8
“(a) A court that has in terms of this Act or any other law—
(i)
convicted a person of a sexual offence against a child or a person who is mentally disabled and, after sentence has been imposed by that court for such offence, in the presence of the convicted person; or(ii)
made a finding and given a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 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 a sexual offence against a child or a person who is mentally disabled, in the presence of that person,must, subject to paragraph (c), make an order that the particulars of the person be included in the Register.”;
(b)
by the insertion after paragraph (b) of subsection (2) of the following paragraphs:“(c) If a court has, in terms of this Act or any other law, convicted a person (‘A’) of a sexual offence referred to in paragraph (a)(i) and A 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 paragraph (a)(ii) in respect of A who was a child at the time of the alleged commission of the offence, the court may not make an order as contemplated in paragraph (a) unless—
(i)
the prosecutor has made an application to the court for such an order;(ii)
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 A committing another sexual offence against a child or a person who is mentally disabled, as the case may be, in future;(iii)
A has been given the opportunity to address the court as to why his or her particulars should not be included in the Register; and(iv)
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.(d) In the event that a court finds that substantial and compelling circumstances exist which justify the making of an order as contemplated in paragraph (a), the court must enter such circumstances on the record of the proceedings.”; and
(c)
by the substitution for subsection (4) of the following subsection:“(4) Where a court, for whatever reason, fails to make an order under subsection (2)(a), in respect of any person other than a person referred to in subsection (2)(c), the prosecuting authority or any person must immediately or at any other time bring this omission to the attention of the court and the court must make such order.”.
Amendment of section 51 of Act 32 of 2007
8. Section 51 of the principal Act is hereby amended—
(a)
by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:“(1) Subject to subsections (2), (2A) and (3), the particulars of a person—”; and
(b)
by the insertion after subsection (2) of the following subsection:“(2A) A person falling into the categories contemplated in subsection (1), who was a child at the time of the commission of the offence concerned and who was convicted of such offence or a person who was a child at the time of the alleged commission of the offence and in respect of whom a court has made a finding and given a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977—
