| (1) | A finding that a person is unsuitable to work with children may be made by— |
| (b) | any other court in any criminal or civil proceedings in which that person is involved; or |
| (c) | any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child. |
| (1A) | The provisions of subsection (1)(c) are not applicable to a person who was a child at the time of the commission of the alleged offence. |
[Section 120(1A) inserted by section 2(a) of Act No. 17 of 2016]
| (2) | A finding in terms of subsection (1) may be made by a court or a forum contemplated in subsection (1) of its own volition or on application by— |
| (b) | a prosecutor, if the finding is sought in criminal proceedings; or |
| (c) | a person having a sufficient interest in the protection of children. |
| (3) | Evidence as to whether a person is unsuitable to work with children may be heard by the court or forum either in the course of or at the end of its proceedings. |
| (4) | In criminal proceedings, subject to the provisions of subsection (4A), a person must be deemed unsuitable to work with children— |
| (a) | on conviction of murder, rape, indecent assault or any sexual contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), assault with the intent to do grievous bodily harm, where a child is the victim of any such offence, or any attempt to commit any such offence, or possession of child pornography as contemplated in section 24B of the Films and Publications Act, 1996 (Act No. 65 of 1996), or offences in terms of section 8, 9, 10 or 24A(5) of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013); or |
| (b) | if a court makes a finding and gives a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) that the person is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence or was by reason of mental illness or mental defect not criminally responsible for the act which constituted an offence contemplated in paragraph (a). |
[Section 120(4) substituted by section 2(b) of Act No. 17 of 2016]
| (4A) | If a court has, in terms of this Act or any other law, convicted a person of an offence referred to in subsection (4)(a) and such a person was a child at the time of the commission of such offence, or if a court has made a finding and given a direction referred to in subsection (4)(b) in respect of such person who was a child at the time of the alleged commission of the offence, the court may not make an order as contemplated in subsection (4)(a) unless— |
| (a) | the prosecutor has made an application to the court for such an order; |
| (b) | the court has considered a report by the probation officer referred to in section 71 of the Child Justice Act, 2008, which deals with the probability of committing an offence contemplated in subsection (4), against a child; |
| (c) | the person concerned has been given the opportunity to address the court as to why his or her particulars should not be included in the Register; and |
| (d) | the court is satisfied that substantial and compelling circumstances exist based upon such report and any other evidence, which justify the making of such an order. |
[Section 120(4A) inserted by section 2(c) of Act No. 17 of 2016]
| (4B) | In the event that a court finds that substantial and compelling circumstances exist which justify the making of an order as contemplated in subsection (4), the court must enter such circumstances on the record of the proceedings. |
[Section 120(4B) inserted by section 2(c) of Act No. 17 of 2016]
| (5) | Any person who has been convicted of an offence contemplated in subsection (4)(a), whether committed in or outside the Republic during the five years preceding the commencement of this Chapter, is deemed to be unsuitable to work with children unless such person was a child at the time of the commission of the offence. |
[Section 120(5) substituted by section 2(d) of Act No. 17 of 2016]
| (6) | A finding in terms of subsection (1)(b) that a person is unsuitable to work with children is not dependent upon a finding of guilty or innocent in the criminal trial of that person. |
