| (1) |
The particulars of the following persons must be included in the Register: |
| (ii) |
is alleged to have committed a sexual offence 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; or |
| (iv) |
has a previous conviction for a sexual offence or who has not served a sentence of imprisonment for such offence; and |
| (i) |
who, in any foreign jurisdiction, has been convicted of any offence equivalent to the commission of a sexual offence; |
| (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 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.
[Section 50(1) substituted by section 23(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2021 (Act No. 13 of 2021), GG45823, dated 28 January 2022 - effective 31 July 2022 as per Proclamation Notice R.79, GG47105, dated 29 July 2022]
(2)
| (i) |
convicted a person of a sexual offence 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, 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.
[Section 50(2)(a) substituted by section 23(b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2021 (Act No. 13 of 2021), GG45823, dated 28 January 2022 - effective 31 July 2022 as per Proclamation Notice R.79, GG47105, dated 29 July 2022]
| (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 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, 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. |
[Section 50(2)(c) substituted by section 23(c) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2021 (Act No. 13 of 2021), GG45823, dated 28 January 2022 - effective 31 July 2022 as per Proclamation Notice R.79, GG47105, dated 29 July 2022]
| (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. |
[Section 50(2)(d) inserted by section 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. |
[Section 50(4) substituted by section 7(c) of Act No. 5 of 2015]
(5)
| (a) |
The National Commissioner of Correctional Services must, in the prescribed manner, 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, as referred to in paragraph (a) of the definition of ‘sexual offence’ in section 40, five years preceding the commencement of this Chapter, and the Registrar must forthwith enter those particulars in the Register. |
[Section 50(5)(a) substituted by section 23(d) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2021 (Act No. 13 of 2021), GG45823, dated 28 January 2022 - effective 31 July 2022 as per Proclamation Notice R.79, GG47105, dated 29 July 2022]
| (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. |
[Section 50(5) substituted by section 37 of Act No. 66 of 2008]
| (6) |
The National Commissioner of the South African Police Service must, in the prescribed manner, 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, as referred to in paragraph (a) of the definition of ‘sexual offence’ in section 40, five years preceding the commencement of this Chapter, and the Registrar must forthwith enter those particulars in the Register. |
[Section 50(6) substituted by section 23(e) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2021 (Act No. 13 of 2021), GG45823, dated 28 January 2022 - effective 31 July 2022 as per Proclamation Notice R.79, GG47105, dated 29 July 2022]
(7)
| (a) |
The Director-General: Health must, in the prescribed manner, forward to the Registrar the particulars referred to in section 49 of every person, who, at the commencement of this Chapter or in the period of five years preceding the commencement of this Chapter, is or was 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, as referred to in paragraph (a) of the definition of ‘sexual offence’ in section 40, and the Registrar must forthwith enter those particulars in the Register. |
[Section 50(7)(a) substituted by section 23(f) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2021 (Act No. 13 of 2021), GG45823, dated 28 January 2022 - effective 31 July 2022 as per Proclamation Notice R.79, GG47105, dated 29 July 2022]
| (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. |
[Section 50(7) substituted by section 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. |
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4
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In J v National Director of Public Prosecutions and Others 2014 (2) SACR 1 (CC), section 50(2)(a) was declared inconsistent with the Constitution and invalid to the extent that it unjustifiably limits the right of child sex offenders to have their best interests considered of paramount importance. The declaration of invalidity was suspended for a period of 15 months to afford parliament the opportunity to correct the defect in the light of this judgment.
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Broad-Based Black Economic Empowerment Act, 2003
