Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/2014-01-22/Chapter 7

by enacted by the Parliament of South Africa

Chapter 7

General provisions

Part 1: Miscellaneous offences: Obligation to report commission of sexual offences against children or persons who are mentally disabled and attempt, conspiracy, incitement or inducing another person to commit sexual offence

Obligation to report commission of sexual offences against children or persons who are mentally disabled

54. (1) (a) A person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official.

(b) A person who fails to report such knowledge as contemplated in paragraph (a), is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

(2) (a) A person who has knowledge, reasonable belief or suspicion that a sexual offence has been committed against a person who is mentally disabled must report such knowledge, reasonable belief or suspicion immediately to a police official.

(b) A person who fails to report such knowledge, reasonable belief or suspicion as contemplated in paragraph (a), is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

(c) A person who in good faith reports such reasonable belief or suspicion shall not be liable to any civil or criminal proceedings by reason of making such report.

Attempt, conspiracy, incitement or inducing another person to commit sexual offence

55. Any person who—

(a)

attempts;

(b)

conspires with any other person; or

(c)

aids, abets, induces, incites, instigates, instructs, commands, counsels or procures another person,

to commit a sexual offence in terms of this Act, is guilty of an offence and may be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.

Part 2: Defences and sentencing, inability of children under 12 years and persons who are mentally disabled to consent to sexual acts, other evidentiary matters and extra-territorial jurisdiction

Defences

[Heading of s. 56 substituted by s. 4(a) of Act No. 6 of 2012.]

56. (1) Whenever an accused person is charged with an offence under section 3, 4, 5, 6 or 7 it is not a valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant.

(2) Whenever an accused person is charged with an offence under—

(a)

section 15 or 16, it is, subject to subsection (3), a valid defence to such a charge to contend that the child deceived the accused person into believing that he or she was 16 years or older at the time of the alleged commission of the offence and the accused person reasonably believed that the child was 16 years or older; or

(b)

section 16, it is a valid defence to such a charge to contend that both the accused persons were children and the age difference between them was not more than two years at the time of the alleged commission of the offence.

(3) The provisions of subsection (2)(a) do not apply if the accused person is related to the child within the prohibited incest degrees of blood, affinity or an adoptive relationship.

(4) A person (“A”) may not be convicted of an offence in terms of section 12 if, at the time when the act of sexual penetration was first committed—

(a)

A was below the age of 18 years; and

(b)

the other person (“B”) exercised power or authority over A or a relationship of trust existed between A and B.

(5) A person may not be convicted of an offence in terms of section 17(4) or (5) or section 23(4) or (5) or section 54, if that person is—

(a)

a child; and

(b)

not a person contemplated in section 17(1) and (2) or 23(1) and (2), as the case may be.

(6) It is not a valid defense to a charge under section 20(1), in respect of a visual representation that—

(a)

the accused person believed that a person shown in the representation that is alleged to constitute child pornography, was or was depicted as being 18 years or older unless the accused took all reasonable steps to ascertain the age of that person; and

(b)

took all reasonable steps to ensure that, where the person was 18 years or older, the representation did not depict that person as being under the age of 18 years.

[Sub-s. (7) deleted by s. 4(b) of Act No. 6 of 2012.]

(8) A person may not be convicted of an offence in terms of section 9 or 22 if that person commits such act in compliance with and in the interest of a legitimate cultural practice.

Sentencing

56A. (1) A court shall, if—

(a)

that or another court has convicted a person of an offence in terms of this Act; and

(b)

a penalty is not prescribed in respect of that offence in terms of this Act or by any other Act,

impose a sentence, as provided for in section 276 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), which that court considers appropriate and which is within that court's penal jurisdiction.

(2) If a person is convicted of any offence under this Act, the court that imposes the sentence shall consider as an aggravating factor the fact that the person—

(a)

committed the offence with the intent to gain financially, or receive any favour, benefit, reward, compensation or any other advantage; or

(b)

gained financially, or received any favour, benefit, reward, compensation or any other advantage,

from the commission of such offence.

