CHAPTER 6
NATIONAL
REGISTER FOR SEX OFFENDERS
Definitions
[44]
40. For purposes of this
Chapter, and unless the context indicates otherwise–
“certificate” means a certificate contemplated in section [48]44 [not older
than three months];
“employee” means–
(a) any
person who applies to work for or works for [another person or for an organ of state] an employer, and
who receives, or is entitled to receive, any remuneration, reward, favour or
benefit; or
(b) any
person, other than a person contemplated in (a), who in any manner
applies to assist or assists in carrying on or conducting the business of an
employer, [including but not limited to
any student, intern, volunteer, independent contractor, consultant, agent or
person employed by a temporary employment service] whether or not he or
she is entitled to receive any remuneration, reward, favour or benefit[,
where such person will be or is placed in a
position to work with a child or with a person who is mentally disabled or in a
position of authority, supervision over or care of a child or a person who is
mentally disabled or of gaining access to a child or a person who is mentally
disabled or places where children or persons who are mentally disabled are
present or congregate];
“employer” means –
(a) any –
(i) department
of state or administration in the national or provincial sphere of government
or any municipality in the local sphere of government [which]; or
(ii) any
other functionary or institution when exercising a power or performing a duty
in terms of the Constitution of the Republic of South Africa, 1996, or a
provincial constitution or exercising a public power or performing a public
function in terms of any legislation,
which –
(aa) employs employees who, in any manner and during the course of their
employment, will be placed in a position to work with a child or in a
position of authority, supervision or care of a child [or children] or gaining access to a child [or children] or places where children are present or congregate;
or
(bb) employs employees who, in any manner and during the course of their
employment, will be placed in a position to work with a person who is
mentally disabled or in a position of authority, supervision or care of a
person [or persons with mental
disabilities] who is mentally disabled or gaining access to a person
[or persons with mental disabilities] who
is mentally disabled or places where persons [with mental disabilities] who are mentally disabled are
present or congregate; or
(b) any person,
organisation, institution, club, sports club, association or body who or which,
as the case may be –
[(ii)](i) employs employees who, in any
manner and during the course of their employment, will be placed in a position
of authority, supervision or care of a child [or children] or a person [or
persons with mental disabilities] who is mentally disabled or working
with or gaining access to a child [or
children] or a person [or persons
with mental disabilities] who is mentally disabled or places where
children or persons [with mental
disabilities] who are mentally disabled are present or congregate;
or
[(i)](ii) owns, [has any business or economic interest in,] manages, operates,
has any business or economic interest in or is in any manner responsible
for, or participates or assists in the management or operation of any entity or
business concern or trade [in relation
having authority or] relating to the supervision over or care of a
child [or children] or a person [or persons with mental disabilities] who
is mentally disabled or working with or gaining access to a child [or children] or a person [or persons with mental disabilities] who
is mentally disabled or places where children or persons [with mental disabilities] who are
mentally disabled are present or congregate; [or]
and “employ”, “employing”, “employed”, “employment relationship” have
corresponding meanings;
“licensing authority” means any
authority which is responsible for granting licenses or approving the
management or operation of any entity, business concern or trade [in relation having authority or] relating
to the supervision over or care of a child [or children] or a person [or
persons with mental disabilities] who is mentally disabled;
"Register" means the National Register for Sex Offenders
established under section [46]42(1);
"Registrar" means the Registrar of the National Register for
Sex Offenders contemplated in section [46]42(2);
and
“relevant
authority” means [-
(a) ]any –
([i]a) department
of state or administration in the national or provincial sphere of government
or any municipality in the local sphere of government; or
([ii]b) any
other functionary or institution when exercising a power or performing a duty
in terms of the Constitution of the Republic of South Africa, 1996, or a
provincial constitution or exercising a public power or performing a public
function in terms of any legislation;
which is
tasked with considering applications from prospective foster parents, kinship
care-givers; temporary safe care-givers, adoptive parents or curators;.
