Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 introduces a national register for sex offenders.  It includes definitions relevant to the chapter and sets out provisions relating to the following:

• prohibition on types of employment by sex offenders
• establishment of the National Register for Sex Offenders and the designation of the Registrar of the Register
• the objects of the Register
• the persons entitled to apply for a certificate
• the obligations of employers
• the obligation of employees
• obligations in respect of licence applications• obligations in respect of applications for fostering, kinship care-giving, temporary safe care-giving, adoption of children or curatorship
• the contents of the Register
• persons whose names must be included in the Register and related matters
• removal of particulars from the Register
• confidentiality and disclosure of information
• regulations pertaining to the Register

What is a Sex Offender Register?
Sex offender registration is a system designed to allow government authorities to keep track of the residence and activities of sex offenders.  Different types of registers are being used in various countries across the world to protect vulnerable groups.  These include sex offender registers relating to:

• violent sex crimes;
• children; and
• persons who are mentally disabled.

These registers serve different purposes.  Some countries have registers of sex offenders that can be accessed on the internet so that individuals can protect their children by checking to see whether there is a sex offender living in the area.  Other registers are only available to law enforcement personnel and are used for the investigation of crimes.  Some registers are housed within specific government departments, like Social Services, and are used as a record of children who have been abused or neglected to ensure their future protection.  Registers are also kept to ensure that convicted sex offenders are not employed in positions where they will come into contact with children.

The National Register for Sex Offenders - Introduction

Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 came into effect on 16 June 2008 and provides for the establishment of a National Register for Sex Offenders in South Africa.  The Act provides that the National Register must be established within six months of the commencement of this Act.  This has been amended by section 36 of the Judicial Matters Amendment Act 2008, which has extended the date of establishment of the register to 30 June 2009.

In terms of this Register, the particulars of persons, who have been convicted of committing a sexual offence against children or mentally disabled persons, must be included in the Register.  This Register, therefore, focuses on:

• children; and
• persons who are mentally disabled

The objects of the National Register are set out in section 43 of the Act, and aim to protect children and persons who are mentally disabled against sexual offenders by establishing and maintaining a record of persons who have been convicted of committing sexual offences against these two vulnerable groups.  The Register is then to be used to ensure that those persons, who appear on the Register, are prohibited from being employed in positions that provide them with access to children and persons who are mentally disabled.    The Register, therefore, places a prohibition on sex offenders being employed in a position where they will have access to children or persons who are mentally disabled.  Access to the Register is limited to those persons employed to run the Register, and the information is, therefore, not available to members of the community.  In some other countries such as Canada, the United Kingdom, Australia and the United States of America, however, members of the public have access to such registers.  In South Africa the purpose of the NRSO is limited to prevent the employment of sex offenders in positions where they may have easy access to certain vulnerable groups.

Establishment of National Register for Sex Offenders

• The Minister of Justice and Constitutional Development must establish and maintain the National Register for Sex Offenders (hereafter referred to as the NRSO).
• The NRSO will contain the particulars of persons who have been convicted of committing a sexual offence against a child or a person who is mentally disabled.

Objects of Register
The purpose of the Register is to protect children and persons who are mentally disabled against sexual offenders by—

• establishing and maintaining a record of persons who have been convicted of a sexual offence against a child or a person who is mentally disabled;
• informing an employer applying for a certificate whether or not the particulars of an employee are contained in the Register;
• informing a licensing authority applying for a certificate whether or not the particulars of an applicant are contained in the Register; and
• informing the relevant authorities dealing with fostering, kinship care-giving, temporary safe care-giving, adoption or curatorship applying for a certificate whether or not the particulars of an applicant have been included in the Register.

PROVISIONS OF THE ACT
Prohibition placed on sex offenders

Sex Offenders and Children

• The prohibition includes two categories of sex offenders:
  - any person who has been convicted of committing a sexual offence against a child; or
  - any person who is alleged to have committed a sexual offence against a child and has been declared a patient of a Judge in Chambers in terms of section 77(6) or 78(6) of the Criminal Procedure Act 51 of 1977.

 

• The person’s name must also appear on the NRSO.
• Any person who falls into these categories may not:
  - be employed to work with children in any circumstances;
  - hold any position that places him or her in a situation of authority, supervision or care of a child;
  - hold any position that places him or her in a situation where he or she can gain access to a child or places where children are present or congregate;
  - 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
  - become the foster parent, kinship care-giver, temporary safe care-giver or adoptive parent of a child.