[S. 56A inserted by s. 5 of Act No. 6 of 2012.]

Inability of children under 12 years and persons who are mentally disabled to consent to sexual acts

57. (1) Notwithstanding anything to the contrary in any law contained, a male or female person under the age of 12 years is incapable of consenting to a sexual act.

(2) Notwithstanding anything to the contrary in any law contained, a person who is mentally disabled is incapable of consenting to a sexual act.

Evidence of previous consistent statements

58. Evidence relating to previous consistent statements by a complainant shall be admissible in criminal proceedings involving the alleged commission of a sexual offence: Provided that the court may not draw any inference only from the absence of such previous consistent statements.

Evidence of delay in reporting

59. In criminal proceedings involving the alleged commission of a sexual offence, the court may not draw any inference only from the length of any delay between the alleged commission of such offence and the reporting thereof.

Court may not treat evidence of complainant with caution on account of nature of offence

60. Notwithstanding any other law, a court may not treat the evidence of a complainant in criminal proceedings involving the alleged commission of a sexual offence pending before that court, with caution, on account of the nature of the offence.

Extra-territorial jurisdiction

61. (1) Even if the act alleged to constitute a sexual offence or other offence under this Act occurred outside the Republic, a court of the Republic, whether or not the act constitutes an offence at the place of its commission, has, subject to subsections (4) and (5), jurisdiction in respect of that offence if the person to be charged—

(a)

is a citizen of the Republic;

(b)

is ordinarily resident in the Republic;

(c)

was arrested in the territory of the Republic, or in its territorial waters or on board a ship or aircraft registered or required to be registered in the Republic at the time the offence was committed;

(d)

is a company, incorporated or registered as such under any law, in the Republic; or

(e)

any body of persons, corporate or unincorporated, in the Republic.

(2) Subject to subsections (4) and (5), any act alleged to constitute a sexual offence or other offence under this Act and which is committed outside the Republic by a person, other than a person contemplated in subsection (1), is, whether or not the act constitutes an offence at the place of its commission, deemed to have been committed in the Republic if that—

(a)

act was committed against a person referred to in paragraphs (a) or (b) of subsection (1);

(b)

person is found in the Republic; and

(c)

person is, for any reason, not extradited by the Republic or if there is no application to extradite that person.

(3) Any offence committed in a country outside the Republic as contemplated in subsection (1) or (2), is, for purposes of determining the jurisdiction of a court to try the offence, deemed to have been committed—

(a)

at the place where the complainant is ordinarily resident; or

(b)

at the accused person's principal place of business.

(4) No prosecution may be instituted against a person in terms of this section with respect to conduct which formed the basis of an offence under this Act in respect of which such person has already been convicted or acquitted by a court of another jurisdiction.

(5) The institution of a prosecution in terms of this section must be authorised in writing by the National Director of Public Prosecutions.

Part 3: National policy framework

National policy framework

62. (1) The Minister must, after consultation with the cabinet members responsible for safety and security, correctional services, social development and health and the National Director of Public Prosecutions, adopt a national policy framework, relating to all matters dealt with in this Act, to—

(a)

ensure a uniform and co-ordinated approach by all Government departments and institutions in dealing with matters relating to sexual offences;

(b)

guide the implementation, enforcement and administration of this Act; and

(c)

enhance the delivery of service as envisaged in this Act by the development of a plan for the progressive realisation of services for victims of sexual offences within available resources.

(2) The Minister must—

(a)

before 31 March 2009, adopt and table the policy framework in Parliament;

(b)

publish the policy framework in the Gazette within one month after it has been tabled in Parliament;

(c)

review the policy framework within five years after its publication in the Gazette and at least once every five years thereafter; and

(d)

amend the policy framework when required, in which case the amendments must be tabled in Parliament and published in the Gazette, as provided for in paragraph (b).

[Sub-s. (2) substituted by s. 38 of Act No. 66 of 2008.]

