Sexual Offences Act, 1957/1993-12-01

by enacted by the Parliament of South Africa

Act

To consolidate and amend the laws relating to brothels and unlawful carnal intercourse and other acts in relation thereto.

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(English text signed by the Governor-General.)
(Assented to 3rd April, 1957.)

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as amended by

Immorality Amendment Act, No. 68 of 1967
Immorality Amendment Act, No. 57 of 1969
Immorality and Prohibition of Mixed Marriages Amendment Act, No. 72 of 1985
Immorality Amendment Act, No. 2 of 1988
Criminal Law Amendment Act, No. 4 of 1992
General Law Amendment Act, No. 139 of 1992
General Law Fourth Amendment Act, No. 132 of 1993

Be it enacted by the Queen’s Most Excellent Majesty, the Senate and the House of Assembly of the Union of South Africa, as follows:―

Definitions.

1. In this Act, unless the contest otherwise indicates–

“brothel” includes any house or place kept or used for purposes of prostitution or for persons to visit for the purpose of having unlawful carnal intercourse or for any other lewd or indecent purpose;

[Definition of “coloured person” deleted by s. 1 (a) of Act No. 72 of 1985.]

“court” means the court before which the charge is brought;

[Definition of “court” substituted by s. 1 of Act No. 2 of 1988.]

“house” includes a dwelling-house, building, room, out-house, shed or tent or any part thereof;

“owner” includes any person who lets or sub-lets or permits the occupation of any house or place whether in his own right or that of another;

“place” includes any field, enclosure, space, vehicle, or boat or any part thereof;

“police officer” means any member of any police force established under the authority of any law;

“unlawful carnal intercourse” means carnal intercourse otherwise than between husband and wife.

[Definition of “white person” deleted by s. 1 (a) of Act No. 72 of 1985.]

Keeping a brothel.

2. Any person who keeps a brothel shall be guilty of an offence.

Certain persons deemed to keep a brothel.

3. The following persons shall for the purposes of section two be deemed to keep a brothel:

(a)

any person who resides in a brothel unless he or she proves that he or she was ignorant of the character of the house or place;

(b)

any person who manages or assists in the management of any brothel;

(c)

any person who knowingly receives the whole or any share of any moneys taken in a brothel;

(d)

any person who, being the tenant or occupier of any house or place, knowingly permits the same to be used as a brothel;

(e)

any person who, being the owner of any house or place, lets the same, or allows the same to be let, or to continue to be let, with the knowledge that such house or place is to be kept or used or is being kept or used as a brothel;

(f)

any person found in a brothel who refuses to disclose the name and identity of the keeper or manager thereof;

[Para. (f) amended by s. 5 of Act No. 139 of 1992.]

(g)

any person whose spouse keeps or resides in or manages or assists in the management of a brothel unless such person proves that he or she was ignorant thereof or that he or she lives apart from the said spouse and did not receive the whole or any share of the moneys taken therein.

[Para. (g) amended by s. 11 of Act No. 132 of 1993.]

Onus of proof.

4. In prosecutions under this Act the onus of proving that a house or place is to be kept or used or is being kept or used as a brothel to the knowledge of the owner shall be on the prosecution: Provided that—

(a)

if it is established to the satisfaction of the court that, having regard to the locality and accommodation, the rent to be paid or paid for the house or place is exorbitant, the onus shall be on the accused to prove that he was ignorant that such house or place is to be kept or used or was kept or used as a brothel;

(b)

proof of written notice having been given to the owner by a police officer not below the rank of sergeant or by two householders living in the vicinity of the house or place that any house or place is being kept or used as a brothel, shall be conclusive proof of knowledge on his part.

Contract to let house or place for a brothel void.

5. Any contract to let any house or place to be kept or used as a brothel shall be null and void.

Use of house or place as a brothel avoids contract of letting.