Prohibition on certain types of employment [relating
to children] by certain persons who have committed sexual offences against
children [and related matters] and persons who are mentally disabled
[45]
41. (1) A person who has been convicted of the commission of a sexual
offence against a child or is alleged to have committed a sexual offence
against a child and has been dealt with in terms of section 77(6) or 78(6) of
the Criminal Procedure Act, 1977, whether committed before or after the
commencement of this Chapter, whether committed in or outside the Republic, and
whose particulars have been included in the Register, may not –
(a) be
employed to work with a child [or
children] in any circumstances;
(b) hold any position, related to his or her
employment, [including self employment]
or for any commercial benefit which in any manner places him or her in [a permanent or temporary/] any
position of authority, supervision or care of a child [or children], or which, in any other manner, places him or her in
a position of authority, supervision or care of a child [or children] or of gaining access to a child [or children] or places where children are present or congregate,
(c) be granted a license or be given
approval to manage or operate any entity, business concern or trade [relating to having authority] in
relation to the supervision over or care of [children] a child, or
(d) become the foster parent, kinship
care-giver, temporary safe care-giver or adoptive parent of a child.
(2) A person who has been convicted of the
commission of a sexual offence against a person [with a mental disability] who is mentally disabled or is
alleged to have committed a sexual offence against a person [with a mental disability] who is
mentally disabled [as contemplated
in section 15 of the Sexual Offences Act, 1957 or this Act] and has been
dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act,
1977, whether committed before or after the commencement of this Chapter,
whether committed in or outside the Republic, and whose particulars have been
included in the Register, may not –
(a) be employed to work with a person [or persons with mental disabilities] who
is mentally disabled in any circumstances;
(b) hold any position, related to his or her
employment, [including self employment]
or for any commercial benefit which in any manner places him or her in a [permanent or temporary/any] position
of authority, supervision or care of a person [or persons with mental disabilities] who is mentally disabled,
or which, in any other manner, places him or her in a position of authority,
supervision or care of a person [or
persons with mental disabilities] who is mentally disabled or of
gaining access to a person [or persons
with mental disabilities] who is mentally disabled or places where
persons [with mental disabilities] who
are mentally disabled are present or congregate,
(c) be granted a license or be given
approval to manage or operate any entity, business concern or trade [relating to having authority] in
relation to the supervision over or care of a person [with mental disabilities] who is mentally disabled, or
(d) become
the curator of a person [with a mental
disability] who is mentally disabled.
Establishment of National Register for Sex
Offenders and designation of Registrar of Register
[46]
42. (1) A
National Register for Sex Offenders containing particulars of persons [who are] convicted of [the commission of] any sexual
offence[s] against a child or a
person [with a mental disability] who
is mentally disabled or [is] are
alleged to have committed a sexual offence against a child or a person [with a mental disability] who is
mentally disabled and who have been dealt with in terms of section
77(6) or 78(6) of the Criminal Procedure Act, 1977, whether committed before or
after the commencement of this Chapter and whether committed in or outside the
Republic, must, within six months after the commencement of this Chapter, and,
in accordance with the provisions of this Chapter and the regulations made
thereunder, be established and maintained by the Minister.
(2) The Minister must designate a fit and
proper person, with due regard to his or her experience, conscientiousness and
integrity, as the Registrar of the National Register for Sex Offenders.
(3) [(a) ]The
Registrar must exercise and perform his or her powers, duties and functions
subject to the provisions of this Chapter and the regulations made thereunder.
[(b) The Registrar and any other person who
assists the Registrar in the exercise and performance of his or her powers,
duties and functions may not disclose any information which he or she has
acquired in the exercise of the powers, performance of the functions or
carrying out of the duties conferred upon, assigned to or imposed upon him or
her under this Chapter, except—
(i) for the purpose of giving effect to the
provisions of this Chapter; or
(ii) when required to do so by any competent
court.]
Objects of Register
[47] 43. The objects
of the Register are to protect children and persons [with mental disabilities] who are mentally disabled against
sexual offenders by –
(a) establishing
and maintaining a record of persons who -
(i) have been convicted of a sexual
offence against a child or a person [with
a mental disability] who is mentally disabled, whether committed
before or after the commencement of this Chapter and whether committed in or
outside the Republic; or
(ii) are
alleged to have committed a sexual offence against a child or a person [with a mental disability] who is
mentally disabled in respect of whom a court, whether before or after the
commencement of this Chapter-
(aa) in the
Republic has made a finding and given a direction in terms of section 77(6) or
78(6) of the Criminal Procedure Act, 1977;
or
(bb) outside
the Republic has made a finding and given a direction contemplated in
subparagraph (aa) in terms of the law
[in] of the country in
question;
(b) informing an employer applying for a certificate as contemplated in this
Chapter whether or not the particulars of an employee contemplated in section [49]45(1)(a) or (b) are contained
in the Register;
(c) informing
a licensing authority applying for a certificate as contemplated in this
Chapter whether or not the particulars of an applicant contemplated in section [51]47 are contained in the
Register; and
(d) informing
the relevant authorities dealing with fostering, kinship care-giving, temporary
safe care-giving, adoption or curatorship applying for a certificate as
contemplated in this Chapter whether or not the particulars of an applicant, as
contemplated in section [52]48,
have been included in the Register.