Establishment of Inter-sectoral Committee

63. (1) There is hereby established a Committee to be known as the Inter-sectoral Committee for the Management of Sexual Offence Matters.

(2) The Committee shall consist of—

(a)

the Director-General: Justice and Constitutional Development, who shall be the chairperson of the Committee;

(b)

the National Commissioner of the South African Police Service;

(c)

the National Commissioner of Correctional Services;

(d)

the Director-General: Social Development;

(e)

the Director-General: Health; and

(f)

the National Director of Public Prosecutions.

(3) The members of the Committee may designate an alternate to attend a meeting of the Committee in their place.

(4) (a) The members of the Committee shall designate one of its members as deputy chairperson of the Committee, and when the chairperson is not available, the deputy chairperson shall act as chairperson.

(b) If neither the chairperson nor deputy chairperson is available, the members present at a meeting shall elect a person from their own ranks to preside at that meeting.

Meetings of Committee

64. (1) The Committee shall meet at least twice every year and meetings shall be held at a time and place determined by the chairperson.

(2) The procedure, including the manner in which decisions shall be taken, to be followed at meetings of the Committee and the manner in which the Committee shall conduct its affairs shall be determined by the Committee.

(3) The Committee shall report in writing on every meeting to the Minister within one month of such meeting.

Responsibilities, functions and duties of Committee

65. (1) The Committee shall be responsible for developing and compiling a draft national policy framework, as contemplated in section 62(1), which must include guidelines for—

(a)

the implementation of the priorities and strategies contained in the national policy framework;

(b)

measuring progress on the achievement of the national policy framework objectives;

(c)

ensuring that the different organs of state comply with the primary and supporting roles and responsibilities allocated to them in terms of the national policy framework and this Act; and

(d)

monitoring the implementation of the national policy framework and of this Act.

(2) The Committee may make recommendations to the Minister with regard to the amendment of the national policy framework.

(3) The Minister must, after consultation with the cabinet members responsible for safety and security, correctional services, social development and health and the National Director of Public Prosecutions—

(a)

within one year after the implementation of this Act, submit reports to Parliament, by each Department or institution contemplated in section 63(2), on the implementation of this Act; and

(b)

every year thereafter submit such reports to Parliament.

Part 4: National instructions and directives, regulations and repeal and amendment of laws

National instructions and directives

66. (1) (a) The National Commissioner of the South African Police Service must, in consultation with the Minister of Safety and Security and after consultation with the Minister, the National Director or Public Prosecutions, the National Commissioner of Correctional Services and the Directors-General: Health and Social Development, issue and publish in the Gazette national instructions regarding all matters which are reasonably necessary or expedient to be provided for and which must be followed by all police officials who are tasked with receiving reports of and the investigation of sexual offence cases, in order to achieve the objects of this Act as set out in section 2 and the Preamble, particularly those objects which have a bearing on complainants of such offences, including the following:

(i)

The manner in which the reporting of an alleged sexual offence is to be dealt with by police officials;

(ii)

the manner in which sexual offence cases are to be investigated by police officials, including the circumstances in which an investigation in respect of a sexual offence may be discontinued;

(iii)

the circumstances in which and the relevant sexual offence or offence in respect of which a police official may apply for the HIV testing of an alleged offender as contemplated in section 33;

(iv)

the manner in which police officials must execute court orders for compulsory HIV testing contemplated in section 33 in order to ensure the security, integrity and reliability of the testing processes and test results;

(v)

the manner in which police officials must deal with the outcome of applications made and granted in terms of section 31 or 32 in order to ensure confidentiality; and

(vi)

the manner in which police officials must hand over to the victim or to the interested person, as the case may be, and to the alleged offender the test results.

(b) The National Commissioner of the South African Police Service must develop training courses, which must—

(i)

include training on the national instructions referred to in paragraph (a);

(ii)

include social context training in respect of sexual offences; and

(iii)

provide for and promote the use of uniform norms, standards and procedures,

with a view to ensuring that as many police officials as possible are able to deal with sexual offence cases in an appropriate, efficient and sensitive manner.