Sex Offenders and Persons who are Mentally Disabled
The prohibition includes 2 categories of sex offenders:

• any person who has been convicted of committing a sexual offence against a person who is mentally disabled; and
• any person who is alleged to have committed a sexual offence against a person who is mentally disabled and who has been declared a patient of a Judge in Chambers in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977.
• The person’s name must also appear on the NRSO.
• Any person who falls into these categories may not:
  - be employed to work with a person who is mentally disabled in any circumstances;
  - hold any position that places him or her in a situation of authority, supervision or care of a person who is mentally disabled;
  - hold any position that places him or her in a situation where he or she can gain access to a person who is mentally disabled or places where persons who are mentally disabled  are present or congregate;
  - 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
  - become the curator of a person who is mentally disabled.

Names to be included in the Register
The particulars of the following persons must be included in the Register:

• a person who has been convicted of a sexual offence against a child or a person who is mentally disabled;
• a person who is alleged to have committed a sexual offence against a child or a person who is mentally disabled and who has been declared a patient of a Judge in Chambers;
• a person who is serving a sentence or has already served a sentence of imprisonment as a result of a conviction for a sexual offence against a child or a person who is mentally disabled;
• a person who has a previous conviction for a sexual offence against a child or a person who is mentally disabled and has not served a sentence of imprisonment;
• a person who has been convicted of an equivalent offence in a foreign jurisdiction; and
• a person whose particulars appear on an official register in any foreign jurisdiction as a result of being convicted of a sexual offence against a child or a person who is mentally disabled.

The Court Order
Where a court has convicted a person of a sexual offence against a child or a person who is mentally disabled or declared a person to be a patient of a Judge in Chambers, where the latter is alleged to have committed a sexual offence against a child or a person who is mentally disabled the court must:

• after sentence has been imposed;
• in the presence of the convicted person;
• make an order that the particulars of the person be included in the Register; and
• explain the contents and implications of the order, including the obligations of employers in this regard to the person.

The court order will be completed on Form 5 and will form part of the charge sheet.  Should the court omit to make such an order, there is a duty upon the prosecution or any other person to immediately bring this omission to the attention of the court.


Contents of Register
In order for the Register to be maintained accurately and effectively, certain particulars of the convicted person must be included in the Register.  The following information must be included in the Register, as stipulated by the Act and the Regulations:

• title, full names and surname of the person;
• any known alias or nickname;
• profession or trade of the person;
• ast known physical address of the person;
• any other contact details, including a postal address;
• identity number, passport number and driver's licence number of the person, where applicable;
• the sexual offence for 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;
• the court in which the trial took place and the case number;
• 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
• a set of fingerprints of the offender.

Where the person was convicted and sentenced in another country, information equivalent to the above should be entered into the Register.

Duties of the clerk of the court and the Registrar of the High Court
The clerk of the court and the Registrar of the High Court have two main duties in terms of this section.  They must notify the employer of the convicted person regarding the court order and they must forward the relevant information to the Registrar of the NSOR.

Notifying an employer
Once the court has made an order that the particulars of a person must be included in the Register, the clerk of the court or the Registrar of the High Court must notify the employer that the person’s particulars have been included in the Register.  This must be done by completing Form 6 of the Regulations and forwarding it to the employer.

An employee includes persons who receive any remuneration or benefit for their work as well as those who conduct business as an employer irrespective of whether there is remuneration involved or not.

An employer refers to any public or private organisation, including any club, person, or association, that employs employees who, in the course of their employment, are placed in a position where:

• they work with a child or a person who is mentally disabled;
• they have authority, supervision or care of a child or a person who is mentally disabled person; and/or
• they have 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.

An employer also refers to any person who 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.


Forwarding information to the Registrar
Once the court has made an order that the particulars of a person must be included in the Register, the clerk of the court or the Registrar of the High Court must immediately submit the required information electronically and then forward the original order to the Registrar with the necessary particulars. 

Persons entitled to apply for certificate
An application can be made to the Registrar of the NRSO to determine whether or not the particulars of a person mentioned in the application are recorded in the Register.   The Registrar will then issue a certificate, stating whether the details of this person appear on the Register or not.  Only certain categories of person can apply for a certificate.  These include:

• an employer in respect of an employee
• a licensing authority in respect of an applicant
• a relevant authority (government or municipality) in respect of an applicant
• an employee in respect of his or her own particulars
• a person 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
• a person applying to become a foster parent, kinship care-giver, temporary safe care-giver or adoptive parent in respect of his or her own particulars; and/o
• any person whose particulars appear on the Register in respect of his or her own particulars.