6. Any contract of letting and hiring of any house or place which subsequently to the making of such contract becomes a brothel shall as from the date of such event be determined and become null and void: Provided that upon proof by the owner of his ignorance that the house or place was so kept or used he shall be entitled to recover the rent up to the date upon which he became aware that the house or place was being kept or used as a brothel.

Summary ejectment when a house or place is used as a brothel.

7. The owner of any house or place kept or used as a brothel shall be entitled to apply to the magistrate of the district in which such house or place is situated for the summary ejectment of any person who may be keeping or using such house or place as a brothel and such magistrate shall be entitled after enquiry to order the summary ejectment of such person.

Proceedings upon complaint by householders or police that a house or place is used as a brothel.

8. (1) If it appears to any magistrate on sworn information laid before him by not less than two householders of good repute that any house or place in the vicinity of the dwellings of such householders is being kept or used as a brothel or on similar information upon oath laid before him by any police officer not below the rank of sergeant, or by a welfare officer employed by a department of State responsible for Health and Welfare, a local authority or a welfare organization registered under the National Welfare Act, 1978 (Act No. 100 of 1978), the magistrate may—

(a)

issue a warrant for the arrest of the person alleged to be the keeper of such brothel; or

(b)

issue a warrant authorizing any police officer not below the rank of sergeant—

(i)

to enter at any time and within such period as shall be stated in such warrant, such house or place for the purpose of ascertaining the name and identity of the keeper of such house or place;

(ii)

to interrogate, and to demand the name and address of any person found in or upon such house or place; and

(iii)

to demand, search for, and seize any account book, receipt, paper, document or thing likely to afford evidence of the commission by any person of an offence under this Act.

[Sub-s. (1) amended by s. 2 (a) of Act No. 2 of 1988.]

(2) Any person found in or upon such house or place who, when called upon to do so by the police officer conducting the search, refuses to furnish his name and address or furnishes a name or address which is false in any material particular or refuses to disclose the name or identity of the keeper of such house or place or to produce any book, receipt, paper, document or thing which he has in his possession or custody or under his control, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding R1 000 and in default of payment to imprisonment for a period not exceeding six months.

[Sub-s. (2) substituted by s. 1 of Act No. 68 of 1967 and by s. 2 (b) of Act No. 2 of 1988.]

(3) The issue of a warrant under paragraph (b) of sub-section (1) shall not in any way affect the power of the magistrate to issue at any time a warrant under paragraph (a) of sub-section (1) or under any other law.

Parent or guardian procuring defilement of child or ward.

9. (1) Any person who, being a parent or guardian of any child under the age of 18 years—

(a)

permits, procures or attempts to procure such child to have unlawful carnal intercourse, or to commit any immoral or indecent act, with any person other than the procurer, or to reside in or to frequent a brothel; or

(b)

orders, permits, or in any way assists in bringing about, or receives any consideration for, the defilement, seduction, or prostitution of such child,

shall be guilty of an offence.

[Sub-s. (1) substituted by s. 3 (a) of Act No. 2 of 1988.]

(1A) For the purposes of subsection (1) (b) a parent or guardian whose child has been defiled or seduced or has become a prostitute, shall be deemed to have assisted in bringing about that defilement, seduction or prostitution if he has knowingly permitted his child to consort with, or to continue in the employment of, a prostitute or a person with an immoral reputation.

[Sub-s. (1A) inserted by s. 3 (a) of Act No. 2 of 1988.]

(2) The term “guardian” in this section includes any person who has in law or in fact the custody or control of the child.

[Sub-s. (2) substituted by s. 3 (b) of Act No. 2 of 1988.]

Procuration.

10. Any person who—

(a)

procures or attempts to procure any female to have unlawful carnal intercourse with any person other than the procurer or in any way assists in bringing about such intercourse; or

(b)

inveigles or entices any female to a brothel for the purpose of unlawful carnal intercourse or prostitution or conceals in any such house or place any female so inveigled or enticed; or

(c)

procures or attempts to procure any female to become a common prostitute; or

(d)

procures or attempts to procure any female to become an inmate of a brothel; or

(e)

applies, administers to or causes to be taken by any female any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower her so as thereby to enable any person other than the procurer to have unlawful carnal intercourse with such female,

shall be guilty of an offence.

