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower her so as thereby to enable him to have unlawful carnal intercourse with her, shall be guilty of an offence.

18A Manufacture, sale or supply of article which is intended to be used to perform an unnatural sexual act (to be repealed)

(1) Any person who manufactures, sells or supplies any article which is intended to be used to perform an unnatural sexual act, shall be guilty of an offence.

(2) For the purposes of subsection (1), 'sell' includes to offer for sale, to keep for sale or to keep in a place where goods are sold, offered or kept for sale.

20A Acts committed between men at a party and which are calculated to stimulate sexual passion or to give sexual gratification, prohibited (to be repealed)
(1) A male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence.
(2) For the purposes of subsection (1) 'a party' means any occasion where more than two persons are present.
(3) The provisions of subsection (1) do not derogate from the common law, any other provision of this Act or a provision of any other law.

22. Penalties (to be amended)
Any person who is convicted of an offence under the provisions of this Act for which no special penalty is prescribed, shall be liable-
(a) in the case of an offence referred to in section 2 or 20(1)(a) or (aA), to imprisonment for a period not exceeding three years with or without a fine not exceeding R6 000 in addition to such imprisonment;
(b) in the case of an offence referred to in section 9(1), to imprisonment for a period not exceeding five years, or, if the child concerned is a boy under the age of 14 years or a girl under the age of 12 years, for life;
(c) ......
(d) in the case of an offence referred to in section 11, 12A or 18 with a fine, or imprisonment for a period not exceeding five years;
(e) in the case of an offence referred to in section 10, 12 (1) or 13 (1), to imprisonment for a period not exceeding seven years;
(f) in the case of an offence referred to in section 14(1), 14(3), 15 or 17, to imprisonment for a period not exceeding six years with or without a fine not exceeding R12 000 in addition to such imprisonment;
(g) in the case of an offence referred to in section 18A, 19 20 (1) (b) or (c), or 20A (1), to a fine not exceeding R4 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.



NOTE: FOR FULL TEXT OF SCHEDULE 2 TO THE CORRECTIONAL SERVICES ACT 8 OF 1959, SEE PAGE 47 OF THE BILL


Prescription Act 68 of 1969 (to be amended)

12 When prescription begins to run

(1) Subject to the provisions of subsections (2) and (3), prescription shall commence to run as soon as the debt is due.

(2) If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.

CRIMINAL PROCEDURE ACT 51 OF 1977

18 Prescription of right to institute prosecution (contains references)
The right to institute a prosecution for any offence, other than the offences of-
(a) murder;
(b) treason committed when the Republic is in a state of war;
(c) robbery, if aggravating circumstances were present;
(d) kidnapping;
(e) child-stealing; or
(f) rape

(g) the crime of genocide, crimes against humanity and war crimes, as contemplated in section 4 of the Implementation of the Rome Statute of the International Criminal Court Act, 2002,
shall, unless some other period is expressly provided by law, lapse after the expiration of a period of 20 years from the time when the offence was committed.

77. Capacity of accused to understand proceedings (contains references)
(6)(a) If the court which has jurisdiction in terms of section 75 to try the case, finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court may, if it is of the opinion that it is in the interests of the accused, taking into account the nature of the accused's incapacity contemplated in subsection (1), and unless it can be proved on a balance of probabilities that, on the limited evidence available the accused committed the act in question, order that such information or evidence be placed before the court as it deems fit so as to determine whether the accused has committed the act in question and the court shall direct that the accused-
(i) in the case of a charge of murder or culpable homicide or rape or a charge involving serious violence or if the court considers it to be necessary in the public interest, where the court finds that the accused has committed the act in question, or any other offence involving serious violence, be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002; or
(ii) where the court finds that the accused has committed an offence other than one contemplated in subparagraph (i) or that he or she has not committed any offence-
(aa) be admitted to and detained in an institution stated in the order as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002,
and if the court so directs after the accused has pleaded to the charge, the accused shall not be entitled under section 106 (4) to be acquitted or to be convicted in respect of the charge in question.
(b) If the court makes a finding in terms of paragraph (a) after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside, and if the accused has pleaded guilty it shall be deemed that he has pleaded not guilty.

78. Mental illness or mental defect and criminal responsibility (contains references)
(6) If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or intellectual disability not criminally responsible for such act-
(a) the court shall find the accused not guilty; or
(b) if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty,
by reason of mental illness or intellectual disability, as the case may be, and direct-
(i) in a case where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be-
(aa) detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002;
(bb) admitted to and detained in an institution stated in the order and treated as if he or she were an involuntary mental care health user contemplated in section 37 of the Mental Health Care Act, 2002;
(cc) ......
(dd) released subject to such conditions as the court considers appropriate; or
(ee) released unconditionally;
(ii) in any other case than a case contemplated in subparagraph (i), that the accused-
(aa) be admitted to and detained in an institution stated in the order and treated as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002;
(bb) ......
(cc) be released subject to such conditions as the court considers appropriate; or
(dd) be released unconditionally.

79. Panel for purposes of enquiry and report under sections 77 and 78 (contains references)
(1) Where a court issues a direction under section 77 (1) or 78 (2), the relevant enquiry shall be conducted and be reported on-
(a) where the accused is charged with an offence other than one referred to in paragraph (b), by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; or
(b) where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest, or where the court in any particular case so directs-
(i) by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court;
(ii) by a psychiatrist appointed by the court and who is not in the full-time service of the State;
(iii) by a psychiatrist appointed for the accused by the court; and
by a clinical psychologist where the court so directs.

153. Circumstances in which criminal proceedings shall not take place in open court (contains references)
(3) In criminal proceedings relating to a charge that the accused committed or attempted to commit-
(a) any indecent act towards or in connection with any other person;
(b) any act for the purpose of procuring or furthering the commission of an indecent act towards or in connection with any other person; or
(c) extortion or any statutory offence of demanding from any other person some advantage which was not due and, by inspiring fear in the mind of such other person, compelling him to render such advantage,
the court before which such proceedings are pending may, at the request of such other person or, if he is a minor, at the request of his parent or guardian, direct that any person whose presence is not necessary at the proceedings or any person or class of persons mentioned in the request, shall not be present at the proceedings: Provided that judgment shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the other person concerned would not be revealed thereby.

154 Prohibition of publication of certain information relating to criminal proceedings (to be amended)
(1) Where a court under section 153 (1) on any of the grounds referred to in that subsection directs that the public or any class thereof shall not be present at any proceedings or part thereof, the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever: Provided that a direction by the court shall not prevent the publication of information relating to the name and personal particulars of the accused, the charge against him, the plea, the verdict and the sentence, unless the court is of the opinion that the publication of any part of such information might defeat the object of its direction under section 153 (1), in which event the court may direct that such part shall not be published.
(2) (a) Where a court under section 153 (3) directs that any person or class of persons shall not be present at criminal proceedings or where any person is in terms of section 153 (3A) not admitted at criminal proceedings, no person shall publish in any manner whatever any information which might reveal the identity of any complainant in the proceedings: Provided that the presiding judge or judicial officer may authorize the publication of such information if he is of the opinion that such publication would be just and equitable.
(b) No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153 (3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question.
(3) No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of eighteen years or of a witness at criminal proceedings who is under the age of eighteen years: Provided that the presiding judge or judicial officer may authorize the publication of so much of such information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person.
(4) No prohibition or direction under this section shall apply with reference to the publication in the form of a bona fide law report of-
(a) information for the purpose of reporting any question of law relating to the proceedings in question; or
(b) any decision or ruling given by any court on such question,
if such report does not mention the name of the person charged or of the person against whom or in connection with whom the offence in question was alleged to have been committed or of any witness at such proceedings, and does not mention the place where the offence in question was alleged to have been committed.
(5) Any person who publishes any information in contravention of this section or contrary to any direction or authority under this section or who in any manner whatever reveals the identity of a witness in contravention of a direction under section 153 (2), shall be guilty of an offence and liable on conviction to a fine not exceeding R1 500 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

300 Court may award compensation where offence causes damage to or loss of property (reflected for purposes of contextualization)
(1) Where a person is convicted by a superior court, a regional court or a magistrate's court of an offence which has caused damage to or loss of property (including money) belonging to some other person, the court in question may, upon the application of the injured person or of the prosecutor acting on the instructions of the injured person, forthwith award the injured person compensation for such damage or loss: Provided that-
(a) a regional court or a magistrate's court shall not make any such award if the compensation applied for exceeds the amount* determined by the Minister from time to time by notice in the Gazette in respect of the respective courts.
(b) ......
(2) For the purposes of determining the amount of the compensation or the liability of the convicted person therefor, the court may refer to the evidence and the proceedings at the trial or hear further evidence either upon affidavit or orally.
(3) (a) An award made under this section-
(i) by a magistrate's court, shall have the effect of a civil judgment of that court;
(ii) by a regional court, shall have the effect of a civil judgment of the magistrate's court of the district in which the relevant trial took place.
(b) Where a superior court makes an award under this section, the registrar of the court shall forward a certified copy of the award to the clerk of the magistrate's court designated by the presiding judge or, if no such court is designated, to the clerk of the magistrate's court in whose area of jurisdiction the offence in question was committed, and thereupon such award shall have the effect of a civil judgment of that magistrate's court.
(4) Where money of the person convicted is taken from him upon his arrest, the court may order that payment be made forthwith from such money in satisfaction or on account of the award.
(5) (a) A person in whose favour an award has been made under this section may within sixty days after the date on which the award was made, in writing renounce the award by lodging with the registrar or clerk of the court in question a document of renunciation and, where applicable, by making a repayment of any moneys paid under subsection (4).
(b) Where the person concerned does not renounce an award under paragraph (a) within the period of sixty days, no person against whom the award was made shall be liable at the suit of the person concerned to any other civil proceedings in respect of the injury for which the award was made.