Persons entitled to apply for certificate[, in
respect of particulars included in Register]
[48]
44. An application for a
prescribed certificate, stating whether or not the particulars of a
person mentioned in the application are recorded in the Register may, solely
for the purpose of complying with any obligation under this Chapter, be made in
the prescribed manner by –
(a) an
employer in respect of an employee as contemplated in section [49]45(1);
(b) a
licensing authority in respect of an applicant as contemplated in section [47]51;
(c) a
relevant authority in respect of an applicant as contemplated in section [48]52;
(d) an
employee contemplated in section [50]46
[in respect of his or her own
particulars];
(e) a
person contemplated in section [51]47
applying for a license or approval to manage or operate any entity, business
concern or trade [relating to having
authority] in relation to the supervision over or care of children [in respect of his or her own particulars];
(f) a
person contemplated in section [52]48
applying to become a foster parent, kinship care-giver, temporary safe
care-giver or adoptive parent [in
respect of his or her own particulars]; or
(g) any
person whose particulars appear on the Register [in respect of his or her own particulars].
Obligations of employers in respect of employees
[49]
45. (1) Any employer who—
(a) at the
date of commencement of this Chapter, has in his or her employment any employee,
may from the date of establishment of the Register, in the prescribed manner,
apply to the Registrar for a prescribed certificate, stating whether or not the
particulars of the employee are recorded in the Register; or
(b) from
the date of establishment of the Register, intends employing an employee, must,
in the prescribed manner, apply to the Registrar for a prescribed certificate,
stating whether or not the particulars of the potential employee are recorded
in the Register.
(2) (a) An employer shall—
(i) subject
to paragraph (d) not continue to
employ an employee contemplated in subsection (1)(a); or
(ii) not
employ an employee contemplated in subsection (1)(b),
whose particulars are recorded in the Register.
(b) An
employer who, during the course of an employment relationship, ascertains that
the particulars of an employee contemplated in subsection (1)(a) has been recorded in the Register,
irrespective of whether such offence was committed during the course of his or
her employment, must, subject to paragraph (d)
immediately terminate the employment of such employee.
(c) Notwithstanding
paragraph (d) an employer must
immediately terminate the employment of an employee who fails to disclose a
conviction of a sexual offence against a child or a person [with a mental disability] who is mentally disabled or that
he or she [has been] is
alleged to have committed a sexual offence against a child or a person [with a mental disability] who is
mentally disabled and who has been dealt with in terms of section
77(6) or 78(6) of the Criminal Procedure Act, 1977, as contemplated in section
50(1).
(d) An
employer must take reasonable steps to prevent an employee whose particulars
are recorded in the Register from continuing to gain access to a child [or children] or a person [or persons with mental disabilities] who
is mentally disabled, in the course of his or her employment, including, if
reasonably possible or practicable to transfer such person from the post or
position occupied by him or her to another post or position: Provided that if any such steps to be taken
will not ensure the safety of a child [or
children] or a person [or persons
with mental disabilities] who is mentally disabled, the employment
relationship, the use of services or [providing]
access, as the case may be, must be terminated immediately.
(4) An employer who fails to comply with any
provision of this section is guilty of an offence and is liable on conviction
to a fine or to imprisonment for a period not exceeding seven years or to both
a fine and such imprisonment.
Obligations of employees
[50]
46. (1) An employee in the employ of an employer at the
commencement of this Chapter, who [during
the course of his or her employment,] is convicted of a sexual offence
against a child or a person [with a
mental disability] who is mentally disabled, or is alleged to have
committed a sexual offence against a child or a person [with a mental disability] who is mentally disabled and who
has been dealt with in terms of section 77(6) or 78(6) of the Criminal
Procedure Act, 1977, irrespective of whether or not such offence was
committed during the course of his or her employment, must without delay
disclose such conviction to his or her employer.