Conspiracy to defile.

11. Any person who conspires with any other person to induce any female by any false pretence or other fraudulent means to allow any male to have unlawful carnal intercourse with her, shall be guilty of an offence.

Detention for purposes of unlawful carnal intercourse.

12. Any person who takes or detains any female against her will—

(a)

to or in or upon any house or place with intent that she may be unlawfully carnally known by any male, whether a particular male or not; or

(b)

to or in a brothel,

shall be guilty of an offence.

(2) Where a female is in or upon any house or place for the purpose that she may be unlawfully carnally known by any male, whether a particular male or not, or is in any brothel, she shall for the purposes of this section be deemed to have been taken thereto or to be detained therein or thereon against her will—

(a)

if she is under the age of sixteen years; or

(b)

if she, being of or above the age of sixteen years and under the age of twenty-one years, was taken or is detained against her will or against the will of her father or mother, or any person having the lawful care or charge of her.

(3) Any person shall be deemed to detain a female in or upon any house or place or in a brothel if, with intent to compel or induce her to remain in or upon such house or place or in such brothel, such person withholds from her any wearing apparel or other property to the possession of which she is entitled or which has been lent or supplied to her by such person or for the purposes of prostitution; and any such female shall be justified in taking away such wearing apparel as is necessary to enable her to leave such house or place or brothel.

Assistance for purposes of unlawful carnal intercourse.

12A. (1) Any person who, with intent or while he reasonably ought to have foreseen the possibility that any person may have unlawful carnal intercourse, or commit an act of indecency, with any other person for reward, performs for reward any act which is calculated to enable such other person to communicate with any such person, shall be guilty of an offence.

[Sub-s. (1) substituted by s. 4 (a) of Act No. 2 of 1988.]

[Sub-s. (2) deleted by s. 4 (b) of Act No. 2 of 1988.]

[S. 12A inserted by s. 2 of Act No. 68 of 1967.]

Abduction.

13. (1) Any person who takes or detains or causes to be taken or detained any unmarried male or female under the age of twenty-one years out of the custody and against the will of his or her father or mother or guardian, with intent that such person or any other person, whether a particular person or not, may have unlawful carnal intercourse with such unmarried male or female, shall be guilty of an offence.

(2) The term “guardian” in this section includes any person who has in law or in fact the custody or control of the unmarried male or female.

Sexual offences with youths.

14. (1) Any male person who—

(a)

has or attempts to have unlawful carnal intercourse with a girl under the age of 16 years; or

(b)

commits or attempts to commit with such a girl or with a boy under the age of 19 years an immoral or indecent act; or

(c)

solicits or entices such a girl or boy to the commission of an immoral or indecent act,

shall be guilty of an offence.

(2) It shall be a sufficient defence to any charge under subsection (1) if it shall be made to appear to the court—

(a)

that the girl at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which he is so charged; or

(b)

…

(c)

that the girl or person in whose charge she was, deceived the person so charged into believing that she was over the age of 16 years at the said time.

(3) Any female who—

(a)

has or attempts to have unlawful carnal intercourse with a boy under the age of 16 years; or

(b)

commits or attempts to commit with such a boy or with a girl under the age of 19 years an immoral or indecent act; or

(c)

solicits or entices such a boy or girl to the commission of an immoral or indecent act,

shall be guilty of an offence.

(4) It shall be a sufficient defence to any charge under subsection (3) if it shall be made to appear to the court—

(a)

that the boy at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which she is so charged; or

(b)

that the boy or person in whose charge he was, deceived the person so charged into believing that he was over the age of 16 years at the said time.

[S. 14 substituted by s. 1 of Act No. 57 of 1969 and by s. 5 of Act No. 2 of 1988.]

Sexual offences with idiots or imbeciles.