164 When unsworn or unaffirmed evidence admissible (to be amended)
(1) Any person who, from ignorance arising from youth, defective education or other cause, is found not to understand the nature and import of the oath or the affirmation, may be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation: Provided that such person shall, in lieu of the oath or affirmation, be admonished by the presiding judge or judicial officer to speak the truth, the whole truth and nothing but the truth.
(2) If such person wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury or any statutory offence punishable as perjury, he shall be deemed to have committed that offence, and shall, upon conviction, be liable to such punishment as is by law provided as a punishment for that offence.

170A Evidence through intermediaries (to be amended)
(1) Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the age of eighteen years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.
(2) (a) No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary under subsection (1), except examination by the court, shall take place in any manner other than through that intermediary.
(b) The said intermediary may, unless the court directs otherwise, convey the general purport of any question to the relevant witness.
(3) If a court appoints an intermediary under subsection (1), the court may direct that the relevant witness shall give his or her evidence at any place-
(a) which is informally arranged to set that witness at ease;
(b) which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and
(c) which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, that intermediary as well as that witness during his or her testimony.
(4) (a) The Minister may by notice in the Gazette determine the persons or the category or class of persons who are competent to be appointed as intermediaries.
(b) An intermediary who is not in the full-time employment of the State shall be paid such travelling and subsistence and other allowances in respect of the services rendered by him or her as the Minister, with the concurrence of the Minister of Finance, may determine.
(5) (a) No oath, affirmation or admonition which has been administered through an intermediary in terms of section 165 shall be invalid and no evidence which has been presented through an intermediary shall be inadmissible solely on account of the fact that such intermediary was not competent to be appointed as an intermediary in terms of a regulation referred to in subsection (4) (a), at the time when such oath, affirmation or admonition was administered or such evidence was presented.
(b) If in any proceedings it appears to a court that an oath, affirmation or admonition was administered or that evidence has been presented through an intermediary who was appointed in good faith but, at the time of such appointment, was not qualified to be appointed as an intermediary in terms of a regulation referred to in subsection (4) (a), the court must make a finding as to the validity of that oath, affirmation or admonition or the admissibility of that evidence, as the case may be, with due regard to-
(i) the reason why the intermediary concerned was not qualified to be appointed as an intermediary, and the likelihood that the reason concerned will affect the reliability of the evidence so presented adversely;
(ii) the mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be exposed to if that evidence is to be presented anew, whether by the witness in person or through another intermediary; and
(iii) the likelihood that real and substantial justice will be impaired if that evidence is admitted.
(6) (a) Subsection (5) does not prevent the prosecution from presenting anew any evidence which was presented through an intermediary referred to in that subsection.
(b) The provisions of subsection (5) shall also be applicable in respect of all cases where an intermediary referred to in that subsection has been appointed, and in respect of which, at the time of the commencement of that subsection-
(i) the trial court; or
(ii) the court considering an appeal or review,
has not delivered judgment.

195 Evidence for prosecution by husband or wife of accused (to be amended and contains references)
(1) The wife or husband of an accused shall be competent, but not compellable, to give evidence for the prosecution in criminal proceedings, but shall be competent and compellable to give evidence for the prosecution at such proceedings where the accused is charged with-
(a) any offence committed against the person of either of them or of a child of either of them;
(b) any offence under Chapter 8 of the Child Care Act, 1983 (Act 74 of 1983), committed in respect of any child of either of them;
(c) any contravention of any provision of section 31 (1) of the Maintenance Act, 1998, or of such provision as applied by any other law;
(d) bigamy;
(e) incest;
(f) abduction;
(g) any contravention of any provision of section 2, 8, 9, 10, 11, 12, 12A, 13, 17 or 20 of the Sexual Offences Act, 1957 (Act 23 of 1957);
(h) perjury committed in connection with or for the purpose of any judicial proceedings instituted or to be instituted or contemplated by the one of them against the other, or in connection with or for the purpose of criminal proceedings in respect of any offence included in this subsection;
(i) the statutory offence of making a false statement in any affidavit or any affirmed, solemn or attested declaration if it is made in connection with or for the purpose of any such proceedings as are mentioned in paragraph (h).
(2) For the purposes of the law of evidence in criminal proceedings 'marriage' shall include a customary marriage or customary union concluded under the indigenous law and custom of any of the indigenous peoples of the Republic of South Africa or any marriage concluded under any system of religious law.

227 Evidence of character (to be amended)
(1) Evidence as to the character of an accused or as to the character of any female against or in connection with whom any offence of an indecent nature is alleged to have been committed, shall, subject to the provisions of subsection (2), be admissible or inadmissible if such evidence would have been admissible or inadmissible on the thirtieth day of May, 1961.
(2) Evidence as to sexual intercourse by, or any sexual experience of any female against or in connection with whom any offence of a sexual nature is alleged to have been committed, shall not be adduced, and such female shall not be questioned regarding such sexual intercourse or sexual experience, except with the leave of the court, which leave shall not be granted unless the court is satisfied that such evidence or questioning is relevant: Provided that such evidence may be adduced and such female may be so questioned in respect of the offence which is being tried.
(3) Before an application for leave contemplated in subsection (2) is heard, the court shall direct that any person, whose presence is not necessary may not be present at the proceedings and the court may direct that a female referred to in subsection (2) may not be present.
(4) The provisions of this section are mutatis mutandis applicable in respect of a male against or in connection with whom any offence of an indecent nature is alleged to have been committed.

238 Evidence of relationship on charge of incest (to be amended and contains references)
(1) At criminal proceedings at which an accused is charged with incest -
(a) it shall be sufficient to prove that the woman or girl on whom or by whom the offence is alleged to have been committed, is reputed to be the lineal ascendant or descendant or the sister, stepmother, or stepdaughter of the other party to the incest;
(b) the accused shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him and the other party to the incest.
(2) Whenever the fact that any lawful and binding marriage was contracted is relevant to the issue at criminal proceedings at which an accused is charged with incest, such fact may be proved prima facie in the manner provided in section 237 for the proof of the existence of a lawful and binding marriage of a person charged with bigamy.
237 Evidence on charge of bigamy (reflected for purposes of contextualization)
(1) At criminal proceedings at which an accused is charged with bigamy, it shall, as soon as it is proved that a marriage ceremony, other than the ceremony relating to the alleged bigamous marriage, took place within the Republic between the accused and another person, be presumed, unless the contrary is proved, that the marriage was on the date of the solemnization thereof lawful and binding.
(2) At criminal proceedings at which an accused is charged with bigamy, it shall be presumed, unless the contrary is proved, that at the time of the solemnization of the alleged bigamous marriage there subsisted between the accused and another person a lawful and binding marriage-
(a) if there is produced at such proceedings, in any case in which the marriage is alleged to have been solemnized within the Republic, an extract from the marriage register which purports-
(i) to be a duplicate original or a copy of the marriage register relating to such marriage; and
(ii) to be certified as such a duplicate original or such a copy by the person having the custody of such marriage register or by a registrar of marriages;
(b) if there is produced at such proceedings, in any case in which the marriage is alleged to have been solemnized outside the Republic, a document which purports-
(i) to be an extract from a marriage register kept according to law in the country where the marriage is alleged to have been solemnized; and
(ii) to be certified as such an extract by the person having the custody of such register, if the signature of such person on the certificate is authenticated in accordance with any law of the Republic governing the authentication of documents executed outside the Republic.
(3) At criminal proceedings at which an accused is charged with bigamy, evidence-
(a) that shortly before the alleged bigamous marriage the accused had been cohabiting with the person to whom he is alleged to be lawfully married;
(b) that the accused had been treating and recognizing such person as a spouse; and
(c) of the performance of a marriage ceremony between the accused and such person,
shall, as soon as the alleged bigamous marriage, wherever solemnized, has been proved, be prima facie proof that there was a lawful and binding marriage subsisting between the accused and such person at the time of the solemnization of the alleged bigamous marriage.

261. Rape and indecent assault (contains references)
(1) If the evidence on a charge of rape or attempted rape does not prove the offence of rape or, as the case may be, attempted rape, but-
(a) the offence of assault with intent to do grievous bodily harm;
(b) the offence of indecent assault;
(c) the offence of common assault;
(d) the offence of incest;
(e) the statutory offence of-
(i) unlawful carnal intercourse with a girl under a specified age;
(ii) committing an immoral or indecent act with such a girl; or
(iii) soliciting or enticing such a girl to the commission of an immoral or indecent act;
(f) the statutory offence of-
(i) unlawful carnal intercourse with a female idiot or imbecile;
(ii) committing an immoral or indecent act with such a female; or
(iii) soliciting or enticing such a female to the commission of an immoral or indecent act;
(g) and (h) ......
the accused may be found guilty of the offence so proved.
(2) If the evidence on a charge of indecent assault does not prove the offence of indecent assault but-
(a) the offence of common assault;
(b) the statutory offence of-
(i) committing an immoral or indecent act with a girl or a boy under a specified age; or
(ii) soliciting or enticing such a girl or boy to the commission of an immoral or indecent act;
(c) the statutory offence of-
(i) attempting to have unlawful carnal intercourse with a female idiot or imbecile; or
(ii) committing an immoral or indecent act with such a female,
(d) and (e) ......
the accused may be found guilty of the offence so proved.
(3) ......

266. Assault with intent to do grievous bodily harm (contains references)
If the evidence on a charge of assault with intent to do grievous bodily harm does not prove the offence of assault with intent to do grievous bodily harm but the offence of-
(a) common assault;
(b) indecent assault; or
(c) pointing a fire-arm, air-gun or air-pistol in contravention of any law,
the accused may be found guilty of the offence so proved.

267. Common assault (contains references)
If the evidence on a charge of common assault proves the offence of indecent assault, the accused may be found guilty of indecent assault, or, if the evidence on such a charge does not prove the offence of common assault but the offence of pointing a fire-arm, air-gun or air-pistol in contravention of any law, the accused may be found guilty of that offence.

