Page:Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007.pdf/22

42 No. 30599

Act No. 32, 2007 the alleged offender be tested for HIV and that the results thereof be disclosed to the victim or interested person, as the case may be, and to the alleged offender; or

the HIV test results in respect of the alleged offender, obtained on application by a police official as contemplated in section 32, be disclosed to the victim or interested person, as the case may be.

(b) If the application is brought by an interested person, such application must be brought with the written consent of the victim, unless the victim is—

under the age of 14 years;

a person who is mentally disabled;

unconscious;

a person in respect of whom a curator has been appointed in terms of an order of court; or

a person whom the magistrate is satisfied is unable to provide the required consent.

(2) (a) Every application must—

state that a sexual offence was committed against the victim by the alleged offender;

confirm that the alleged offence has been reported as contemplated in section 28(2);

state that the victim may have been exposed to the risk of being infected with HIV as a result of the alleged sexual offence;

if it is brought by an interested person, state the nature of the relationship between the interested person and the victim, and if the interested person is not the spouse, same sex or heterosexual permanent life partner or a parent of the victim, the reason why the application is being made by such interested person; and

state that less than 90 days have elapsed from the date on which it is alleged that the offence in question took place.

(b) The matters referred to in paragraph (a) must be verified by the victim or the interested person, as the case may be, by affidavit or solemn declaration.

(3) The application must be made as soon as possible after a charge has been laid, and may be made before or after an arrest has been effected.

(4) The application must be handed to the investigating officer, who must, as soon as is reasonably practicable, submit the application to a magistrate of the magisterial district in which the sexual offence is alleged to have occurred.

Consideration of application by magistrate and issuing of order

31. (1) The magistrate must, as soon as is reasonably practicable, consider the application contemplated in section 30, in chambers and may call for such additional evidence as he or she deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings.

(2) (a) For the purpose of the proceedings contemplated in subsection (1), the magistrate may consider evidence by or on behalf of the alleged offender if, to do so, will not give rise to any substantial delay.

(b) Evidence contemplated in paragraph (a) may be adduced in the absence of the victim, if the magistrate is of the opinion that it is in the best interests of the victim to do so.

(3) If the magistrate is satisfied that there is prima facie evidence that—

a sexual offence has been committed against the victim by the alleged offender;

the victim may have been exposed to the body fluids of the alleged offender; and

no more than 90 calendar days have lapsed from the date on which it is alleged that the offence in question took place,

the magistrate must—

in the case where the alleged offender has not been tested for HIV on application by a police official as contemplated in section 32, order that the