15. Any person who—

(a)

has or attempts to have unlawful carnal intercourse with any male or female idiot or imbecile in circumstances which do not amount to rape; or

(b)

commits or attempts to commit with such a male or female any immoral or indecent act; or

(c)

solicits or entices such a male or female to the commission of any immoral or indecent act,

shall if it be proved that such person knew that such male or female was an idiot or imbecile, be guilty of an offence.

[S. 15 substituted by s. 6 of Act No. 2 of 1988.]

[S. 16 repealed by s. 2 of Act No. 72 of 1985.]

Owner or occupier permitting on his premises the defilement of a female or any offence against this Act.

17. Any person who being the owner or occupier of any house or place or having or acting or assisting in the management or control thereof knowingly permits the use of such house or place for the purpose of any offence against any provision of this Act, shall be guilty of an offence.

Use of drugs, etc., for purposes of defilement of females.

18. Any person who applies, administers to or causes to be taken by any female any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower her so as thereby to enable him to have unlawful carnal intercourse with her, shall be guilty of an offence.

Manufacture, sale or supply of article which is intended to be used to perform an unnatural sexual act.

18A. (1) Any person who manufactures, sells or supplies any article which is intended to be used to perform an unnatural sexual act, shall be guilty of an offence.

(2) For the purposes of subsection (1), “sell” includes to offer for sale, to keep for sale or to keep in a place where goods are sold, offered or kept for sale.

[S. 18A inserted by s. 2 of Act No. 57 of 1969.]

Enticing to commission of immoral acts.

19. Any person who—

(a)

entices, solicits, or importunes in any public place for immoral purposes; or

(b)

wilfully and openly exhibits himself or herself in an indecent dress or manner at any door or window or within view of any public street or place or in any place to which the public have access,

shall be guilty of an offence.

Persons living on earnings of prostitution or committing or assisting in commission of indecent acts.

20. (1) Any person who—

(a)

knowingly lives wholly or in part on the earnings of prostitution; or

(aA)

has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward; or

[Para. (aA) inserted by s. 7 (a) of Act No. 2 of 1988.]

(b)

in public commits any act of indecency with another person; or

(c)

in public or in private in any way assists in bringing about, or receives any consideration for, the commission by any person of any act of indecency with another person,

shall be guilty of an offence.

(2) If it is made to appear to a magistrate by information on oath that there is reason to suspect that any house is used for purposes of prostitution and that any person residing in or frequenting the house is living wholly or in part on the earnings of prostitution, the magistrate may issue a warrant authorizing any police officer not below the rank of sergeant to enter and search the house and to arrest that person.

[Sub-s. (2) substituted by s. 7 (b) of Act No. 2 of 1988.]

Acts committed between men at a party and which are calculated to stimulate sexual passion or to give sexual gratification, prohibited.

20A. (1) A male person who commits with another male person at a party an act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence.

(2) For the purposes of subsection (1) “a party” means any occasion where more than two persons are present.

(3) The provisions of subsection (1) do not derogate from the common law, any other provision of this Act or a provision of any other law.

[S. 20A inserted by s. 3 of Act No. 57 of 1969.]

Presumptions.

21. (1) Whenever in any prosecution under this Act the question is in issue whether any carnal intercourse between a male and a female was unlawful, such male and female shall be deemed to have been unmarried at the time of such intercourse unless the accused proves the contrary.

[Sub-s. (2) deleted by s. 3 of Act No. 72 of 1985.]

(3) Whenever in any prosecution under this Act a person is proved to reside in a brothel or to live with or to be habitually in the company of a prostitute and has no visible means of subsistence, such person shall, unless he or she satisfies the court to the contrary, be deemed to he knowingly living wholly or in part on the earnings of prostitution.

(4) Whenever in any prosecution for an offence under section 12A it is proved—

(a)

that the accused has performed any act for reward which was calculated to enable any person to communicate with any other person who is a prostitute; or

(b)

that the other person with whom communication was made as a result of such act has had unlawful carnal intercourse, or has committed an act of indecency, with such person for reward,

the accused shall be presumed to have performed such act with intent or while he reasonably ought to have foreseen the possibility that such other person may have unlawful carnal intercourse, or commit an act of indecency, with such person for reward unless the contrary is proved beyond reasonable doubt.