268. Statutory unlawful carnal intercourse (contains references)
If the evidence on a charge of unlawful carnal intercourse or attempted unlawful carnal intercourse with another person in contravention of any statute does not prove that offence but-
(a) the offence of indecent assault;
(b) the offence of common assault; or
(c) the statutory offence of-
(i) committing an immoral or indecent act with such other person;
(ii) soliciting, enticing or importuning such other person to have unlawful carnal intercourse;
(iii) soliciting, enticing or importuning such other person to commit an immoral or indecent act; or
(iv) conspiring with such other person to have unlawful carnal intercourse,
the accused may be found guilty of the offence so proved.

269. Sodomy (to be repealed)
If the evidence on a charge of sodomy or attempted sodomy does not prove the offence of sodomy or, as the case may be, attempted sodomy, but the offence of indecent assault or common assault, the accused may be found guilty of the offence so proved.

276A Imposition of correctional supervision, and conversion of imprisonment into correctional supervision and vice versa (to be amended)
(1) Punishment shall only be imposed under section 276 (1) (h)-
(a) after a report of a probation officer or a correctional official has been placed before the court; and
(b) for a fixed period not exceeding three years.
(2) Punishment shall only be imposed under section 276 (1) (i)-
(a) if the court is of the opinion that the offence justifies the imposing of imprisonment, with or without the option of a fine, for a period not exceeding five years; and
(b) for a fixed period not exceeding five years.
(3) (a) Where a person has been sentenced by a court to imprisonment for a period-
(i) not exceeding five years; or
(ii) exceeding five years, but his date of release in terms of the provisions of the Correctional Services Act, 1959 (Act 8 of 1959), and the regulations made thereunder is not more than five years in the future,
the Commissioner may, if he is of the opinion that such a person is fit to be subjected to correctional supervision, apply to the clerk or registrar of the court, as the case may be, to have that person appear before the court a quo in order to reconsider the said sentence.
(b) On receipt of any application referred to in paragraph (a) the clerk or registrar of the court, as the case may be, shall, after consultation with the prosecutor, set the matter down for a specific date on the roll of the court concerned.
(c) The clerk or registrar of the court, as the case may be, shall for purposes of the reconsideration of the sentence in accordance with this subsection-
(i) within a reasonable time before the date referred to in paragraph (b) submit the case record to the judicial officer who imposed the sentence or, if he is not available, another judicial officer of the same court: Provided that if the evidence in the case has been recorded by mechanical means, only such parts of the record as may be indicated as necessary by such a judicial officer, shall be transcribed for the purposes of this subsection;
(ii) inform the Commissioner in writing of the date for which the matter has been set down on the roll and request him to furnish him with a written motivated recommendation before that date for submission to the judicial officer; and
(iii) submit any recommendation referred to in subparagraph (ii) to that judicial officer.
(d) Whenever a court reconsiders a sentence in terms of this subsection, it shall have the same powers as if it were considering sentence after conviction of a person and the procedure adopted at such proceedings shall apply mutatis mutandis during such reconsideration: Provided that if the person concerned concurs thereto in writing, the proceedings contemplated in this subsection may be concluded in his absence: Provided further that he may nevertheless be represented at such proceedings or cause to submit written representations to the court.
(e) After a court has reconsidered a sentence in terms of this subsection, it may-
(i) confirm the sentence or order of the court a quo;
(ii) convert the sentence into correctional supervision on the conditions it may deem fit; or
(iii) impose any other proper sentence:
Provided that the last-mentioned sentence, if imprisonment, shall not exceed the period of the unexpired portion of imprisonment still to be served at that point.
(4) (a) A court, whether constituted differently or not, which has imposed a punishment referred to in subsection (1) or (2) on a person or has converted his sentence under subsection (3) (e) (ii), may at any time, if it is found from a motivated recommendation by a probation officer or the Commissioner that that person is not fit to be subject to correctional supervision or to serve the imposed punishment, reconsider that punishment and impose any other proper punishment.
(b) The procedure referred to in subsection (3) shall apply mutatis mutandis to the reconsideration of any punishment under this subsection.
276 Nature of punishments (reflected for purposes of contextualization)
(1) Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person convicted of an offence, namely-
(a) ......
(b) imprisonment, including imprisonment for life or imprisonment for an indefinite period as referred to in section 286B (1);
(c) periodical imprisonment;
(d) declaration as an habitual criminal;
(e) committal to any institution established by law;
(f) a fine;
(g) ......
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under correctional supervision in his discretion by the Commissioner.
(2) Save as is otherwise expressly provided by this Act, no provision thereof shall be construed-
(a) as authorizing any court to impose any sentence other than or any sentence in excess of the sentence which that court may impose in respect of any offence; or
(b) as derogating from any authority specially conferred upon any court by any law to impose any other punishment or to impose any forfeiture in addition to any other punishment.
(3) Notwithstanding anything to the contrary in any law contained, the provisions of subsection (1) shall not be construed as prohibiting the court-
(a) from imposing imprisonment together with correctional supervision; or
(b) from imposing the punishment referred to in subsection (1) (h) or (i) in respect of any offence.

299A. Right of complainant to make representations in certain matters with regard to placement on parole, on day parole, or under correctional supervision (contains references)
(1) When a court sentences a person to imprisonment for-
(a) murder or any other offence which involves the intentional killing of a person;
(b) rape;
(c) robbery where the wielding of a fire-arm or any other dangerous weapon or the infliction of grievous bodily harm or the robbery of a motor vehicle is involved;
(d) assault of a sexual nature;
(e) kidnapping; or
(f) any conspiracy, incitement or attempt to commit any offence contemplated in paragraphs (a) to (e),
it shall inform-
(i) the complainant; or
(ii) in the case of murder or any other offence contemplated in paragraph (a), any immediate relative of the deceased,
if he or she is present that he or she has a right, subject to the directives issued by the Commissioner of Correctional Services under subsection (4), to make representations when placement of the prisoner on parole, on day parole or under correctional supervision is considered or to attend any relevant meeting of the parole board.


335A Prohibition of publication of identity of persons towards or in connection with whom certain offences have been committed (to be amended)
(1) No person shall, with regard to any offence referred to in section 153 (3) (a) and (b), as from the date on which the offence in question was committed or allegedly committed, until the prohibition in terms of section 154 (2) (b) of the publication of information relating to the charge in question commences, publish any information which might reveal the identity of the person towards or in connection with whom the offence was committed or allegedly committed, except with the authorization of a magistrate granted on application in chambers, with due regard to the wishes of the person towards or in connection with whom the offence was committed.
(2) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding R1 500 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.


335B. Medical examination of minors towards or in connection with whom certain offences have been committed (contains references)
(1) If a police official charged with the investigation of a case is of the opinion that it is necessary that a minor in respect of whom it is alleged that an offence of an indecent or violent nature has been committed be examined by a district surgeon or, if he is not available, by a registered medical practitioner, but that the parent or guardian of such minor-
(a) cannot be traced within a reasonable time;
(b) cannot grant consent in time;
(c) is a suspect in respect of the offence in consequence of which the examination must be conducted;
(d) unreasonably refuses to consent that the examination be conducted;
(e) is incompetent on account of mental disorder to consent that the examination be conducted; or
(f) is deceased,
a magistrate may, on the written application of that police official and if he is satisfied that the medical examination is necessary, grant the necessary consent that such examination be conducted.




NOTE: FOR FULL TEXT OF SCHEDULE 1, PART II OF SCHEDULE 2, SCHEDULE 5, SCHEDULE 6 AND SCHEDULE 7 OF CPA, SEE PAGES 63 TO 69 OF BILL.

Child Care Act 74 of 1983 (contains references)
1 Definitions
'commercial sexual exploitation' means the procurement of a child to perform a sexual act for a financial or other reward payable to the child, the parents or guardian of the child, the procurer or any other person;

Choice on Termination of Pregnancy Act 92 of 1996 (contains references)
1 Definitions
'incest' means sexual intercourse between two persons who are related to each other in a degree which precludes a lawful marriage between them;

'rape' also includes statutory rape as referred to in sections 14 and 15 of the Sexual Offences Act, 1957 (Act 23 of 1957);


NOTE: FOR FULL TEXT OF PART I AND PART III OF SCHEDULE OF SCHEDULE 2 TO THE CRIMINAL LAW AMENDMENT ACT 105 OF 1997, SEE PAGES 70 TO 72 OF BILL.

NOTE: FOR FULL TEXT OF THE SCHEDULE TO THE WITNESS PROTECTION ACT 112 OF 1998, SEE PAGES 72 TO 74 OF BILL.

NOTE: FOR FULL TEXT OF SCHEDULE 1 TO THE PREVENTION OF ORGANISED CRIME ACT 121 OF 1998, SEE PAGES 74 TO 76 OF BILL.

Military Discipline Supplementary Measures Act 16 of 1999 (contains references)

3 Application of Act
(1) This Act shall, subject to subsection (2), apply to any person subject to the Code irrespective whether such person is within or outside the Republic. . . .
(3) When a person who is subject to the Code is suspected of having committed murder, treason, rape or culpable homicide in the Republic, the matter will be dealt with in accordance with section 27 of the National Prosecuting Authority Act, 1998 (Act 32 of 1998), and any ensuing trial shall take place in a civilian court. . . .

7 Composition and jurisdiction of Court of Military Appeals
(1) The Minister shall appoint a Court of Military Appeals-
(a) in matters where treason, murder, rape or culpable homicide committed outside the Republic, or where contraventions of section 4 or 5 of the Code are involved, composed of five members, being- . . .