(2) An employee who, after the commencement
of this Chapter, applies for employment, must, if he or she has been convicted
of a sexual offence against a child or a person [with a mental disability] who is mentally disabled or is
alleged to have committed a sexual offence against a child or a person [with a mental disability] who is
mentally disabled and who has been dealt with in terms of section 77(6) or
78(6) of the Criminal Procedure Act, 1977, disclose such conviction or finding
when applying for employment.
(3) An employee who fails to comply with
subsection (1) or (2) is guilty of an offence and is liable on conviction to a
fine or to imprisonment not exceeding seven years or to both a fine and such
imprisonment.
Obligations in respect of license applications
[51]
47. (1) A licensing authority may not grant a
license to or approve the management or operation of any entity, business
concern or trade [relating to having
authority] in relation to the supervision over or care of a child or
a person [with a mental disability] who
is mentally disabled without having determined, by way of an application to
the Registrar for a prescribed certificate, whether or not the
particulars of such person have been recorded in the Register.
(2) A person who, after the commencement of
this Chapter, applies for a license contemplated in subsection (1) to
a licensing authority [for a license
or for approval to manage or operate any entity, business concern or trade
relating to having authority or supervision over or care of children or persons
with mental disabilities] must disclose that he or she has been convicted
of a sexual offence against a child or a person [with a mental disability] who is mentally disabled or that
he or she is alleged to have committed a sexual offence against a child or a
person [with a mental disability] who
is mentally disabled and has been dealt with in terms of section 77(6) or
78(6) of the Criminal Procedure Act, 1977.
([4]3) Any licensing authority or person who
intentionally contravenes any provision of this section is guilty of an offence
and liable on conviction to a fine or to imprisonment for a period not
exceeding seven years or to both a fine and such imprisonment.
Obligations in respect of applications for
fostering, kinship care-giving, temporary safe care-giving, adoption of
children or curatorship
[52]
48. (1) A
relevant authority may not consider an application or approve the appointment
of a person as a foster parent, kinship care-giver, temporary safe care-giver,
an adoptive parent or curator without having determined, by way of an
application to the Registrar for a prescribed certificate, whether or not the
particulars of such person have been recorded in the Register.
(2) A person who, after the commencement of
this Chapter, applies to become a foster parent, kinship care-give, temporary
safe care-giver, an adoptive parent or a curator must disclose that he or she
has been convicted of a sexual offence against a child or a person [with a mental disability] who is
mentally disabled or that he or she is alleged to have committed a sexual
offence against a child or a person [with
a mental disability] who is mentally disabled and has been dealt
with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977.
(3) Any relevant authority
or person who intentionally contravenes any provision of this section is guilty
of an offence and liable on conviction to a fine or to imprisonment for a
period not exceeding seven years or to both a fine and such imprisonment.
Contents of Register
[53] 49. The Register must–
(a) be established and
maintained in the prescribed manner and format;
(b) contain
the following particulars of persons referred to in section 48:
(i) the
title, full names and surname of the person, including any known alias or
nickname and, where applicable, the profession or trade of the person;
(ii) the
last known physical address of the person, and any other contact details,
including a postal address, where applicable;
(iii) the
identity number, passport number and driver’s license number of the person,
where applicable;
(iv) the
sexual offence against a child or a person who is mentally disabled in
respect of which the person has been convicted, the sentence imposed, the date
and place of conviction and sentence, as well as the relevant prisoner identification
number, where applicable;
(v) the
court in which the trial took place and the case
number;
(vi) the name of the medical institution
or medical practitioner of a person and
details of the sexual offence allegedly committed by a person who has
been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure
Act, 1977; and
(vii) any
other particulars as may be prescribed by regulation; and
(c) if the
conviction and sentence took place in a foreign jurisdiction, contain as far as
possible the equivalent information as is contemplated in paragraph (b), as obtained from the relevant
country or any other legal source.
