IMPLICATION OF INCLUSION OF PARTICULARS IN THE NATIONAL REGISTER FOR SEX OFFENDERS
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1.
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National Register for Sex Offenders: |
The Minister of Justice and Correctional Services has established a National Register for Sex Offenders containing particulars of persons convicted of any sexual offence or are alleged to have committed a sexual offence and who have been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977.
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2.
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Implication of inclusion of particulars in Register: |
| 2.1 |
A person who has been convicted of the commission of a sexual offence against a person who is vulnerable may not— |
| (a) |
under any circumstances be employed to work with a person who is vulnerable; |
| (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 person who is vulnerable, or which, in any other manner, places him or her in a position of authority, supervision or care of a person who is vulnerable, or where he or she is able to gain access to a person who is vulnerable; |
| (c) |
be granted a licence or be given approval to manage or operate any entity, business concern or trade in relation to the supervision or care of a person who is vulnerable; or |
| (d) |
become the foster parent, kinship care-giver, temporary safe care-giver, adoptive parent, or curator of a person who is vulnerable. |
2.2
| (a) |
An employee in the employ of an employer must without delay disclose a conviction referred to in 2.1 above, to his or her employer. |
| (b) |
An employee who applies for employment, must, if he or she has been convicted of an offence referred to in 2.1 above, disclose such conviction when applying for employment. |
| (c) |
An employee who fails to comply with this obligation 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. |
2.3
| (a) |
A person who applies for approval to manage or operate any entity, business concern or trade in relation to the supervision or care of a person who is vulnerable must disclose that he or she has been convicted of a sexual offence. |
| (b) |
A person who contravenes the above obligation 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. |
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3.
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Removal of particulars from Register: |
Section 51 of the Act provides as follows:
"51.
| (1) |
Subject to subsections (2), (2A) and (3), the particulars of a person— |
| (i) |
has been sentenced for a conviction of a sexual offence 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 20 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 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 14 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 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 ten 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 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 ten 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 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 18 months, whether the sentence was suspended or not; or |
| (b) |
two or more convictions of a sexual offence, may not be removed from the Register. |
| (2A) |
A person falling into the categories contemplated in subsection (1) or (2), 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; and |
| (ii) |
submitting to the court an affidavit by him or her stating that no charge relating to a sexual offence 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; and |
| (ii) |
submitting to the court an affidavit by him or her stating that no charge relating to a sexual offence is pending against him or her. |
| (2B) |
The periods applicable in subsection (1) should be reduced by half if the person was a child at the time of the commission of the offence. |
(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 a charge relating to a sexual offence pending against him or her and the relevant 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 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. |
| (4) |
Any person who has qualified for the removal of his or her particulars from the Register before the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, 2021, may submit an application to the Registrar in terms of subsection (3)(a) and the Registrar must consider the application as if the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, 2021, had not commenced. |
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The reference to the word “prescribed” in section 51(3) of the Act means prescribed by the Regulations made by the Minister of Justice and Correctional services in terms of section 67 read with section 53 of the Act." |
[Form 2 of Annexure B substituted by section 8 of Notice No. R.2383, GG46736, dated 19 August 2022]
Older Persons Act, 2006