9 Composition and jurisdiction of Court of Senior Military Judge
(1) . . .
(2) A Court of a Senior Military Judge may, subject to subsection (3), try any person subject to the Code for any offence, other than murder, treason, rape or culpable homicide committed within the Republic, and may on conviction sentence the offender to any punishment referred to in section 12.
(3) In any case where the charge or one of the charges brought or to be brought against an accused is murder, treason, rape or culpable homicide committed beyond the borders of the Republic, or is a contravention of section 4 or 5 of the Code, the powers conferred by this section shall be exercised by three senior military judges sitting together under the presidency of the senior of those judges.

30 Preliminary investigations
(1) If a military court directs that a preliminary investigation be held in respect of allegations made against a person subject to the Code, the presiding judge or commanding officer may-. . .
(8) When a preliminary investigation is held in respect of treason, murder, rape or culpable homicide, committed outside the Republic, or a contravention of section 4 or 5 of the Code or any offence punishable by imprisonment exceeding a period of 10 years, the prosecution counsel shall, subject to subsection (10), lead the evidence of every witness called by him or her and any witness may be cross-examined by the accused and may thereafter be re-examined by the prosecution counsel in relation to any evidence given by that witness under cross-examination and may at any stage of the proceedings be recalled by the presiding judge, commanding officer or recording officer for the purpose of being further examined or cross-examined, as the case may be. . . .



NOTE: FOR FULL TEXT OF SCHEDULE 1 TO THE IMMIGRATION ACT 13 OF 2002, SEE PAGE 78 OF BILL

NOTE: FOR FULL TEXT OF THE SCHEDULE TO PRIVATE SECURITY INDUSTRY LEVIES ACT 23 OF 2002, SEE PAGES 78 TO 80 OF BILL

Explosives Act 15 of 2003 (contains references)

30 Declaration of persons as unfit to possess explosives
(1) Unless the court determines otherwise, a person becomes unfit to possess explosives if convicted of- . . .
(n) any offence involving sabotage, terrorism, public violence, arson, intimidation, rape, kidnapping or child stealing; or . . .

PART 2

THIS PART DEALS WITH DIFFERENCES BETWEEN THE INTRODUCED BILL AND THE REDRAFTED BILL


EXPLANATORY NOTE:

Words underlined and in square brackets in this Part indicate proposals as contained in the introduced Bill, but which were omitted in the redrafted Bill as a result of deliberations by the former Portfolio Committee. These proposals therefore do not appear in Schedule 1 of the current version.

The full text of the relevant provisions is reflected.


PROVISIONS IN THE CRIMINAL PROCEDURE ACT 51 OF 1977

145 Trial in superior court by judge sitting with or without assessors
(1) (a) Except as provided in section 148, an accused arraigned before a superior court shall be tried by a judge of that court sitting with or without assessors in accordance with the provisions set out hereunder.
(b) An assessor for the purposes of this section means a person who, in the opinion of the judge who presides at a trial, has experience in the administration of justice or skill in any matter which may be considered at the trial, including, in the case where an accused is charged with a sexual offence—
(i)
experience or knowledge of child development;
(ii)
the impact of sexual offences on victims of such offences, the characteristics of sexual offenders; or
(iii)
knowledge of the circumstances that may contribute to the vulnerability of victims of sexual offences.
(2) Where an attorney-general arraigns an accused before a superior court-
(a) for trial and the accused pleads not guilty; or
(b) for sentence, or for trial and the accused pleads guilty, and a plea of not guilty is entered at the direction of the presiding judge,
the presiding judge may summon not more than two assessors to assist him at the trial.
(3) No assessor shall hear any evidence unless he first takes an oath or, as the case may be, makes an affirmation, administered by the presiding judge, that he will, on the evidence placed before him, give a true verdict upon the issues to be tried.
(4) An assessor who takes an oath or makes an affirmation under subsection (3) shall be a member of the court: Provided that-
(a) subject to the provisions of paragraphs (b) and (c) of this proviso and of section 217 (3) (b), the decision or finding of the majority of the members of the court upon any question of fact or upon the question referred to in the said paragraph (b) shall be the decision or finding of the court, except when the presiding judge sits with only one assessor, in which case the decision or finding of the judge shall, in the case of a difference of opinion, be the decision or finding of the court.
(b) if the presiding judge is of the opinion that it would be in the interests of the administration of justice that the assessor or the assessors assisting him do not take part in any decision upon the question whether evidence of any confession or other statement made by an accused is admissible as evidence against him, the judge alone shall decide upon such question, and he may for this purpose sit alone;
(c) the presiding judge alone shall decide upon any other question of law or upon any question whether any matter constitutes a question of law or a question of fact, and he may for this purpose sit alone.
(5) If an assessor is not in the full-time employment of the State, he shall be entitled to such compensation as the Minister, in consultation with the Minister of Finance, may determine in respect of expenses incurred by him in connection with his attendance at the trial, and in respect of his services as assessor.

164 When unsworn or unaffirmed evidence admissible
(1) Any person [who, from ignorance arising from youth, defective education or other cause, is found not to understand the nature and import of the oath or affirmation,] may be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation: Provided that such person is able to understand questions put to him or her and to respond to such questions in a manner which is intelligible; and provided further that such person shall, in lieu of the oath or affirmation, be admonished by the presiding judge or judicial officer to speak the truth[, the whole truth and nothing but the truth].
(2) If such person wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury or any statutory offence punishable as perjury, he shall be deemed to have committed that offence, and shall, upon conviction, be liable to such punishment as is by law provided as a punishment for that offence.

166 Cross-examination and re-examination of witnesses
(1) An accused may cross-examine any witness called on behalf of the prosecution at criminal proceedings or any co-accused who testifies at criminal proceedings or any witness called on behalf of such co-accused at criminal proceedings, and the prosecutor may cross-examine any witness, including an accused, called on behalf of the defence at criminal proceedings, and a witness called at such proceedings on behalf of the prosecution may be re-examined by the prosecutor on any matter raised during the cross-examination of that witness, and a witness called on behalf of the defence at such proceedings may likewise be re-examined by the accused.
(2) The prosecutor and the accused may, with leave of the court, examine or cross-examine any witness called by the court at criminal proceedings.
(3) (a) If it appears to a court that any cross-examination contemplated in this section is being protracted unreasonably and thereby causing the proceedings to be delayed unreasonably, the court may request the cross-examiner to disclose the relevancy of any particular line of examination and may impose reasonable limits on the examination regarding the length thereof or regarding any particular line of examination.
(b) The court may order that any submission regarding the relevancy of the cross-examination be heard in the absence of the witness.
(4) An accused in criminal proceedings involving the alleged commission of a sexual offence who has no legal representation shall put any questions to a vulnerable witness referred to section 15 of the Criminal Law (Sexual Offences) Amendment Act, 2003, by stating the question to the court, which shall repeat the question accurately to the witness.

170A Evidence through intermediaries
(1) Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the age of eighteen years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.
(2) (a) No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary under subsection (1), except examination by the court, shall take place in any manner other than through that intermediary.
(b) The said intermediary may, unless the court directs otherwise, convey the general purport of any question to the relevant witness.
(3) If a court appoints an intermediary under subsection (1), the court may direct that the relevant witness shall give his or her evidence at any place-
(a) which is informally arranged to set that witness at ease;
(b) which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and
(c) which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, that intermediary as well as that witness during his or her testimony.
(4) (a) The Minister may by notice in the Gazette determine the persons or the category or class of persons who are competent to be appointed as intermediaries.
(b) An intermediary who is not in the full-time employment of the State shall be paid such travelling and subsistence and other allowances in respect of the services rendered by him or her as the Minister, with the concurrence of the Minister of Finance, may determine.
(5) (a) No oath, affirmation or admonition which has been administered through an intermediary in terms of section 165 shall be invalid and no evidence which has been presented through an intermediary shall be inadmissible solely on account of the fact that such intermediary was not competent to be appointed as an intermediary in terms of a regulation referred to in subsection (4) (a), at the time when such oath, affirmation or admonition was administered or such evidence was presented.
(b) If in any proceedings it appears to a court that an oath, affirmation or admonition was administered or that evidence has been presented through an intermediary who was appointed in good faith but, at the time of such appointment, was not qualified to be appointed as an intermediary in terms of a regulation referred to in subsection (4) (a), the court must make a finding as to the validity of that oath, affirmation or admonition or the admissibility of that evidence, as the case may be, with due regard to-
(i) the reason why the intermediary concerned was not qualified to be appointed as an intermediary, and the likelihood that the reason concerned will affect the reliability of the evidence so presented adversely;
(ii) the mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be exposed to if that evidence is to be presented anew, whether by the witness in person or through another intermediary; and
(iii) the likelihood that real and substantial justice will be impaired if that evidence is admitted.
(6) (a) Subsection (5) does not prevent the prosecution from presenting anew any evidence which was presented through an intermediary referred to in that subsection.
(b) The provisions of subsection (5) shall also be applicable in respect of all cases where an intermediary referred to in that subsection has been appointed, and in respect of which, at the time of the commencement of that subsection-
(i) the trial court; or
(ii) the court considering an appeal or review,
has not delivered judgment.
(7)
If a court has directed that a vulnerable witness referred to in section 15 of the Criminal Law (Sexual Offences) Amendment Act, 2003, should be allowed to give evidence through an intermediary, such intermediary may -
(a)
convey the general purport of any question to the relevant witness;
(b)
inform the court at any time that the witness is fatigued or stressed; and
(c)
request the court for a recess.

192 Every witness competent and compellable unless expressly excluded
Every person not expressly excluded by this Act from giving evidence shall, subject to the provisions of section 206, be competent and compellable to give evidence in criminal proceedings.
192A Children competent to testify in criminal proceedings
(1) All persons below the age of 18 years shall be presumed to be competent to testify in criminal proceedings and such person shall not be precluded from giving evidence unless he or she is found, at any stage of the proceedings, not to have the ability or the mental capacity, verbal or otherwise, to respond to questions in a way that is understandable to the court.
(2)
The evidence given by a person referred to in subsection (1) shall be admissible in criminal proceedings contemplated in that subsection, and the court shall attach such weight to such evidence as it deems fit.
(3)
The court shall note the reasons for a finding in terms of subsection (1) on the record of the proceedings.

