Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/2015-07-07/Chapter 6

by enacted by the Parliament of South Africa

Chapter 6

National Register for Sex Offenders

Definitions

40. For purposes of this Chapter, and unless the context indicates otherwise—

“certificate” means a certificate contemplated in section 44;

“employee” means—

(a)

any person who applies to work for or works for 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, whether or not he or she is entitled to receive any remuneration, reward, favour or benefit;

“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; or

(ii)

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 will gain access to a child 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 who is mentally disabled or will gain access to a person who is mentally disabled or places where persons 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—

(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 a person who is mentally disabled or working with or will gain 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; or

(ii)

owns, 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 relating to the supervision over or care of a child or a person who is mentally disabled or working with or who gains 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,

and “employ”, “employing”, “employed” and “employment relationship” have corresponding meanings;

“licensing authority” means any authority which is responsible for granting licences or approving the management or operation of any entity, business concern or trade relating to the supervision over or care of a child or a person who is mentally disabled;

“Register” means the National Register for Sex Offenders established under section 42(1);

“Registrar” means the Registrar of the National Register for Sex Offenders contemplated in section 42(2); and

“relevant authority” means any—

(a)

department of state or administration in the national or provincial sphere of government or any municipality in the local sphere erf government; or

(b)

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 by certain persons who have committed sexual offences against children and persons who are mentally disabled

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 in any circumstances;

(b)

hold any position, related to his or her employment, or for any commercial benefit which in any manner places him or her in any position of authority, supervision or care of a child, or which, in any other manner, places him or her in a position of authority, supervision or care of a child or where he or she gains access to a child or places where children are present or congregate;

(c)

be granted a licence or be given approval to manage or operate any entity, business concern or trade in relation to the supervision over or care of a child or where children are present or congregate; 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 who is mentally disabled or is alleged to have committed a sexual offence against a person who is mentally disabled 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 who is mentally disabled in any circumstances;

(b)

hold any position, related to his or her employment, or for any commercial benefit which in any manner places him or her in a position of authority, supervision or care of a person 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 who is mentally disabled or where he or she gains access to a person who is mentally disabled or places where persons who are mentally disabled are present or congregate;

(c)

be granted a licence or be given approval to manage or operate any entity, business concern or trade in relation to the supervision over or care of a person who is mentally disabled or where persons who are mentally disabled are present or congregate; or

(d)

become the curator of a person who is mentally disabled.

Establishment of National Register for Sex Offenders and designation of Registrar of Register

42. (1) A National Register for Sex Offenders containing particulars of persons convicted of any sexual offence against a child or a person who is mentally disabled or are alleged to have committed a sexual offence against a child or a person 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, before 30 June 2009, and, in accordance with the provisions of this Chapter and the regulations made thereunder, be established and maintained by the Minister.

[Sub-s. (1) substituted by s. 36 of Act No. 66 of 2008.]

(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) 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.

Objects of Register

43. The objects of the Register are to protect children and persons 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 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 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 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 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 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 48, have been included in the Register.

Persons entitled to apply for certificate

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 45(1);

(b)

a licensing authority in respect of an applicant as contemplated in section 47(1);

(c)

a relevant authority in respect of an applicant as contemplated in section 48(1);

(d)

an employee contemplated in section 46(1) and (2) in respect of his or her own particulars;

(e)

a person contemplated in section 47(2) applying for a licence or approval to manage or operate any entity, business concern or trade in relation to the supervision over or care of children or persons who are mentally disabled in respect of his or her own particulars;

(f)

a person contemplated in section 48(2) 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.

Enquiries for purposes of expungement applications in terms of Criminal Procedure Act, 1977

44A. (1) For the purposes of section 271B of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), the Director-General: Justice and Constitutional Development may enquire from the Registrar whether or not the particulars of a person are contained in the Register and whether or not that person's particulars have been removed from the Register in terms of section 51(1) or (3)(c), as the case may be.

(2) Subject to section 52, the Registrar must respond to the enquiry contemplated in subsection (1) in writing within 21 working days and must indicate whether or not the particulars of the person concerned are contained in the Register or whether or not that person's particulars have been removed from the Register in terms of section 51(1) or (3)(c), as the case may be.

