# Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/2009-02-17/Chapter 7

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)
(b)
(c)
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 and sentencing
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)
(b)
(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)
(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)
(b)
(6) It is not a valid defense to a charge under section 20(1), in respect of a visual representation that—
(a)
(b)
(7) 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)
(b)
from the commission of such offence.
(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.
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)
(b)
(c)
(d)
(e)
(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)
(b)
(c)
(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)
(b)
(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)
(b)
(c)
(2) The Minister must—
(a)
(b)
(c)
(d)
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)
(b)
(c)
(d)
(e)
(f)
(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)
(b)
(c)
(d)
(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)
(b)
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)
(ii)
(iii)
(iv)
(v)
(vi)
(b) The National Commissioner of the South African Police Service must develop training courses, which must—
(i)
(ii)
(iii)
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)
(ii)
(iii)
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)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(b) The National Director of Public Prosecutions must develop training courses, which must—
(i)
(ii)
(iii)
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)
(ii)
(iii)
(iv)
(v)
(b) The Director-General: Health must develop training courses, which must—
(i)
(ii)
(iii)
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)
(ii)
(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)
(b)
(c)
Repeal and amendment of laws
68. (1) The common law relating to the—
(a)
(b)
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)
(b)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
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)
(b)
(c)
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)
(b)
(i)
(ii)
(iii)
(iv)
(v)
(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)
(ii)
(iii)
(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.