Magistrates’ Courts Act 32 of 1944

93ter Magistrate may be assisted by assessors

(1) The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice-
(a) before any evidence has been led; or

(b) in considering a community-based punishment in respect of any person who has been convicted of any offence,
summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be, to sit with him as assessor or assessors: Provided that if an accused is standing trial in the court of a regional division on a charge of murder, whether together with other charges or accused or not, the judicial officer shall at that trial be assisted by two assessors unless such an accused requests that the trial be proceeded with without assessors, whereupon the judicial officer may in his discretion summon one or two assessors to assist him: Provided further, that if an accused is standing trial on a charge of having committed any sexual offence, whether together with other charges or not, the judicial officer may at that trial be assisted by at least one assessor who has experience or knowledge of child development, the impact of sexual offences on victims of such offences, the characteristics of sexual offenders, or knowledge of the circumstances that may contribute to the vulnerability of victims of sexual offences.

(2) (a) In considering whether summoning assessors under subsection (1) would be expedient for the administration of justice, the judicial officer shall take into account-

(i) the cultural and social environment from which the accused originates;
(ii) the educational background of the accused;
(iii) the nature and the seriousness of the offence of which the accused stands accused or has been convicted;
(iv) the extent or probable extent of the punishment to which the accused will be exposed upon conviction, or is exposed, as the case may be;
(v) any other matter or circumstance which he may deem to be indicative of the desirability of summoning an assessor or assessors,
and he may question the accused in relation to the matters referred to in this paragraph.

(b) For the purposes of subsection (1) (b) a community-based punishment means-
(i) correctional supervision as defined in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977);
(ii) a punishment contemplated in section 297 (1) (a) (i) (cc) of the Criminal Procedure Act, 1977; or
(iii) a punishment contemplated in section 297 (1) (b) or (4) of the Criminal Procedure Act, 1977, and where the performance of community service as referred to in the said section 297 (1) (a) (i) (cc), is a condition for the suspension.

(3) Before the trial or the imposition of punishment, as the case may be, the said judicial officer shall administer an oath to the person or persons whom he has so called to his assistance that he or they will give a true verdict or a considered opinion, as the case may be, according to the evidence upon the issues to be tried or regarding the punishment, as the case may be, and thereupon he or they shall be a member or members of the court subject to the following provisions:

(a) Any matter of law arising for decision at such trial, and any question arising thereat as to whether a matter for decision is a matter of fact or a matter of law, shall be decided by the presiding judicial officer and no assessor shall have a voice in any such decision;

(b) the presiding judicial officer may adjourn the argument upon any such matter or question as is mentioned in paragraph (a) and may sit alone for the hearing of such argument and the decision of such matter or question;

(c) whenever the said judicial officer shall give a decision in terms of paragraph (a) he shall give his reasons for that decision;

(d) upon all matters of fact the decision or finding of the majority of the members of the court shall be the decision or finding of the court, except when only one assessor sits with the presiding judicial officer in which case the decision or finding of such judicial officer shall be the decision or finding of the court if there is a difference of opinion;

(e) it shall be incumbent on the court to give reasons for its decision or finding on any matter made under paragraph (d);

(f) in the event of a conviction the question of the punishment to be inflicted shall, except in a case contemplated in subsection (1) (b), be deemed, for the purposes of paragraph (a), to be a question of law.


(4) If any such assessor is not a person employed in a full-time capacity in the service of the State he shall be entitled to such compensation as the Minister, in consultation with the Minister of Finance, may determine in respect of expenses incurred by him in connection with his attendance at the trial, and in respect of his services as assessor.

(5) Every assessor shall, upon registration on the roll of assessors referred to in subsection (1), in writing take an oath or make an affirmation subscribed by him or her before the magistrate of the district concerned in the form set out below, namely -

'I ................................ (full name) do hereby swear/solemnly affirm that whenever I may be called upon to perform the functions of an assessor in terms of section 93ter of the Magistrates' Courts Act, 1944, I shall to the best of my ability make a considered finding or decision, or give a considered opinion, as the case may be, according to the evidence tendered in the matter.'.

(6) to (9) inclusive ......

(10) (a) A judicial officer who is assisted by an assessor may, on application by the prosecutor or the accused person, order the recusal of the assessor from the proceedings if the judicial officer is satisfied that-

(i) the assessor has a personal interest in the proceedings concerned;
(ii) there are reasonable grounds for believing that there is likely to be a conflict of interests as a result of the assessor's participation in the proceedings concerned; or
(iii) there are reasonable grounds for believing that there is a likelihood of bias on the part of the assessor.

(b) An assessor may recuse himself or herself from the proceedings for the reasons contemplated in paragraph (a).

(c) The prosecutor and the accused person shall-

(i) before the recusal of an assessor is ordered in terms of paragraph (a); or
(ii) in so far as it is practicable, before the recusal of an assessor in terms of paragraph (b),
be given an opportunity to address arguments to the judicial officer on the desirability of such recusal.

(d) The assessor concerned shall be given an opportunity to respond to any arguments referred to in paragraph (c), and the judicial officer may put such questions regarding the matter to the assessor as he or she may deem fit.

(e) The judicial officer shall give reasons for an order referred to in paragraph (a).

(11) (a) If an assessor-
(i) dies;
(ii) in the opinion of the presiding officer becomes unable to act as an assessor;
(iii) is for any reason absent; or
(iv) has been ordered to recuse himself or herself or has recused himself or herself in terms of subsection (10),
at any stage before the completion of the proceedings concerned, the presiding judicial officer may, in the interests of justice and after due consideration of the arguments put forward by the accused person and the prosecutor -

(aa) direct that the proceedings continue before the remaining member or members of the court;
(bb) direct that the proceedings start afresh; or
(cc) in the circumstances contemplated in subparagraph (iii), postpone the proceedings in order to obtain the assessor's presence:

Provided that if the accused person has legal representation and the prosecutor and the accused person consent thereto, the proceedings shall, in the circumstances contemplated in subparagraphs (i), (ii) or (iv), continue before the remaining member or members of the court.

(b) If, at proceedings which are continued in terms of this subsection, the judicial officer is assisted by the remaining assessor, the finding or decision of the judicial officer shall, in respect of any matter where there is a difference of opinion between the judicial officer and the assessor, be the finding or decision of the court.

(c) The judicial officer shall give reasons for any direction referred to in paragraph (a), and for any finding or decision referred to in paragraph (b).




BUSINESSES ACT 71 OF 1991

Schedule 1
BUSINESSES IN RESPECT OF WHICH A LICENCE IS REQUIRED

Item 1: Sale or supply of meals or perishable foodstuffs

(1) The carrying on of business by the sale or supply to consumers of-

(a) any foodstuff in the form of meals for consumption on or off the business premises; or
(b) any perishable foodstuff.

(2) For the purposes of subitem (1) 'perishable foodstuff' means any foodstuff or category of foodstuffs declared by an Administrator by notice in the Official Gazette to be a perishable foodstuff in the province concerned for the purposes of this item.
[Subitem (2) substituted by s. 5 of Act 186 of 1993.]

Item 2: Provision of certain types of health facilities or entertainment

The carrying on of business by-
(a) providing turkish baths, saunas or other health baths;
(b) providing massage or infra-red treatment;
(c) making the services of an escort, whether male or female, available to any other person;
(d) keeping three or more mechanical, electronic or electrical contrivances, instruments, apparatus or devices which are designed or used for the purpose of the playing of any game or for the purpose of recreation or amusement, and the operation of which involves the payment of any valuable consideration, either by the insertion of a coin, token coin or disc therein or in an appliance attached thereto or in any other manner;
(e) keeping three or more snooker or billiard tables;
(f) keeping or conducting a night club or discothèque;
(g) keeping or conducting a cinema or theatre;
(h) conducting adult premises referred to in section 24 of the Films and Publications Act, 1996;
(i) providing facilities for persons to have sexual intercourse.

Item 3: Hawking in meals or perishable foodstuffs
(1) The carrying on of business, whether as principal, employee or agent, by selling any foodstuff in the form of meals or any perishable foodstuff-
(a) which is conveyed from place to place, whether by vehicle or otherwise;
(b) on a public road or at any other place accessible to the public; or
(c) in, on or from a movable structure or stationary vehicle,
unless the business is covered by a licence for a business referred to in item 1 of this Schedule.

(2) For the purposes of subitem (1) 'perishable foodstuff' means any foodstuff or category of foodstuffs declared under item 1 (2) of this Schedule to be a perishable foodstuff.


2 Licensing authorities and licensing of businesses

(1) (a) An Administrator may by notice in the Official Gazette designate a local authority, or appoint any person or body, as a licensing authority for an area which the Administrator specifies or defines in the notice, to undertake from a date specified in the notice the licensing of businesses in the area concerned.
(b) A local authority may so be designated or appointed for any area, whether in or outside its own area of jurisdiction, but in the province concerned, including the area of jurisdiction of any other local authority or any part of such an area.
(c) When an Administrator exercises any power under paragraph (a), he shall do so with the concurrence of-
(i) the local authority, or person or body, designated or appointed as licensing authority;
(ii) in the case of the designation or appointment of a local authority as licensing authority for an area comprising the area of jurisdiction of another local authority or any part thereof, that other local authority;
(iii) in the case of the appointment of a person or body as licensing authority for an area comprising the area of jurisdiction of a local authority or any part thereof, that local authority.

(2) An Administrator may at any time, after consultation with the relevant licensing authority, amend or withdraw a notice under subsection (1) by notice in the Official Gazette.