[S. 44A inserted by s. 32 of Act No. 42 of 2013.]

Obligations of employers in respect of employees

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 who is mentally disabled or that he or she is alleged to have committed a sexual offence against a child or a person 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 41.

(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 a person 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 a person who is mentally disabled, the employment relationship, the use of services or access, as the case may be, must be terminated immediately.

(3) 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

46. (1) An employee in the employ of an employer at the commencement of this Chapter, who is or was convicted of a sexual offence against a child or a person who is mentally disabled, or is alleged to have committed a sexual offence against a child or a person 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 or allegedly committed during the course of his or her employment, and whose particulars are included or are to be included in the Register, must without delay disclose such conviction or finding to his or her employer.

[Sub-s. (1) substituted by s. 4(a) of Act No. 5 of 2015.]

(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 who is mentally disabled or is alleged to have committed a sexual offence against a child or a person 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, and whose particulars are included or are to be included in the Register, disclose such conviction or finding when applying for employment.

[Sub-s. (2) substituted by s. 4(b) of Act No. 5 of 2015.]

(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 licence applications

47. (1) A licensing authority may not grant a licence to or approve the management or operation of any entity, business concern or trade in relation to the supervision over or care of a child or a person 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 licence contemplated in subsection (1) to a licensing authority, and whose particulars are included or are to be included in the Register, must disclose that he or she has been convicted of a sexual offence against a child or a person who is mentally disabled or that he or she is alleged to have committed a sexual offence against a child or a person who is mentally disabled and has been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977.

[Sub-s. (2) substituted by s. 5 of Act No. 5 of 2015.]

(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

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-giver, temporary safe care-giver, an adoptive parent or a curator, and whose particulars are included or are to be included in the Register, must disclose that he or she has been convicted of a sexual offence against a child or a person who is mentally disabled or that he or she is alleged to have committed a sexual offence against a child or a person who is mentally disabled and has been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977.

[Sub-s. (2) substituted by s. 6 of Act No. 5 of 2015.]

(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

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 50:

(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 licence 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

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—

(i)

has been convicted of a sexual offence against a child or a person who is mentally disabled;

(ii)

is alleged to have committed a sexual offence against a child or a person 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)

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 who is mentally disabled; or

(iv)

has a previous conviction for a sexual offence against a child or a person 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 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 who is mentally disabled or as a result of an order equivalent to that contemplated in paragraph (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 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 who is mentally disabled, in the presence of that person,

must, subject to paragraph (c), make an order that the particulars of the person be included in the Register.

[Para. (a) substituted by s. 7(a) of Act No. 5 of 2015.]

(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.

(c) If a court has, in terms of this Act or any other law, convicted a person (“A”) of a sexual offence referred to in paragraph (a)(i) and A was a child at the time of the commission of such offence, or if a court has made a finding and given a direction referred to in paragraph (a)(ii) in respect of A who was a child at the time of the alleged commission of the offence, the court may not make an order as contemplated in paragraph (a) unless—

(i)

the prosecutor has made an application to the court for such an order;

(ii)

the court has considered a report by the probation officer referred to in section 71 of the Child Justice Act, 2008, which deals with the probability of A committing another sexual offence against a child or a person who is mentally disabled, as the case may be, in future;

(iii)

A has been given the opportunity to address the court as to why his or her particulars should not be included in the Register; and

(iv)

the court is satisfied that substantial and compelling circumstances exist based upon such report and any other evidence, which justify the making of such an order.

[Para. (c) inserted by s. 7(b) of Act No. 5 of 2015.]

(d) In the event that a court finds that substantial and compelling circumstances exist which justify the making of an order as contemplated in paragraph (a), the court must enter such circumstances on the record of the proceedings.

[Para. (d) inserted by s. 7(b) of Act No. 5 of 2015.]

(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 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), in respect of any person other than a person referred to in subsection (2)(c), the prosecuting authority or any person must immediately or at any other time bring this omission to the attention of the court and the court must make such order.

[Sub-s. (4) substituted by s. 7(c) of Act No. 5 of 2015.]