(c) The National Commissioner of the South African Police Service must, in consultation with the National Director of Public Prosecutions, issue and publish in the Gazette national instructions regarding the manner in which police officials must—

(i)

retain test results obtained;

(ii)

make the record of the test results available to a prosecutor; and

(iii)

destroy the test results as contemplated in section 33(2)(b),

as contemplated in section 33(1)(e), in order to ensure the confidentiality of such test results.

(2) (a) The National Director of Public Prosecutions must, in consultation with the Minister and after consultation with the National Commissioners of the South African Police Service and Correctional Services and the Directors-General: Health and Social Development, issue and publish in the Gazette directives regarding all matters which are reasonably necessary or expedient to be provided for and which are to be followed by all members of the prosecuting authority who are tasked with the institution and conducting of prosecutions in sexual offence cases, in order to achieve the objects of this Act as set out in section 2 and the Preamble, particularly those objects which have a bearing on complainants of such offences, including the following:

(i)

The manner in which sexual offence cases should be dealt with in general, including the circumstances in which a charge may be withdrawn or a prosecution stopped;

(ii)

the criteria to be used and circumstances in which the prosecution must apply to court for an order that witnesses and, in particular, child complainants below the age of 16 years give evidence by means of closed circuit television as provided for in section 158 of the Criminal Procedure Act, 1977, if the court does not make an order on its own initiative in terms subsection (2)(a) of that section or an application in terms of subsection (2)(b) of that section is not made;

(iii)

the criteria to be used and circumstances in which the prosecution must request the court to consider appointing a competent person as an intermediary as provided for in section 170A of the Criminal Procedure Act, 1977, in respect of witnesses and, in particular, child complainants below the age of 16 years;

(iv)

the circumstances in which the prosecution must request the court to consider directing that the proceedings may not take place in open court as provided for in section 153 of the Criminal Procedure Act, 1977;

(v)

the circumstances in which the prosecution must request the court to consider prohibiting the publication of the identity of the complainant in the case as provided for in section 154 of the Criminal Procedure Act, 1977, or of the complainant's family, including the publication of information that may lead to the identification of the complainant or the complainant's family;

(vi)

the criteria to be used, circumstances and manner in which Directors of Public Prosecutions should authorise and institute a prosecution contemplated in section 16(2), dealing with consensual sexual violation with a child with the view to ensuring uniformity;

(vii)

the criteria to be used, circumstances and manner in which Directors of Public Prosecutions should authorise and institute a prosecution contemplated in section 38(1), dealing with the ascertainment of the HIV status of an alleged offender or disclosure of the results of any HIV tests, with the view to ensuring uniformity;

(viii)

the information to be placed before a court during sentencing, including pre-sentence reports and information on the impact of the sexual offence on the complainant.

[Subpara. (ix) deleted by s. 33 of Act No. 42 of 2013.]

(b) The National Director of Public Prosecutions must develop training courses, which must—

(i)

include training on the directives referred to in paragraph (a);

(ii)

include social context training in respect of sexual offences; and

(iii)

provide for and promote the use of uniform norms, standards and procedures,

with a view to ensuring that as many prosecutors as possible are able to deal with sexual offence cases in an appropriate, efficient and sensitive manner.

(c) The National Director of Public Prosecutions must, in consultation with the National Commissioner of the South African Police Service, issue and publish in the Gazette directives regarding the manner in which prosecutors and other officials in the national prosecuting authority must deal with the HIV test results that were disclosed by police officials, as contemplated in section 33(l)(e)(ii), in order to ensure the confidentiality of such test results.