(3) No person shall, with effect from the date specified in a notice under subsection (1) in respect of a specific licensing authority, carry on any business in the area of that licensing authority-
(a) unless, in the case of a business referred to in item 1 (1) or 2 of Schedule 1, he is the holder of an apposite licence issued to him by the licensing authority in respect of the business premises concerned;
(b) unless, in the case of a business referred to in item 3 (1) of Schedule 1, he is the holder of a hawker's licence issued to him by the licensing authority;
(c) contrary to a condition.

(4) A licensing authority shall, subject to the provisions of subsection (6), issue a licence which is properly applied for unless-
(a) in the case of a business referred to in item 1 (1) or 2 of Schedule 1, the business premises do not comply with a requirement relating to town planning or the safety or health of the public of any law which applies to those premises;
(aA) in the case of a business referred to in item 1 (1) or 3 (1) of Schedule 1, any apparatus, equipment, storage space, working surface, structure, vehicle, conveyance or any other article or place used for or in connection with the preparation, handling or sale of foodstuffs, does not comply with a requirement of a law relating to the health of the public;

(b) in the case of a business referred to in item 2 of Schedule 1, the licensing authority is satisfied that-
(i) the applicant, whether or not he is or will be in actual and effective control of the business; or
(ii) if another person is or will be so in control, that other person,
is not a suitable person to carry on the business, whether by reason of his character, having regard to any conviction recorded against him, his previous conduct or for any other reason;
(c) in the case of an application for a hawker's licence, such a licence of which the applicant concerned was the holder, was withdrawn under subsection (9) at any time during the preceding 12 months.
(5) (a) For the purposes of subsection (4) (b), a licensing authority may ask the South African Police for a report stating particulars of all convictions (if any) recorded against an applicant concerned or against any person referred to in subsection (4) (b) (ii).
(b) For the purposes of such a report any member of the South African Police may require the applicant or person concerned to furnish such information and particulars (including any finger-print, palm-print or foot-print) as that member may consider necessary.

(6) In considering an application for a licence, a licensing authority may-
(a) grant the application on condition that-
(i) the business premises concerned shall, before the licence is issued, comply with a requirement contemplated in subsection (4) (a) stipulated by the licensing authority and made known in writing to the applicant;
(ii) any apparatus, equipment, storage space, working surface, structure, vehicle, conveyance, article or place referred to in subsection (4) (aA) shall, before the licence is issued, comply with a requirement contemplated in that subsection so stipulated and made known; or
(b) issue the licence subject to any condition therein specified in terms of which the licence holder shall in connection with the business premises or any such apparatus, equipment, storage space, working surface, structure, vehicle, conveyance, article or place-
(i) comply with a specific requirement contemplated in subsection (4) (a) or (aA), as the case may be; or
(ii) within a specified period comply with such a requirement.

(7) A licensing authority may, on application by a licence holder, by way of endorsement on the licence-
(a) amend a condition;
(b) extend the period referred to in subsection (6) (b) (ii);
(c) revoke a condition;
(d) indicate that a condition specified in the licence has been complied with.

(8) (a) A licensing authority may at any time, after giving the licence holder concerned a reasonable opportunity to be heard, if it considers it necessary on the ground of changed circumstances in relation to a business or the relevant business premises, by way of endorsement on the licence concerned amend a condition or impose a condition referred to in subsection (6) (b).
(b) For the purposes of paragraph (a), a licensing authority may require a licence holder in writing to produce his licence to the licensing authority.

(9) A licensing authority may at any time, after giving the licence holder concerned a reasonable opportunity to be heard, withdraw or suspend a licence-
(a) on the ground that the business premises do not comply with a requirement contemplated in subsection (4) (a);
(b) on the ground that the licence holder failed to produce his licence to the licensing authority within 14 days after the receipt of a written request referred to in subsection (8) (b);
(c) in the case of a business referred to in item 2 of Schedule 1, if the licensing authority is satisfied that, if application had been made at that time for the licence concerned, the application could have been refused by virtue of subsection (4) (b);
(d) in the case of a business referred to in item 1 (1) or 3 (1) of Schedule 1, on the ground that-
(i) any foodstuff sold by the licence holder does not comply with a requirement of a law relating to the health of the public;
(ii) any apparatus, equipment, storage space, working surface, structure, vehicle, conveyance or any other article or place used for or in connection with the preparation, handling or sale of foodstuffs, does not comply with a requirement of a law relating to the health of the public.

(10) When a licensing authority decides to refuse an application for a licence, or to grant such an application subject to a condition contemplated in subsection (6) (a), or to issue a licence subject to a condition, or to amend or impose a condition under subsection (8), or to withdraw or suspend a licence, it shall as soon as practicable-
(a) notify the applicant or licence holder concerned in writing of its decision;
(b) furnish the applicant or licence holder concerned in writing with the reasons for its decision;
(c) inform the applicant or licence holder concerned in writing of his right of appeal under section 3.

(11) The issue of a licence shall not relieve the licence holder of complying with any law or legal requirement in connection with the business or premises concerned.

PART 3

THIS PART DEALS WITH REFERENCES TO SEXUAL MATTERS IN OTHER PIECES OF LEGISLATION ABOUT WHICH THERE IS UNCERTAINTY AS TO WHETHER THEY SHOULD BE INCORPORATED IN SCHEDULE 1 FOR AMENDMENT

EXPLANATORY NOTE:


The full text of provisions containing references to sexual matters in other legislation is reflected. The references are indicated by means of highlights. Schedule 1 to the current version of the Bill does not reflect amendments to these references.

Child Care Act 74 of 1983

19. Circumstances in which consent to adoption may be dispensed with
No consent in terms of section 18 (4) (d) shall be required-
(a) in the case of any child whose parents are dead and for whom no guardian has been appointed;
(b) from any parent-
(i) who is as a result of mental illness incompetent to give any consent; or
(ii) who deserted the child or whose whereabouts are unknown; or
(iii) who has physically, emotionally or sexually assaulted, ill-treated or abused the child or allowed him or her to be so assaulted, ill-treated or abused; or
(iv) who has caused or conduced to the seduction, abduction or sexual exploitation of the child or the commission by the child of immoral acts; or
(v) ......
(vi) who is withholding his consent unreasonably;
(vii) who, in the case of a child born out of wedlock, has failed to acknowledge himself as the father of the child or has, without good cause, failed to discharge his or her parental duties with regard to the child; or
(viii) whose child, in the case of a child born out of wedlock, was conceived as a result of an incestuous relationship between himself and the mother of the child; or
(ix) who, in the case of a child born out of wedlock-
(aa) was convicted of the crime of rape or assault of the mother of the child; or
(bb) was, after an enquiry by the children's court following an allegation by the mother of the child, found, on a balance of probabilities, to have raped or assaulted the mother of the child: Provided that such a finding shall not constitute a conviction for the crime of rape or assault, as the case may be; or
(x) who, in the case of a child born out of wedlock, has failed to respond, within 14 days, to a notice served upon him as contemplated in section 19A.

20 Effect of adoption
(1) An order of adoption shall terminate all the rights and obligations existing between the child and any person who was his parent (other than a spouse contemplated in section 17 (c)) immediately prior to such adoption, and that parent's relatives.
(2) An adopted child shall for all purposes whatever be deemed in law to be the legitimate child of the adoptive parent, as if he was born of that parent during the existence of a lawful marriage.
(3) An order of adoption shall, unless otherwise thereby provided, confer the surname of the adoptive parent on the adopted child.
(4) An order of adoption shall not have the effect of permitting or prohibiting any marriage or carnal intercourse (other than a marriage or carnal intercourse between the adoptive parent and the adopted child) which, but for the adoption, would have been prohibited or permitted.
(5) When an order is made for the adoption of any child, any order made in respect of that child under section 15 of this Act or section 290 of the Criminal Procedure Act, 1977 (Act 51 of 1977), shall lapse.

Law of Evidence and the Criminal Procedure Act Amendment Act 103 of 1987

1. Evidence of sexual intercourse by boy under 14 years may be adduced
Notwithstanding the provisions of any law or the common law, but subject to any rule of law relating to the accountability of any person under the age of 14 years, evidence may be adduced in legal proceedings where the question is in issue whether a boy under the age of 14 years has had sexual intercourse with any female, that such sexual intercourse has taken place, and no presumption or rule of law to the effect that such a boy is incapable of sexual intercourse shall come into operation.

Prevention of Family Violence Act 133 of 1993

5 Rape of wife by her husband

Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife.

Films and Publications Act 65 of 1996

1. Definitions
'sexual conduct'
includes-
(i) male genitals in a state of arousal or stimulation;
(ii) the undue display of genitals or of the anal region;
(iii) masturbation;
(iv) bestiality;
(v) sexual intercourse, whether real or simulated, including anal sexual intercourse;
(vi) sexual contact involving the direct or indirect fondling or touching of the intimate parts of a body, including the breasts, with or without any object;
(vii) the penetration of a vagina or anus with any object;
(viii) oral genital contact; or
(ix) oral anal contact;


Schedule 1
XX CLASSIFICATION FOR PUBLICATIONS

A publication shall be classified as XX if, judged within context-
(1) it contains a visual presentation, simulated or real of-
(a) ......
(b) explicit violent sexual conduct;
(c) bestiality, incest or rape;
(d) explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person or which degrades a person or which constitutes incitement to cause harm; or
(e) the explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm;
(2) ......

Schedule 2
X18 CLASSIFICATION FOR PUBLICATIONS

A publication shall be classified as X18 if, judged within context-
(1) it contains a visual presentation, simulated or real, of explicit sexual conduct which, in the case of sexual intercourse, includes an explicit visual presentation of genitals;
(2) it describes predominantly and explicitly any or all of the acts mentioned in Schedule 1 or item (1).

Schedule 6
XX CLASSIFICATION FOR FILMS

A film shall be classified as XX if, judged within context, it contains a scene or scenes, simulated or real, of any of the following:
(1) ......
(2) bestiality, incest or rape;
(3) explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person or which degrades a person or which constitutes incitement to cause harm;
(4) ......
(5) the explicit infliction of extreme violence or the explicit effects of extreme violence which constitutes incitement to cause harm.




