The Minister of Justice and Correctional Services has, in terms of section 67, read with section 53, of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), amended and expanded law on the employment of sex offenders in South Africa effective 31 July 2022. Proclamation 79 was published in Government Gazette 47105.
The principal changes to the act are in response to the escalation of gender-based violence (GBV) and femicide, broadening the scope beyond children and mentally disabled persons. It now extends to any environment where the newly expanded category of “PERSONS WHO ARE VULNERABLE” either visit or are cared for. And offenders listed on the National Register for Sex Offenders (NRSO) have to declare this information when applying for any position in which they are exposed to vulnerable persons.
Understandably these new changes will have significant implications for employers, especially those who offer institutional care or education to vulnerable groups.
In this two-part article, we will first examine the amendments to the act, and in the second part, we will explore ways employers can respond to the amendments.
Summary of the amendments
Objectives
The Criminal Law (Sexual Offences and Related Matters) Amendment Act aims to:
- Extend the ambit of the offence of incest;
- Introduce a new offence of sexual intimidation;
- Substitute the phrase ‘‘a person who is mentally disabled’’ or ‘‘persons who are mentally disabled’’ wherever the phrase appears with the phrase ‘‘a person with a mental disability’’ or ‘‘persons with mental disabilities’’;
- Further regulate the inclusion of particulars of persons in the National Register for Sex Offenders;
- Extend the list of persons who are to be protected in terms of Chapter 6 of the act;
- Extend the list of persons who are entitled to submit applications to the Registrar of the National Register for Sex Offenders;
- Further regulate the removal of particulars of persons from the National Register for Sex Offenders;
- Further regulate the reporting duty of persons who are aware that sexual offences have been committed against persons who are vulnerable; and
- Provide for matters connected therewith.
Persons who are vulnerable
The Amendment Act has expanded the category definition:
- It continues to comprise of children and persons who are mentally disabled; adding
- People of 60 years of age and over who are being cared for in any facility; and
- Females under 25 at universities or similar training institutions, who live in residences or receive vocational training as part of their employment.
Responsibilities of the employer
The Amendment Act has expanded the obligation of employers or business owners who work with, supervise or care for vulnerable persons:
- Prohibiting them from employing or keeping people whose details appear in the National Register for Sex Offenders; and
- Placing the onus on them to ensure and verify that their workers have clearance in this regard.
The register is not open to the general public, but the act does specify that interested parties may apply to the Registrar to determine if a person appears in the register.
The definition of employer and employee for the act is expansive, including people outside the narrow meaning of an employment relationship. Potentially, it now also consists of service providers, volunteers and the likes, as well as business owners or anyone with an economic interest in providing services to vulnerable persons.
There is also a duty placed on people who are aware of (or have reason to believe) such offences have or are being committed against vulnerable persons.
Responsibilities of the employee
The Amendment Act makes provision for any person who is being convicted of or who has a previous conviction for a sexual offence:
- Both existing employees and job applicants have a legal obligation to disclose their status in this respect to the employer if they are exposed to any vulnerable person or group.
- Both must apply to the Registrar through an application form that must correspond substantially with Form 7 in Annexure B to the Regulations for a certificate stating whether or not their particulars appear in the NRSO.
- The National Commissioner of the South African Police Service (SAPS) must also confirm in writing that there is no pending charge relating to a sexual offence against the person concerned.
Convicted sexual offenders on the NRSO may not continue to work with a vulnerable person or hold a position of authority, supervision, or care for a vulnerable person. This includes, but is not limited to:
- Having any access whatsoever to vulnerable people;
- Being granted a licence or approval to manage or operate a business entity of a vulnerable person; and
- Foster parents, kinship caregivers, temporary safe caregivers, adoptive parents, and curators.
Punitive measures in place
The Amendment Act makes provision for the following transgressions by offenders on the NRSO who:
- Falsely declare that there are no criminal proceedings against them for allegedly having committed a sexual offence against a vulnerable person, and/or
- Falsely apply for the removal of their particulars from the NRSO.
People guilty of such an offence are liable, on conviction, to a fine or imprisonment, or both.
Removal from the NRSO
The particulars of a person who has been sentenced for a conviction of a sexual offence to a term of imprisonment, periodical imprisonment, correctional supervision, or to imprisonment 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, may, on application, be removed from the NRSO after 20 years has lapsed. Removal from the NRSO is subject to the particulars contained in Section 51 of the Act.
Conclusion
Critical new implications now exist for employers, including the onus to safeguard vulnerable groups, as defined by the act. It is no longer sufficient to employ an ordinary interview screening process to weed out problematic candidates who may have access to vulnerable persons.
The real dilemma lies with existing employees within an organisation. How to track existing offenders and how to handle situations where specific behavioural patterns or eye-witness accounts may indicate or implicate an employee in terms of sexual offences.
Employers may be held liable, according to the Amended Act, for failing to comply. But at the same time, employee rights have to be weighed against this business risk. Various elements of the Employment Equity Act, the POPI Act, and others are likely to also play a role. One cannot simply force an employee to submit to psychometric testing, for example.
In the second part of this article, we will explore the actions that employers can take in response to the amended Act. The (SA)UEO will provide advice and guidance on pressing questions like:
- Would a standard criminal check usually highlight a registered sex offender?
- If not, what other ways are there to screen a potential employee?
- What are best practices for ongoing screening of employees who work with the vulnerable?