Obligations of employers in respect of employees
The Act places several obligations upon employers. Employers are required to comply with the following:

• Any employer who 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.
• Any employer who intends to employ 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.
• An employer shall not continue to employ an employee or employ a new employee whose name appears on the NRSO.
• If an employer, in the course of an employment relationship, ascertains that the particulars of an employee appear in the Register, the employer must immediately terminate the employment of such employee, unless he or she is able to transfer the person to another post which will not bring him into contact with a child or a person who is mentally disabled.
• 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.  This may mean transferring the person to another post or position, where this is reasonably possible or practicable.  If the transfer will not ensure the safety of a child or a person who is mentally disabled, the employment must be terminated immediately.
• 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.

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
An employee who is or was convicted of a sexual offence against a child or a person who is mentally disabled (including persons who have been declared patients of a Judge in Chambers and who are alleged to have committed a sexual offence against a child or a mentally disabled person) must without delay disclose such conviction or finding to his or her employer.

If a person applies for employment and has a conviction for a sexual offences against a child or a person who is mentally disabled (including patients of a Judge in Chambers as outlined above), that person must disclose the conviction when applying for employment.

An employee who fails to comply with these provisions 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.

There are similar provisions governing licensing authorities and authorities who have to consider applications for fostering, kinship care-giving, temporary safe care-giving, adoption and curatorship.


Removal of particulars from Register
Certain sex offenders can have their names removed from the Register after a particular period of time has elapsed.  The length of the period depends on the original sentence that was imposed.  The categories are as follows:

• 6 – 18 months
  - Where the offender was sentenced 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,  the offender may apply to 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.

• Under 6 months
  - Where the offender has been sentenced 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, the offender may apply to 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.

• Lesser punishment
  - Where the offender has been sentenced to any other form of lesser punishment or court order, the offender may apply to be removed from the Register after a period of five years has lapsed since the particulars of that person were included in the Register.

• Exceeding 18 months
  - Where the offender has been sentenced 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, may not be removed from the Register.

• Two or more convictions
  - Where an offender has two or more convictions of a sexual offence against a child or a person who is mentally disabled, the offender may not be removed from the Register.

• Patient of a Judge in Chambers
  - Where the offender has been declared a patient of a Judge in Chambers as a result of allegedly committing a sexual offence against a child or a person who is mentally disabled, the offender may apply to 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.

On receiving the application, the Registrar must, after considering the application, remove the particulars of the person 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.  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.

There is also obviously a provision in the Act that a person may apply to the Registrar to have his or her particulars removed 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
The Act places great emphasis on the confidentiality of information.  Any person who assists the Registrar in the performance of duties relating to the NRSO may not disclose any information which has been acquired in carrying out these duties.  Any person who willfully discloses any of this information to another will be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both the imprisonment and the fine.

The only time that this rule of confidentiality may be broken is when the person is using the information to give effect to the provisions of the Act or when they are required by a competent court to disclose the information. 


HOW THE REGISTER WILL OPERATE

Appointment of Registrar and Personnel
In terms of the Act, the Minister of Justice and Constitutional Development must appoint a Registrar for the National Register for Sex Offenders.  The powers, duties and functions of the Registrar are contained in Regulation 13.   These include the following:

• receiving the particulars of persons and entering them on the Register;
• receiving and processing applications for certificates;
• issuing certificates;
• introducing security measures to ensure the confidentiality of information on the database;
• reporting any unauthorized access to or tampering with the information in the database;
• assisting with the development of procedures in terms of which particulars must be forwarded to the Registrar and how they must be updated and removed where necessary;
• receiving and processing applications for the removal of particulars of certain persons from the Register; and
• where applicable, removing the particulars of certain persons from the Register.

The Regulations also make provision for personnel to assist the Registrar.  These officials will either be designated from officials in the employ of the Department of Justice or may include further appointments where necessary.  In practice, it would seem that certain clerks of the court and Registrars of the High Court will be designated to perform this function.


Electronic Format
In terms of the Regulations, the National Register for Sex Offenders must be kept in electronic format, which will form part of the electronic infrastructure of the Department of Justice and Constitutional Development and the courts.

The format will enable information to be facilitated between the clerks of the court and the Registrars of the High Court and the Registrar of the NRSO.

To comply with confidentiality requirements, only the Registrar of the NRSO and the personnel of the Registrar will have access to the data base of the Register.  Security is a vital component of the system to ensure the confidentiality of information and to protect the information from unauthorised access by any person, so only users with the necessary permission will be able to perform certain actions.

