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

&#x200b;

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:

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

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;

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;

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;

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

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—

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

include social context training in respect of sexual offences; and

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—

retain test results obtained;

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

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:

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;

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;

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;

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;

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;

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;

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;

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.

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

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

include social context training in respect of sexual offences; and

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—

the administering of Post Exposure Prophylaxis;

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;

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

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

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—

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

include social context training in respect of sexual offences; and

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:

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

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.