(5) (a) The National Commissioner of Correctional Services must, in the prescribed manner and at least three months before the establishment of the Register referred to in section 42, forward to the Registrar the particulars referred to in section 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, including an offence referred to in section 14 of the Sexual Offences Act, 1957 (Act No. 23 of 1957), 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 who is mentally disabled, including an offence referred to in section 15 of the Sexual Offences Act, 1957, and the Registrar must forthwith enter those particulars in the Register.

(b) The National 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.

[Sub-s. (5) substituted by s. 37 of Act No. 66 of 2008.]

(6) The National Commissioner of the South African Police Service must, in the prescribed manner and at least three months before the establishment of the Register referred to in section 42, forward to the Registrar all the available particulars in his or her possession referred to in section 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, an offence referred to in section 14 of the Sexual Offences Act, 1957, and who has a previous conviction for a sexual offence against a person who is mentally disabled, including, as far as is possible, an offence referred to in section 15 of the Sexual Offences Act, 1957, and the Registrar must forthwith enter those particulars in the Register.

[Sub-s. (6) substituted by s. 37 of Act No. 66 of 2008.]

(7) (a) The Director-General: Health must, in the prescribed manner and at least three months before the establishment of the Register referred to in section 42, forward to the Registrar the particulars referred to in section 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 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.

[Sub-s. (7) substituted by s. 37 of Act No. 66 of 2008.]

(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 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

51. (1) Subject to subsections (2), (2A) 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 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 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 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; or

(b)

who has been sentenced for a conviction of a sexual offence against a child or a person 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.

[Sub-s. (1) amended by s. 8(a) of Act No. 5 of 2015.]

(2) The particulars of a person who has—

(a)

been sentenced for a conviction of a sexual offence against a child or a person 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 a person who is mentally disabled,

may not be removed from the Register.

(2A) A person falling into the categories contemplated in subsection (1), who was a child at the time of the commission of the offence concerned and who was convicted of such offence or a person who was a child at the time of the alleged commission of the offence and 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—

(a)

before the implementation of this Chapter, may, at any time before the expiration of the periods referred to in subsection (1), apply to a court for an order that his or her particulars must be removed from the Register by—

(i)

addressing the court on the reasons for such application and showing good cause why it is unlikely that he or she will commit another sexual offence against a child or a person who is mentally disabled, as the case may be; and

(ii)

submitting to the court an affidavit by him or her stating that no charge relating to a sexual offence against a child or a person who is mentally disabled, as the case may be, is pending against him or her; or

(b)

after the implementation of this Chapter, may, at any time before the expiration of the periods referred to in subsection (1), apply to the court referred to in section 50(2)(c) for an order that his or her particulars must be removed from the Register by—

(i)

addressing the court on the reasons for such application and showing good cause why it is unlikely that he or she will commit another sexual offence against a child or a person who is mentally disabled, as the case may be; and

(ii)

submitting to the court an affidavit by him or her stating that no charge relating to a sexual offence against a child or a person who is mentally disabled, as the case may be, is pending against him or her.

[Sub-s. (2A) inserted by s. 8(b) of Act No. 5 of 2015.]

(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 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

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—

(a)

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

(b)

when required to do so by any competent court.

(2) Except in so far as it may be necessary for the purposes of this Chapter, 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.

(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.

(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 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 42(1);

(b)

any particulars to be included in the Register, in addition to those mentioned in section 49(b)(i) to (vi);

(c)

the manner in which the National 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 who is mentally disabled to the Registrar as contemplated in section 50(5)(a);

(d)

the manner and period within which the National Commissioner of Correctional Services must inform each prisoner whose particulars have been forwarded to the Registrar as contemplated in section 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 who is mentally disabled to the Registrar as contemplated in section 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 who is mentally disabled to the Registrar as contemplated in section 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 50(7)(b);

(h)

the manner in which persons mentioned in section 44 must apply to the Registrar for a certificate;

(i)

the format and content of the certificate contemplated in section 44;

(j)

persons who may apply for a certificate in terms of section 44;

(k)

any further category of employers to whom this Chapter shall apply;

(l)

the period within which a certificate contemplated in section 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 subsection (l)(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 30 days before publication thereof in the Gazette.