[Sub-s. (4) added by s. 3 of Act No. 68 of 1967 and substituted by s. 8 of Act No. 2 of 1988.]

Penalties.

22. Any person who is convicted of an offence under the provisions of this Act for which no special penalty is prescribed, shall be liable—

(a)

in the case of an offence referred to in section 2 or 20 (1) (a) or (aA), to imprisonment for a period not exceeding three years with or without a fine not exceeding R6 000 in addition to such imprisonment;

[Para. (a) substituted by s. 4 (a) of Act No. 72 of 1985 and by s. 9 (a) of Act No. 2 of 1988.]

(b)

in the case of an offence referred to in section 9 (1), to imprisonment for a period not exceeding five years, or, if the child concerned is a boy under the age of 14 years or a girl under the age of 12 years, for life;

[Para. (b) substituted by s. 9 (b) of Act No. 2 of 1988.]

[Para. (c) deleted by s. 2 (a) of Act No. 4 of 1992.]

(d)

in the case of an offence referred to in section 11, 12A or 18, with a fine, or imprisonment for a period not exceeding five years;

[Para. (d) substituted by s. 2 (b) of Act No. 4 of 1992.]

(e)

in the case of an offence referred to in section 10, 12 (1) or 13 (1), to imprisonment for a period not exceeding seven years;

[Para. (e) substituted by s. 4 (c) of Act No. 72 of 1985 and by s. 2 (b) of Act No. 4 of 1992.]

(f)

in the case of an offence referred to in section 14 (1), 14 (3), 15 or 17, to imprisonment for a period not exceeding six years with or without a fine not exceeding R12 000 in addition to such imprisonment;

[Para. (f) substituted by s. 9 (d) of Act No. 2 of 1988.]

(g)

in the case of an offence referred to in section 18A, 19, 20 (1) (b) or (c), or 20A (1), to a fine not exceeding R4 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

[Para. (g) substituted by s. 4 of Act No. 57 of 1969 and by by s. 9 (e) of Act No. 2 of 1988.]

[S. 22 substituted by s. 4 of Act No. 68 of 1967.]

Repeal of laws.

23. The laws specified in the Schedule are hereby repealed to the extent set out in the fourth column of that Schedule.

[S. 24 repealed by s. 6 of Act No. 139 of 1992.]

Short title.

25. This Act shall be called the Sexual Offences Act, 1957.

[S. 25 substituted by s. 10 of Act No. 2 of 1988.]

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Schedule.

(Section 23.)

Province or Union.	No. and Year of Law.	Short Title or Subject of Law.	Extent of Repeal.
Cape.	Act No. 25 of 1893.	The Criminal Law Amendment Act, 1893.	So much as is unrepealed.
〃	Act No. 36 of 1902.	The Betting Houses, Gaming Houses and Brothels Suppression Act, 1902.	Sections 22 to 36 inclusive.
Transvaal.	Ordinance No. 46 of 1903.	The Immorality Ordinance, 1903.	So much as is unrepealed.
Orange Free State.	Ordinance No. 11 of 1903.	The Suppression of Brothels and Immorality Ordinance, 1903.	So much as is unrepealed.
〃	Act No. 19 of 1908.	The Suppression of Brothels and Immorality Amendment Act, 1908.	The whole.
Natal.	Act No. 31 of 1903.	The Criminal Law Amendment Act, 1903.	The whole.
Union.	Act No. 3 of 1916.	The Girls’ and Mentally Defective Women Protection Act, 1916.	The whole.
〃	Act No. 5 of 1927.	The Immorality Act, 1927.	The whole.
〃	Act No. 21 of 1950.	The Immorality Amendment Act, 1950.	The whole.
〃	Act No. 62 of 1955.	The General Law Amendment Act, 1955.	Section 15.