Schedule 7
X18 CLASSIFICATION FOR FILMS

A film shall be classified as X18 if it contains a scene or scenes, simulated or real, judged within context, of explicit sexual conduct which, in the case of sexual intercourse, includes an explicit visual presentation of genitals.


Employment of Educators Act 76 of 1998

17. Serious misconduct
(1) An educator must be dismissed if he or she is found guilty of-
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).
(2) If it is alleged that an educator committed a serious misconduct contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.

18. Misconduct
(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship;
(b) wilfully or negligently mismanages the finances of the State, a school, a further education and training institution or an adult learning centre;
(c) without permission possesses or wrongfully uses the property of the State, a school, a further education and training institution, an adult learning centre, another employee or a visitor;
(d) wilfully, intentionally or negligently damages or causes loss to the property of the State, a school, a further education and training institution or an adult learning centre;
(e) in the course of duty endangers the lives of himself or herself or others by disregarding set safety rules or regulations;
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office of the State or a school, further education and training institution or adult learning centre;
(g) misuses his or her position in the Department of Education or a school, further education and training institution or adult learning centre to promote or to prejudice the interests of any person;
(h) accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer;
(i) fails to carry out a lawful order or routine instruction without just or reasonable cause;
(j) absents himself or herself from work without a valid reason or permission;
(k) unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution;
(l) performs poorly or inadequately for reasons other than incapacity;
(m) without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours;
(n) without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator's duties, any commission, fee, pecuniary or other reward to which the educator is not entitled by virtue of the educator's office, or fails to report to the employer the offer of any such commission, fee or reward;
(o) without authorisation, sleeps on duty;
(p) while on duty, is under the influence of an intoxicating, illegal, unauthorised or stupefying substance, including alcohol;
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
(r) assaults, or attempts to or threatens to assault, another employee or another person;
(s) incites other personnel to unprocedural and unlawful conduct;
(t) displays disrespect towards others in the workplace or demonstrates abusive or insolent behaviour;
(u) intimidates or victimises fellow employees, learners or students;
(v) prevents other employees from exercising their rights to freely associate with trade unions in terms of any labour legislation;
(w) operates any money-lending scheme for employees for his or her own benefit during working hours or from the premises of the educational institution or office where he or she is employed;
(x) carries or keeps firearms or other dangerous weapons on State premises, without the written authorisation of the employer;
(y) refuses to obey security regulations;
(z) gives false statements or evidence in the execution of his or her duties;
(aa) falsifies records or any other documentation;
(bb) participates in unprocedural, unprotected or unlawful industrial action;
(cc) fails or refuses to-
(i) follow a formal programme of counselling as contemplated in item 2 (4) of Schedule 1;
(ii) subject himself or herself to a medical examination as contemplated in item 3 (3) of Schedule 1 and in accordance with section 7 of the Employment Equity Act, 1998 (Act 55 of 1998); or
(iii) attend rehabilitation or follow a formal rehabilitation programme as contemplated in item 3 (8) of Schedule 1;
(dd) commits a common law or statutory offence;
(ee) commits an act of dishonesty; or
(ff) victimises an employee for, amongst others, his or her association with a trade union.
(2) If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2.
(3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of-
(a) counselling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one month's salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (a) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
(4) Any sanction contemplated in subsection (3) (e), (f) or (g) may be suspended for a specified period on conditions determined by the employer.
(5) An educator may be dismissed if he or she is found guilty of-
(a) dishonesty, as contemplated in subsection (1) (ee);
(b) victimising an employee for, amongst others, his or her association with a trade union, as contemplated in subsection (1) (ff);
(c) unfair discrimination, as contemplated in subsection (1) (k);
(d) rape, as contemplated in subsection (1) (dd);
(e) murder, as contemplated in subsection (1) (dd);
(f) contravening section 10 of the South African Schools Act, 1996 (Act 84 of 1996), as contemplated in subsection (1) (dd).

Firearms Control Act 60 of 2000

9. Application for competency certificate
(1) An application for a competency certificate to possess a firearm, to trade in firearms, to manufacture firearms or to carry on business as a gunsmith must be delivered to the Designated Firearms Officer responsible for the area in which the applicant ordinarily resides or in which the applicant's business is or will be situated, as the case may be.
(2) Where a person has not previously obtained a competency certificate, a competency certificate may only be issued to such person if he or she-
(a) is 21 years or older on the day the application is received by the Designated Firearms Officer;
(b) is a South African citizen or a holder of a permanent South African residence permit;
(c) is a fit and proper person to possess a firearm, to trade in firearms, to manufacture firearms or to conduct business as a gunsmith, as the case may be;
(d) is of stable mental condition and is not inclined to violence;
(e) is not dependent on any substance which has an intoxicating or narcotic effect;
(f) has not been convicted of any offence under or in terms of this Act or the previous Act and sentenced to a period of imprisonment without the option of a fine;
(g) has not been convicted, whether in or outside South Africa, of an offence involving the unlawful use or handling of a firearm by him or her or another participant to the offence, whether committed in or outside South Africa;
(h) has not been convicted, whether in or outside South Africa, of an offence involving-
(i) violence or sexual abuse, whether committed in or outside South Africa, and sentenced to a period of imprisonment without the option of a fine; or
(ii) physical or sexual abuse which occurred within a domestic relationship as defined in section 1 of the Domestic Violence Act, 1998 (Act 116 of 1998), whether committed in or outside South Africa;
(i) has not been convicted of fraud in relation to, or supplying false information for the purposes of, obtaining a competency certificate, licence, permit or authorisation in terms of this Act or the previous Act;
(j) has not been convicted, whether in or outside South Africa, of an offence involving the abuse of alcohol or drugs, whether committed in or outside South Africa, and sentenced to a period of imprisonment without the option of a fine;
(k) has not been convicted, whether in or outside South Africa, of an offence involving dealing in drugs, whether committed in or outside South Africa, and sentenced to a period of imprisonment without the option of a fine;
(l) has not been convicted of an offence in terms of the Domestic Violence Act, 1998 (Act 116 of 1998), and sentenced to a period of imprisonment without the option of a fine;
(m) has not been convicted of an offence involving the negligent handling of a firearm;
(n) has not been convicted of an offence in terms of the Explosives Act, 1956 (Act 26 of 1956), and sentenced to a period of imprisonment without the option of a fine;
(o) has not been convicted, whether in or outside South Africa, of an offence involving sabotage, terrorism, public violence, arson, intimidation, rape, kidnapping or child stealing, whether committed in or outside South Africa;
(p) has not become or been declared unfit to possess a firearm in terms of this Act or the previous Act;
(q) has successfully completed the prescribed test on knowledge of this Act;
(r) has successfully completed the prescribed training and practical tests regarding the safe and efficient handling of a firearm; and
(s) has, where applicable, successfully completed the prescribed training and practical tests for firearms dealers, manufacturers, gunsmiths, security officers or other persons who use firearms in the course of their business.
(3) Any offence referred to in subsection (2) includes any conspiracy, incitement or attempt to commit such offence, and means an offence in respect of which-
(a) a court has not made a determination that the person is not unfit to possess a firearm despite the conviction; and
(b) the sentence has been complied with less than five years before the application for a competency certificate was received by the Designated Firearms Officer.
(4) The disqualification contemplated in subsection (2) (p) ends upon the expiry of a period of five years calculated from the date on which the person became or was declared unfit, or the expiry of the period for which the declaration is valid, whichever occurs first.
(5) (a) Despite subsection (2) (a), the Registrar may allow a person under the age of 21 years to apply for a competency certificate if there are compelling reasons which require the person to obtain a competency certificate or licence to possess a firearm.
(b) Compelling reasons contemplated in paragraph (a) may include the fact that the applicant conducts a business, is gainfully employed, a dedicated hunter, a dedicated sports person or a private collector.
(6) (a) Where a person has previously obtained a competency certificate, a further competency certificate may only be issued to such person if he or she satisfies such requirements as may be prescribed.
(b) The requirements contemplated in paragraph (a) may not be more onerous than those applicable to a person who has not previously obtained a competency certificate.


PART 4

THIS PART DEALS WITH REFERENCES TO SEXUAL MATTERS IN OTHER PIECES OF LEGISLATION WHICH PROBABLY REQUIRE NO AMENDMENT

EXPLANATORY NOTE:


The full text of provisions containing references to sexual matters in other legislation is reflected. The references are indicated by means of highlights. Schedule 1 to the current version of the Bill does not reflect amendments to these references.

Domestic Violence Act 116 of 1998
1 Definitions
'domestic violence' means-
(a) physical abuse;
(b) sexual abuse;
(c) emotional, verbal and psychological abuse;
(d) economic abuse;
(e) intimidation;
(f) harassment;
(g) stalking;
(h) damage to property;
(i) entry into the complainant's residence without consent, where the parties do not share the same residence; or
(j) any other controlling or abusive behaviour towards a complainant,
where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant;

'sexual abuse' means any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant;

Firearms Control Act 60 of 2000
103 Declaration by court of person to be unfit to possess firearm
(1) Unless the court determines otherwise, a person becomes unfit to possess a firearm if convicted of-
(a) the unlawful possession of a firearm or ammunition;
(b) any crime or offence involving the unlawful use or handling of a firearm, whether the firearm was used or handled by that person or by another participant in that offence;
(c) an offence regarding the failure to store firearms or ammunition in accordance with the requirements of this Act;
(d) an offence involving the negligent handling or loss of a firearm while the firearm was in his or her possession or under his or her direct control;
(e) an offence involving the handling of a firearm while under the influence of any substance which has an intoxicating or narcotic effect;
(f) any other crime or offence in the commission of which a firearm was used, whether the firearm was used or handled by that person or by another participant in the offence;
(g) any offence involving violence, sexual abuse or dishonesty, for which the accused is sentenced to a period of imprisonment without the option of a fine;
(h) any other offence under or in terms of this Act in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;
(i) any offence involving physical or sexual abuse occurring in a domestic relationship as defined in section 1 of the Domestic Violence Act, 1998 (Act 116 of 1998);
(j) any offence involving the abuse of alcohol or drugs;
(k) any offence involving dealing in drugs;
(l) any offence in terms of the Domestic Violence Act, 1998 (Act 116 of 1998) in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;
(m) any offence in terms of the Explosives Act, 1956 (Act 26 of 1956), in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;
(n) any offence involving sabotage, terrorism, public violence, arson, intimidation, rape, kidnapping, or child stealing; or
(o) any conspiracy, incitement or attempt to commit an offence referred to above.