Persons whose names must be included in Register
and related matters
[54]
50. (1) The particulars of the
following persons must be included in the Register:
(a) A person who in terms of this Act or any other law [after the commencement of this Chapter]–
(i) has
been convicted of a sexual offence against a child or a person [with a mental disability] who is
mentally disabled;
(ii) is
alleged to have committed a sexual offence against a child or a person [with a mental disability] who is
mentally disabled in respect of whom a court, has made a finding and given
a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act,
1977;
(iii) [at the commencement of this Chapter]
is serving a sentence of imprisonment or who has served a sentence of
imprisonment as the result of a conviction for a sexual offence against a child
or a person [with a mental disability] who
is mentally disabled; or
(iv) has
a previous conviction for a sexual offence against a child or a person [with a mental disability] who is
mentally disabled or who has not served a sentence of imprisonment for such
offence; and
(b) any person—
(i) who,
in any foreign jurisdiction, has been convicted of any offence equivalent to
the commission of a sexual offence against a child or a person [with a mental disability] who is
mentally disabled;
(ii) who,
in any foreign jurisdiction, has been dealt with in a manner equivalent to that
contemplated in paragraph (a)(ii); or
(iii) whose
particulars appear on an official register in any foreign jurisdiction,
pursuant to a conviction of a sexual offence against a child or a person [with a mental disability] who is
mentally disabled or as a result of an order equivalent to that
contemplated in paragraph [(b)](a)(ii),
whether committed before or after the commencement
of this Chapter.
(2) (a) A
court that has in terms of this Act or any other law —
(i) convicted
a person of a sexual offence against a child or a person [with a mental disability] who is mentally disabled and,
after sentence has been imposed by that court for such offence, in the presence of the convicted
person; or
(ii) made
a finding and given a direction in terms of section 77(6) or 78(6) of the
Criminal Procedure Act, 1977, that the person is by reason of mental illness or
mental defect not capable of understanding the proceedings so as to make a
proper defence or was, by reason of mental illness or mental defect, not
criminally responsible for the act which constituted a sexual offence against a
child or a person [with a mental
disability] who is mentally disabled, in the presence of that
person,
must make an
order that the particulars of the person be included in the Register.
(b) When
making an order contemplated in paragraph (a),
the court must explain the contents and implications of such an order,
including section 45, to the person in question.
(3) Where a court has made an order under
subsection (2)(a), the Registrar of
the High Court or clerk of the magistrate’s court must, where possible notify
the employer in the prescribed manner, of such order and must forthwith
forward the order to the Registrar, together with all the particulars referred
to in section [53]49 of the
person in question, and the Registrar must immediately and provisionally, in
the prescribed manner, enter the particulars of the person concerned in the
Register, pending the outcome of any appeal or review and must, after—
(a) the
period for noting an appeal or taking the matter on review has expired; or
(b) the
appeal or review proceedings have been concluded in the case of an appeal or
review,
either enter
or remove such particulars from the Register, depending on the outcome of the
appeal or review, if any.
(4) Where a court, for whatever reason,
fails to make an order under subsection (2)(a)
the state or any person must immediately bring this omission to the attention
of the court and the court must rectify
its order accordingly.
([4]5) (a) The
Commissioner of Correctional Services must, in the prescribed manner and within three
months after the commencement of this Chapter, forward to the Registrar the
particulars referred to in section [53]49
of every prisoner or former prisoner which he or she has on record, who, at the
commencement of this Chapter, is serving a sentence of imprisonment or who has
served a sentence of imprisonment as the result of a conviction for a sexual
offence against a child and must, where possible, forward the available
particulars of every prisoner or former prisoner which he or she has on record,
who at the commencement of this Chapter, is serving a sentence of imprisonment
or has served a sentence of imprisonment as a result of a conviction for a
sexual offence against a person [with a
mental disability] who is mentally disabled, including an offence
contemplated in section 15 of the Sexual Offences Act, 1957 (Act No. 23 of
1957), and the Registrar must forthwith enter those particulars in the
Register.
(b) The
Commissioner of Correctional Services must, in the prescribed manner and
period, inform each serving prisoner whose particulars have been
forwarded to the Registrar of the implications thereof.
([5]6) The National
Commissioner of the South African Police Service must, in the prescribed manner
and within three months after the commencement of this Chapter, forward to the
Registrar all the available particulars [referred] in his or her possession referred to in section [53]49 of every person, who, at
the commencement of this Chapter, has a previous conviction for a sexual
offence against a child, including, as far as is possible, a conviction for a
sexual offence against a child, and who has a previous conviction for an
offence against a person [with a mental
disability] who is mentally disabled, including an offence
contemplated in section 15 of the Sexual Offences Act, 1957, and the Registrar
must forthwith enter those particulars in the Register.