(3) (a) The Director-General: Health must, in consultation with the Minister of Health and after consultation with the Directors-General: Justice and Constitutional Development and Social Development and the National Commissioners of the South African Police Service and Correctional Services, publish in the Gazette directives regarding all matters which are reasonably necessary or expedient to be provided for and which are to be followed by all medical practitioners and any other relevant persons when dealing with sexual offence cases, in order to achieve the objects of this Act as set out in section 2 and the Preamble, particularly those objects which have a bearing on complainants of such offences, with particular reference, among others, to—

(i)

the administering of Post Exposure Prophylaxis;

(ii)

the manner in which court orders for compulsory HIV testing contemplated in section 33 must be executed in order to ensure the security, integrity and reliability of the testing processes and test results;

(iii)

the manner in which the HIV test results contemplated in section 37 must be dealt with in order to ensure confidentiality;

(iv)

the manner in which the reporting of an alleged sexual offence is to be dealt with if the offence is reported to a designated public health establishment; and

(v)

the manner in which assistance in the investigation and prosecution of sexual offences, generally, must be provided.

(b) The Director-General: Health must develop training courses, which must—

(i)

include training on the directives referred to in paragraph (a);

(ii)

include social context training in respect of sexual offences; and

(iii)

provide for and promote the use of uniform norms, standards and procedures,

with a view to ensuring that as many medical practitioners and any other relevant persons as possible are able to deal with sexual offence cases in an appropriate, efficient and sensitive manner.

(4) (a) The national instructions and directives by each Department or institution, contemplated in this section, must be:

(i)

Submitted to Parliament within six months after the commencement of this section, before publication in the Gazette; and

(ii)

published in the Gazette.

(b) Paragraph (a) applies to any new or amended national instructions or directives issued under this section with the changes required by the context.

(5) (a) The training courses contemplated in this section must be tabled in Parliament within six months after the commencement of this Act.

(b) The cabinet members responsible for safety and security, the administration of justice and health must, within a year after the commencement of this Act and every 12 months thereafter, table a report in Parliament relating to the implementation of the training courses.

(c) Any new or amended training courses developed under this section must be tabled in Parliament within 14 days of the finalisation thereof.

Regulations

67. The Minister, after consultation with the cabinet members responsible for safety and security, correctional services, social development and health and the National Director of Public Prosecutions, may make regulations regarding—

(a)

any matter which is required or permitted by this Act to be prescribed by regulation;

(b)

the inter-sectoral implementation of this Act; and

(c)

any other matter which is necessary or expedient to be prescribed in order to achieve or promote the objects of this Act.

Repeal and amendment of laws

68. (1) The common law relating to the—

(a)

irrebuttable presumption that a female person under the age of 12 years is incapable of consenting to sexual intercourse; and

(b)

crimes of rape, indecent assault, incest, bestiality and violation of a corpse, insofar as it relates to the commission of a sexual act with a corpse,

is hereby repealed.

(2) The laws specified in the Schedule are repealed or amended to the extent indicated in the third column of that Schedule.

Part 5: Transitional provisions

Transitional provisions

69. (1) All criminal proceedings relating to the common law crimes referred to in section 68(1)(b) which were instituted prior to the commencement of this Act and which are not concluded before the commencement of this Act must be continued and concluded in all respects as if this Act had not been passed.

(2) An investigation or prosecution or other legal proceedings in respect of conduct which would have constituted one of the common law crimes referred to in section 68(1)(b) which was initiated before the commencement of this Act may be concluded, instituted and continued as if this Act had not been passed.

(3) Despite the repeal or amendment of any provision of any law by this Act, such provision, for purposes of the disposal of any investigation, prosecution or any criminal or legal proceedings contemplated in subsection (1) or (2), remains in force as if such provision had not been repealed or amended.

Part 6: Transitional provisions relating to trafficking in persons for sexual purposes

Application and interpretation

70. (1) Pending the adoption of legislation in compliance with the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Trans-National Organized Crime (signed on 14 December 2000) and the repeal of this Part, the transitional provisions in this Part relating to the trafficking in persons for sexual purposes are provisionally provided for in partial compliance of our international obligations and to deal with this rapidly growing phenomena globally.

