Abstract
Section 42 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 established a National Register for Sex Offenders where the particulars of all offenders guilty of sexual transgressions against children or mentally-ill persons have to be included, regardless of whether they were found guilty before or after the coming into force of the Act. Although the purpose of the Act clearly is to protect and promote the constitutional rights of victims and society in general, it is apparent that the register may infringe on the rights of sexual offenders. The inclusion of the personal details of sex offenders in a register without their permission and sometimes without their knowledge amounts to a violation amongst other rights of the right to privacy stipulated in section 14 of the Constitution of the Republic of South Africa, 1996. In this article the constitutionality of the South African register will be examined by means of a comparative study with the United States and United Kingdom, where similar registers are already in place. This legislative assessment will also provide answers as to the viability of the South African register. It is argued that South Africa's sex offender registration system may not fulfil the function it was designed for because of misconceptions as well as serious implementation and administrative issues; and that alternative solutions may be more suitable in this regard.
Highlights
Issues surrounding sexual offences have always been contentious
South Africa provides for a National Register for Sex Offenders (NRSO) in terms of section 42 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.2 This jurisdiction has had the ideal opportunity to ameliorate the flaws and to reproduce the successes of other registers dealing with sex offenders
The purpose of the NRSO is first and foremost to protect vulnerable potential victims - children and mentally-disabled persons - from coming into contact with sex offenders during the course of employment by establishing and maintaining a record of convicted and alleged offenders,[69] and to allow employers,[70] licensing authorities,[71] and relevant authorities dealing with fostering, kinship- and temporary safe caregiving, adoption and curatorship the ability to apply for a prescribed certificate stating whether or not the particulars of a potential employee or applicant are contained in the NRSO.[72]
Summary
Some governments have attempted to deal with this crime by creating a sex offender register whereby the activities and movements of sexual deviants are monitored and the details of convicted sex offenders are recorded for open or restricted public use.[1] South Africa provides for a National Register for Sex Offenders (NRSO) in terms of section 42 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.2 This jurisdiction has had the ideal opportunity to ameliorate the flaws and to reproduce the successes of other registers dealing with sex offenders In this regard, the SA Law Reform Commission (SALRC) debated the feasibility of a sex offender register for a considerable period of time.[3] Aspects such as the scope of the register, public access to the register's information, and who to include in the register were discussed, amongst other matters.
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