([6]7) (a) The
Director-General: Health must, in the
prescribed manner and within three months after the commencement of this
Chapter, forward to the Registrar the particulars referred to in section [53]49 of every person, who, at
the commencement of this Chapter, is subject to a direction in terms of section
77(6) or 78(6) of the Criminal Procedure Act, 1977, as the result of an act
which constituted a sexual offence against a child or a person [with a mental disability] who is
mentally disabled and the Registrar must forthwith enter those particulars
in the Register.
(b) The Director-General: Health
must, in the prescribed manner and period, inform each person referred to in
paragraph (a) whose particulars have
been forwarded to the Registrar of the implications thereof.
([7]8) (a) A person whose particulars have been
submitted to the Registrar in terms of this section and whose name or names,
sex, identity number, physical or postal address or other details as
contemplated in section [53]49
have changed, must notify the Registrar of any such change within 14 days after such change.
(b) Any person referred to in paragraph (a)
who intentionally fails to notify the Registrar of any change contemplated in
that paragraph, is guilty of an offence and is liable on conviction to a fine
or to imprisonment for a period not exceeding seven years.
Removal of particulars from Register
[55]
51. (1) Subject to subsections (2) and (3), the particulars of a
person—
(a) who -
(i) has
been sentenced for a conviction of a sexual offence against a child or a person
[with a mental disability] who is
mentally disabled to a term of imprisonment, periodical imprisonment,
correctional supervision or to imprisonment as contemplated in section 276(1)(i) of the Criminal Procedure Act, 1977,
without the option of a fine for a period of at least six months but not
exceeding eighteen months, whether the
sentence was suspended or not, may, on
application as contemplated in subsection (3), be removed from the Register
after a period of ten years has lapsed after that person has been released from
prison or the period of suspension has lapsed;
(ii) has
been sentenced for a conviction of a sexual offence against a child or a person
[with a mental disability] who is
mentally disabled to a term of imprisonment, periodical imprisonment,
correctional supervision or to imprisonment as contemplated in section 276(1)(i) of the Criminal Procedure Act, 1977,
without the option of a fine for a period of six months or less, whether the
sentence was suspended or not, may, on application as contemplated in
subsection (3), be removed from the Register after a period of seven years has
lapsed after that person has been released from prison or the period of
suspension has lapsed; or
(iii) is
alleged to have committed a sexual offence against a child or a person [with a mental disability] who is
mentally disabled in respect of whom a court, whether before or after the
commencement of this Chapter, has made a finding and given a direction in terms
of section 77(6) or 78(6) of the Criminal Procedure Act, 1977, may, on
application as contemplated in subsection (3), be removed from the Register
after a period of five years has lapsed after such person has recovered from
the mental illness or mental defect in question and is discharged in terms of
the Mental Health Care Act, 2002 (Act No. 17 of 2002), from any restrictions
imposed on him or her;
(b) who
has been sentenced for a conviction of a sexual offence against a child or a
person [with a mental disability] who
is mentally disabled to any other form of lesser punishment
or court order may, on application as contemplated in subsection (3), be
removed from the Register after a period of five years has lapsed since the
particulars of that person were included in the Register.
(2) The
particulars of a person who has—
(a) been
sentenced for a conviction of a sexual offence against a child or a person [with a mental disability] who is
mentally disabled to a term of imprisonment, periodical imprisonment,
correctional supervision or to imprisonment as contemplated in section
276(1)(i) of the Criminal Procedure Act, 1977, without the option of a fine for
a period exceeding eighteen months, whether the sentence was suspended or not;
or
(b) two or
more convictions of a sexual offence against a child [or children] or a person [or
persons with mental disabilities] who
is mentally disabled,
may not be
removed from the Register.
(3) (a) A person falling into the categories
contemplated in subsection (1) may apply, in the prescribed manner, to the
Registrar to have his or her particulars removed from the Register.
(b) The
Registrar must, after considering the application, remove the particulars of
the person contemplated in paragraph (a)
from the Register, unless the person concerned
has an investigation or a charge relating to a sexual offence against a child
or a person [with a mental disability] who
is mentally disabled pending against him or her and the relevant
investigation or case has not yet been finalised, in which event the
finalisation of the application must be postponed until the Registrar has, in
the prescribed manner, received information on the outcome of the investigation
or case.