(2) (a) A court which convicts a person of a crime or offence referred to in Schedule 2 and which is not a crime or offence contemplated in subsection (1), must enquire and determine whether that person is unfit to possess a firearm.
(b) If a court, acting in terms of paragraph (a), determines that a person is unfit to possess a firearm, it must make a declaration to that effect.

(3) A court which has convicted a person of a crime or an offence contemplated in subsection (1), has made a determination contemplated in that subsection or has made a declaration in terms of subsection (2) must notify the Registrar in writing of that conviction, determination or declaration.

(4) Unless a determination that a person is not unfit to possess a firearm has been made in terms of subsection (1), a notice contemplated in subsection (3) must be accompanied by a court order for the immediate search for and seizure of-
(a) all competency certificates, licences, authorisations and permits issued to the relevant person in terms of this Act;
(b) all firearms in his or her possession; and
(c) all ammunition in his or her possession.

(5) A firearm and any other item seized in terms of subsection (4) must be kept by the South African Police Service or, if appropriate, by the Military Police, until an appeal against the conviction or sentence has been finalised or the time for an appeal has elapsed.

Schedule 2
CRIMES AND OFFENCES GIVING RISE TO UNFITNESS ENQUIRY BY COURT
(Section 103 (2))
1. High treason
2. Sedition
3. Malicious damage to property
4. Entering any premises with the intent to commit an offence under the common law or a statutory provision
5. Culpable homicide
6. Extortion
7. Any crime or offence-
(a) in terms of this Act or the previous Act, in respect of which an accused was not sentenced to a period of imprisonment without the option of a fine;
(b) in terms of the Domestic Violence Act, 1998 (Act 116 of 1998), in respect of which an accused was not sentenced to a period of imprisonment without the option of a fine;
(c) involving violence, sexual abuse or dishonesty, in respect of which an accused was not sentenced to a period of imprisonment without the option of a fine; or
(d) in terms of the Explosives Act, 1956 (Act 26 of 1956), in respect of which an accused was not sentenced to a period of imprisonment without the option of a fine.
8. Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

Explosives Act 15 of 2003
30 Declaration of persons as unfit to possess explosives
(1) Unless the court determines otherwise, a person becomes unfit to possess explosives if convicted of-
(a) the unlawful possession of explosives;
(b) any crime or offence involving the unlawful use or handling of explosives, whether explosives were used or handled by that person or by another participant in that crime or offence;
(c) an offence involving the failure to store explosives in accordance with the requirements of this Act;
(d) an offence involving the negligent handling or loss of explosives while the explosives were in his or her possession;
(e) an offence involving the handling of explosives while under the influence of any substance which has an intoxicating or narcotic effect;
(f) any other crime or offence in the commission of which explosives were used, whether the explosives were used or handled by that person or by another participant in the crime or offence;
(g) any offence involving violence, sexual abuse or dishonesty, for which the accused is sentenced to imprisonment without the option of a fine;
(h) any other offence under or in terms of this Act in respect of which the accused is sentenced to imprisonment without the option of a fine;
(i) any offence involving physical or sexual abuse occurring in a domestic relationship as defined in section 1 of the Domestic Violence Act, 1998 (Act 116 of 1998);
(j) any offence involving the abuse of alcohol or drugs;
(k) any offence involving dealing in drugs;
(l) any offence in terms of the Domestic Violence Act, 1998 (Act 116 of 1998), in respect of which the accused is sentenced to imprisonment without the option of a fine;
(m) any offence in terms of the Firearms Control Act, 2000 (Act 60 of 2000), in respect of which the accused is sentenced to imprisonment without the option of a fine;
(n) any offence involving sabotage, terrorism, public violence, arson, intimidation, rape, kidnapping or child stealing; or
(o) any conspiracy, incitement or attempt to commit an offence referred to above.
(2) (a) A court which convicts a person of an offence referred to in Schedule 2 and which is not an offence contemplated in subsection (1), must enquire and determine whether that person is unfit to possess explosives.
(b) If a court, acting in terms of paragraph (a), determines that a person is unfit to possess explosives, it must make a declaration to that effect.
(3) If a person becomes unfit to possess explosives or is declared unfit to possess explosives in terms of subsection (1) or (2), as the case may be, the relevant court must notify the Chief Inspector in writing of the person's unfitness and the notification must be accompanied by an order for the search and seizure of-
(a) all certificates, licences and permits issued to the person in terms of this Act; and
(b) all explosives in the person's possession.

Schedule 2
CRIMES AND OFFENCES GIVING RISE TO UNFITNESS ENQUIRY BY COURT (section 30)
High treason.
Sedition.
Malicious damage to property.
Entering any premises with the intent to commit an offence under the common law or a statutory provision.
Culpable homicide.
Extortion.
Any crime or offence-
(a) in terms of this Act or the previous Act, in respect of which an accused was not sentenced to imprisonment without the option of a fine;
(b) in terms of the Domestic Violence Act, 1998 (Act 116 of 1998), in respect of which an accused was not sentenced to imprisonment without the option of a fine;
(c) involving violence, sexual abuse or dishonesty, in respect of which an accused was not sentenced to imprisonment without the option of a fine;
(d) in terms of the Firearms Control Act, 2000 (Act 60 of 2000), in respect of which an accused was not sentenced to imprisonment without the option of a fine.
Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

Business Names Act 27 of 1960
5 Registrar may prohibit use of certain business names
(1) Upon the application in writing of any aggrieved person the Registrar may in writing order any person who carries on any business under any name, title or description which is in the opinion of the Registrar calculated to deceive or to mislead the public or to cause annoyance or offence to any person or class of persons or is suggestive of blasphemy or indecency, to cease to carry on the business under than name, title or description.
(2) Before considering any application made in terms of subsection (1), the Registrar shall furnish in writing to the person against whom an order under that subsection is sought, a statement setting out the name of the applicant and the grounds on which the application is made and afford such person a reasonable opportunity of replying thereto.
(3) Any provincial or local division of the Supreme Court within whose area of jurisdiction the business in question is being carried on may, on the application of any person aggrieved by any decision or order of the Registrar under subsection (1), set aside such decision or order, or may, on such application, make such order regarding such decision as it deems fit, provided such application is made within sixty days after the date of such decision or, in the case of an order of the Registrar under subsection (1), within such period after the receipt thereof as is mentioned in subsection (4).
(4) Any person who fails within such period after the receipt of an order under subsection (1) as the Registrar may allow, or in the case of any person who has applied to a competent court under subsection (3), within a like period after a final decision upholding the Registrar's order, to comply with such order, shall be guilty of an offence and liable on conviction to a fine not exceeding five pounds for every day during which the default continues.

PATENTS ACT 57 OF 1978
25 Patentable inventions
(1) A patent may, subject to the provisions of this section, be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade or industry or agriculture.
(2) Anything which consists of-
(a) a discovery;
(b) a scientific theory;
(c) a mathematical method;
(d) a literary, dramatic, musical or artistic work or any other aesthetic creation;
(e) a scheme, rule or method for performing a mental act, playing a game or doing business;
(f) a program for a computer; or
(g) the presentation of information,
shall not be an invention for the purposes of this Act.
(3) The provisions of subsection (2) shall prevent, only to the extent to which a patent or an application for a patent relates to that thing as such, anything from being treated as an invention for the purposes of this Act.
(4) A patent shall not be granted-
(a) for an invention the publication or exploitation of which would be generally expected to encourage offensive or immoral behaviour; or
(b) for any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological process or the product of such a process.
(5) An invention shall be deemed to be new if it does not form part of the state of the art immediately before the priority date of any claim to that invention.
(6) The state of the art shall comprise all matter (whether a product, a process, information about either, or anything else) which has been made available to the public (whether in the Republic or elsewhere) by written or oral description, by use or in any other way.
(7) The state of the art shall also comprise matter contained in an application, open to public inspection, for a patent, notwithstanding that that application was lodged at the patent office and became open to public inspection on or after the priority date of the relevant invention, if-
(a) that matter was contained in that application both as lodged and as open to public inspection; and
(b) the priority date of that matter is earlier than that of the invention.
(8) An invention used secretly and on a commercial scale within the Republic shall also be deemed to form part of the state of the art for the purposes of subsection (5).
(9) In the case of an invention consisting of a substance or composition for use in a method of treatment of the human or animal body by surgery or therapy or of diagnosis practised on the human or animal body, the fact that the substance or composition forms part of the state of the art immediately before the priority date of the invention shall not prevent a patent being granted for the invention if the use of the substance or composition in any such method does not form part of the state of the art at that date.
(10) Subject to the provisions of section 39 (6), an invention shall be deemed to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms, immediately before the priority date of the invention, part of the state of the art by virtue only of subsection (6) (and disregarding subsections (7) and (8)).
(11) An invention of a method of treatment of the human or animal body by surgery or therapy or of diagnosis practised on the human or animal body shall be deemed not to be capable of being used or applied in trade or industry or agriculture.
(12) Subsection (11) shall not prevent a product consisting of a substance or composition being deemed to be capable of being used or applied in trade or industry or agriculture merely because it is invented for use in any such method.