(2) For purposes of this Part—

(a)

“commercial carrier” includes a company, or the owner, operator or master of any means of transport, that engages in the transportation of goods or people for commercial gain; and

(b)

“trafficking” includes the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic, by means of—

(i)

a threat of harm;

(ii)

the threat or use of force, intimidation or other forms of coercion;

(iii)

abduction;

(iv)

fraud;

(v)

deception or false pretences;

(vi)

the abuse of power or of a position of vulnerability, to the extent that the complainant is inhibited from indicating his or her unwillingness or resistance to being trafficked, or unwillingness to participate in such an act; or

(vii)

the giving or receiving of payments, compensation, rewards, benefits or any other advantage,

for the purpose of any form or manner of exploitation, grooming or abuse of a sexual nature of such person, including the commission of any sexual offence or any offence of a sexual nature in any other law against such person or performing any sexual act with such person, whether committed in or outside the borders of the Republic, and “trafficks” and “trafficked” have a corresponding meaning.

Trafficking in persons for sexual purposes

71. (1) A person (“A”) who traflicks any person (“B”), without the consent of B, is guilty of the offence of trafficking in persons for sexual purposes.

(2) A person who—

(a)

orders, commands, organises, supervises, controls or directs trafficking;

(b)

performs any act which is aimed at committing, causing, bringing about, encouraging, promoting, contributing towards or participating in trafficking; or

(c)

incites, instigates, commands, aids, advises, recruits, encourages or procures any other person to commit, cause, bring about, promote, perform, contribute towards or participate in trafficking,

is guilty of an offence of involvement in trafficking in persons for sexual purposes.

(3) For the purpose of subsection (1), “consent” means voluntary or uncoerced agreement.

(4) Circumstances in which B does not voluntarily or without coercion agree to being trafficked, as contemplated in subsection (3), include, but are not limited to, the following—

(a)

where B submits or is subjected to such an act as a result of any one or more of the means or circumstances contemplated in subparagraphs (i) to (vii) of the definition of trafficking having been used or being present; or

(b)

where B is incapable in law of appreciating the nature of the act, including where B is, at the time of the commission of such act—

(i)

asleep;

(ii)

unconscious;

(iii)

in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that B's consciousness or judgement is adversely affected;

(iv)

a child below the age of 12 years; or

(v)

a person who is mentally disabled.

(5) A person who has been trafficked is not liable to stand trial for any criminal offence, including any migration-related offence, which was committed as a direct result of being trafficked.

(6) (a) A commercial carrier commits an offence if the carrier brings a person into or removes a person from the Republic and, upon entry into or departure from the Republic, the person does not have the travel documents required for lawful entry into or departure from the Republic.

(b) A commercial carrier is not guilty of an offence under paragraph (a) if—

(i)

the carrier had reasonable grounds to believe that the documents that the person has are the travel documents required for lawful entry into or departure from the Republic by that person;

(ii)

the person possessed the travel documents required for lawful entry into or departure from the Republic when that person boarded, or last boarded, the means of transport to travel to or from the Republic; or

(iii)

entry into the Republic occurred only because of illness of or injury to a child or adult on board, stress of weather or other circumstances beyond the control of the commercial carrier.

(c) A commercial carrier is, in addition to any offence under this section, liable to pay the costs of the trafficked person's care and safekeeping and return from, the Republic.

(d) A court must, when convicting a commercial carrier of an offence under this section, in addition order the commercial carrier concerned to pay the costs contemplated in paragraph (c).

Short title and commencement

72. (1) This Act is called the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, and, subject to subsection (2), takes effect on 16 December 2007, or an earlier date fixed by the President by proclamation in the Gazette.

(2) (a) Chapter 5 of the Act takes effect on 21 March 2008, or an earlier date fixed by the President by proclamation in the Gazette.

(b) Chapter 6 of the Act takes effect on 16 June 2008, or an earlier date fixed by the President by proclamation in the Gazette.