(c) The
Registrar may, at the request of a person whose particulars are included in the
Register, remove those particulars from the Register if the Registrar is
satisfied that the entry of those particulars in the Register was clearly in
error.
Confidentiality and disclosure of information
[56]
52. (1) The Registrar and any other person who assists the
Registrar in the exercise and performance of his or her powers, duties and
functions may not disclose any information which he or she has acquired in the
exercise of the powers, performance of the functions or carrying out of the
duties conferred upon, assigned to or imposed upon him or her under this
Chapter, except—
(i) for the purpose of
giving effect to the provisions of this Chapter; or
(ii) when required to do so
by any competent court.
(2) Except in so far as it may be necessary
for the purpose of this Chapter, the Registrar and any other person who assists
the Registrar in the exercise and performance of his or her powers, duties and
functions, who willfully discloses any information to any other person is
guilty of an offence and is liable on conviction to a fine or to imprisonment
for a period not exceeding three years or to both a fine and such imprisonment.
([2]3) Any person who discloses any information
which he or she has acquired in the exercise of the powers, performance of the
functions or carrying out of the duties conferred upon, assigned to or imposed
upon him or her under this Chapter, except—
(a) for the purpose of giving
effect to the provisions of this Chapter;
or
(b) when required to do so by
any competent court,
is guilty of
an offence and is liable on conviction to a fine or to imprisonment for a
period not exceeding three years or to both a fine and such imprisonment.
([3]4) Except in so
far as it may be necessary for the purposes of this Chapter, any person who willfully
discloses or publishes any information to any other person which he or she has
acquired as a result of an application contemplated in section [48]44 or in any other manner is
guilty of an offence and is liable on conviction to a fine or to imprisonment
for a period not exceeding three years or to both a fine and such imprisonment.
Regulations pertaining to Register
53. (1) The
Minister must, after consultation with the cabinet members responsible for
safety and security, correctional services, social development and health, if
applicable, make regulations relating to—
(a) the
manner and format in which the Register is to be established and maintained as
contemplated in section [46(a)]42(1);
(b) any particulars to be included in the Register, in addition to those
mentioned in section [53]49(b)(i) to (vi);
(c) the manner in which the Commissioner of Correctional Services must
forward particulars of prisoners who are serving a sentence of imprisonment as
the result of a conviction for a sexual offence against a child or a person [with a mental disability] who is
mentally disabled to the Registrar as contemplated in section [54]50(5)(a);
(d) the manner and period within which the Commissioner of Correctional
Services must inform each prisoner whose particulars have been forwarded to the
Registrar as contemplated in section [54]50(5)(b);
(e) the
manner in which the National Commissioner of the South African Police Service
must forward particulars of persons with a previous conviction for a sexual
offence against a child or a person [with
a mental disability] who is mentally disabled to the Registrar as
contemplated in section [54]50(6);
(f) the
manner in which the Director-General:
Health must forward particulars of persons who are subject to a
direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act,
1977, as the result of an act which constituted a sexual offence against a
child or a person [with a mental
disability] who is mentally disabled to the Registrar as
contemplated in section [54]50(7)(a);
(g) the
manner and period within which the Director-General: Health must inform each person whose
particulars have been forwarded to the Registrar as contemplated in section [54]50(7)(b);
(h) the
manner in which persons mentioned in section [47]44 must apply to the Registrar for a certificate;
(i) the format and content of the certificate
contemplated in section [48]44;
(j) persons who may apply for a certificate in terms of section [48]44;
(k) any further category of
employers to whom this Chapter shall apply;
(l) the period within which a certificate contemplated in section [48]44 must be provided to any
person by the Registrar;
(m) access to the Register;
(n) the safe-keeping and disposal of records; and
(o) any
aspect in this Chapter in respect of which regulations may be required or are
necessary.
(2) The provisions of this Chapter shall
apply with the necessary changes to the category of employers and employees in
their employment from the date of publication of the regulations contemplated
in paragraph (1)(k).
(3) Regulations
made in terms of subsection (1) may, in respect of any contravention thereof or
failure to comply therewith, prescribe as a penalty a fine or imprisonment for
a period not exceeding 12 months.
(4) Any
regulation made in terms of this section must be submitted to Parliament at
least thirty days before publication thereof in the Gazette.