Page:Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007.pdf/23

44 No. 30599

Act No. 32, 2007 alleged offender be tested for HIV in accordance with the State's prevailing norms and protocols, including where necessary—

the collection from the alleged offender of two prescribed body specimens; and

the performance on the body specimens of one or more HIV tests as are reasonably necessary to determine the presence or absence of HIV infection in the alleged offender,

and that the HIV test results be disclosed in the prescribed manner to the victim or interested person, as the case may be, and to the alleged offender; or

in the case where the alleged offender has already been tested for HIV on application by a police official as contemplated in section 32, order that the HIV test results be disclosed in the prescribed manner to the victim or interested person, as the case may be.

(4) An order referred to in subsection (3) must be made in the prescribed manner and handed to the investigating officer.

(5) The investigating officer must, as soon as is reasonably practicable, after an application has been considered—

inform the victim or interested person, as the case may be, of the outcome of the application; and

if an order has been granted in terms of subsection (3), inform the alleged offender thereof by handing to him or her a notice containing the information as prescribed and, if necessary, by explaining the contents of the notice.

Application by investigating officer for HIV testing of alleged offender

32. (1) An investigating officer may, subject to subsection (2), for purposes of investigating a sexual offence or offence apply in the prescribed form to a magistrate of the magisterial district in which the sexual offence or offence is alleged to have occurred, in chambers, for an order that—

the alleged offender be tested for HIV; or

the HIV test results in respect of the alleged offender, already obtained on application by a victim or any interested person on behalf of a victim as contemplated in section 30(1)(a)(i), be made available to the investigating officer or, where applicable, to a prosecutor who needs to know the results for purposes of the prosecution of the matter in question or any other court proceedings.

(2) An application contemplated in subsection (1) must—

set out the grounds, on the strength of information taken on oath or by way of solemn declaration, in which it is alleged that a sexual offence or offence was committed by the alleged offender; and

be made after a charge has been laid, and may be made before or after an arrest has been effected, or after conviction.

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

a sexual offence or offence has been committed by the offender; and

HIV testing would appear to be necessary for purposes of investigating or prosecuting the offence,

the magistrate must, in the case of an application contemplated in subsection (1)(a), order that the alleged offender be tested for HIV in accordance with the State's prevailing norms and protocols, including, where necessary—

the collection from the alleged offender of two prescribed body specimens; and

the performance on the body specimens of one or more HIV tests as are reasonably necessary to determine the presence or absence of HIV infection in the alleged offender,

and that the HIV test results be disclosed in the prescribed manner to the investigating officer or, where applicable, to a prosecutor who needs to know the results for purposes of the prosecution of the matter in question or any other court proceedings and to the