Procedure to be followed

• The court will make an order (Form 5) that the particulars of a person must be included on the National Register for Sex Offenders.
• When the Registrar of the High Court or the clerk of the court receives this order, they must immediately:
  - notify the convicted person’s employer, where possible (form 6);
  - capture the particulars of the person on the electronic database; and
  - forward the original order together with the particulars to the Registrar of the NRSO.
• The Registrar of the NRSO will immediately be alerted about the information that has been placed on the system by Registrars of the High Court and clerks of the court.
• The Registrar of the NRSO must, when he or she receives the original order, confirm the information that has been captured on the database and enter the name of the person on the Register.

It should be noted that, when clerks of the court and Registrars of the High Court capture the information on the electronic database, the status of the registration will be placed in a pending status until the Registrar of the NRSO accepts the contents of the registration.  

The system will notify the Registrar of the NRSO, via e-mail, that the particulars of a new offender need to be placed on the Register.  The Registrar of the NRSO will then review the information captured against the Form 5 that has been received from the court.  The Registrar of the NRSO then accepts the information and the offender’s details are placed in the Register and the registration status is changed to active.

Court officials may search for an offender and enquire about the information regarding an offender that has been entered by that specific court while the registration is in pending status.  Once the registration has been accepted by the Registrar, court officials will no longer be able to access the offender’s details.

The database makes provision for the following information to be captured on the system:

Registration Information

• Form 5 received date
• Registration date
• Registration status

Offender’s Information

• Name
• Surname
• Title
• Alias/ nicknames
• Profession/ trade
• Employed Y/N
• ID number or passport number
• Drivers licence number
• Physical address
• Postal address
• Telephone number
• Mobile number
• E-mail addres
• Nationality
• Race
• Gender
• Fingerprint number

Employer Information

• Business name
• Business type
• Contact name
• Contact surname
• Title
• Profession/ trade
• Physical address
• Postal address/ postal code
• E-mail address
• Telephone number
• Mobile number

Conviction Information

• Sexual offence convicted of
• Date of sentence
• Sentence imposed
• Court type
• Court name
• Court case number
• CAS number
• ICMS Criminal URN (unique reference number)
• Prisoner identification number

THE NATIONAL CHILD PROTECTION REGISTER IN TERMS OF THE CHILDREN’S ACT
The provisions of the National Child Protection Register (hereafter referred to as the NCPR), as provided for in the Children’s Act 38 of 2005 should not be confused with the National Register for Sex Offenders created by the Act.  The NCPR consists of two parts:

• Part A is a record of all reports of abuse or deliberate neglect of children made to the Director-General of Social Development, all convictions of all persons on charges involving the abuse or deliberate neglect of children and all findings by a children’s court that a child is in need of care and protection because of abuse or deliberate neglect.  The purpose of Part A is, inter alia, to have records of abuse or deliberate neglect inflicted on specific children, the circumstances surrounding such abuse or deliberate neglect and to use this information to protect these children from further abuse or neglect
• Part B is a record of persons found in terms of section 120 to be unsuitable to work with children and to use this information to protect children in general against abuse from these persons.

Some of the differences between the two registers are highlighted below:

• Whereas the NRSO provides for the appointment of a Registrar of the Register, the NCPR and all functions and duties related thereto is the responsibility of the Director-General of Social Services.
• The Act and the NRSO place emphasis on sexual abuse and its aim is to protect children as well as persons who are mentally disabled.  The Children’s Act and the NCPR focuses on all types or abuse or deliberate neglect, and is only applicable to child victims.
• The outcomes of the NRSO are reflected in certificates issued by the Registrar, whereas the Director-General issues letters in pursuance of applications in terms of the NCPR.
• The NRSO also includes convictions for sexual offences in foreign jurisdictions, while this is not the case with the NCPR.
• In terms of the Act an application by a person whose name appears on the Register, for the removal of his name from the Register is considered by the Registrar.  In terms of the Children’s Act such an application may be considered by any court (including a children’s court), the Director-General (if the entry was made in error) or the High Court if the Director-General refuses an application where the entry was allegedly made in error).
• The particulars of persons in the NRSO may be removed only when a certain number of years have lapsed after they have been released from prison or the period of suspension has lapsed.  These periods vary according to the duration of the sentence (ten years, seven years, five years and three years).  The particulars of certain persons may never be removed from the Register.  In terms of the Children’s Act such an application may only be lodged after at least five years have lapsed since the entry was made.  Furthermore, the entry of only a person who has been convicted more than once of an offence with regard to a child may not be removed form the NCPR.