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Sex Offenders and Employment in South Africa

August 2022

SEXUAL OFFENCES AMENDMENT ACT JULY 2022 Whilst this topic has in the past mostly been important to schools and places where children or mentally disabled people live or frequent it has now become an issue of importance to many more employers with the latest Criminal Law Sexual Offences and Related Matters Amendment Act 2021 which came into operation on 31 July 2022 Introduction The Act prohibits the employment of sex offenders in certain circumstances as well as disqualifying such persons from working with or obtaining licenses for certain activities Central to this is the National Register for Sex Offenders which provides a record of people who had been convicted of sexual offences and is maintained by the Ministry of Justice Prior to the latest amendments the focus of the Register was only on sexual offences committed against children and mentally disabled people and protection of these categories Now provision is made for inclusion in the Register of persons who have been convicted of any sexual offence as described in s40 of the Act It does not matter if the sexual offence had been committed prior to starting employment with the employer or in a foreign jurisdiction A new sexual offence of sexual intimidation s14A has also been created by the amendments i e when intentionally threatening someone that a sexual offence will be committed against them or someone close to them This Register is not open to the general public but the Act s42 does specify that interested parties may apply in the prescribed format to the Registrar to determine if a person s details have been included in the Register Once this information is obtained it is however a criminal offence to disclose it to anyone outside of the parameters of the Act This document is generally referred to as a clearance certificate which employees and prospective employers have been able to apply for Who are protected Whilst the statutory provisions in the past only pertained to people convicted of offences against children or the mentally disabled and only related to workplaces where such offenders might have had access to the latter categories the Act has now been significantly broadened and the protections extended to a new category of vulnerable persons A person who is vulnerable means Judith Griessel 1

a child or person with a mental disability a female under the age of 25 who studies at a higher education institution or receives vocational training at another type of training institute or as part of their employment or who lives in a place or facility used primarily as a residence for such persons a person being cared for or sheltered in a facility providing services to victims of crime a person with a physical intellectual or sensory disability and who receives communitybased care or lives in a place mainly used as a residence for or that provides 24 hour care to such persons a person who is 60 years or older and who receives community based care or lives in a place mainly used as a residence for or that provides 24 hour care to such persons Prohibitions related to sex offenders S41 A sex offender who qualifies for inclusion in the Register may not be employed to work with or hold any position related to their employment or for any commercial benefit which places them in a position of care supervision or authority over a person who is vulnerable Also sex offenders may not be granted a license to manage or operate any business concern or trade related to the supervision or care of vulnerable persons Similar prohibitions apply to foster care care givers and eligibility for adoption Who are employers for the purposes of the Act A distinction is drawn between public and private sector employers Employer in the private sector means any person organisation institution club sports club association or body that employs employees who during the course of their employment will be working with or placed in a position of authority supervision or care of a person who is vulnerable or owns manages operates has any economic interest or other involvement in the operation or management of any entity or trade business concern relating to the supervision care of or working with a person who is vulnerable What are the obligations of Employers The definition of employee is wide enough to include anyone who in any manner assists in carrying on or conducting the business of an employer whether or not they are entitled to receive any payment or compensation for it This could potentially include volunteers service providers and consultants who has access to the workplace Judith Griessel 2

Relevant employers or business owners as defined above have to make an inquiry about this aspect from both existing and prospective employees and obtain and verify their clearance in this regard Although criminal history is special personal information under the Protection of Personal Information Act POPIA an exception for legal processing applies if there is a statutory obligation Consent is therefore not required Employers will however have to ensure also under POPIA that the information is accurate and updated so it will be prudent to revisit this enquiry from time to time with existing staff Recruitment procedures and application forms might also have to be updated to make provision for this information to be obtained and verified Contracts of employment should specify that clearance in this regard is a pre condition of the employee s employment It should also place an obligation on the employee to inform the employer if this status should change and for updated clearance documents to be provided from time to time The employer should also ensure that commercial contracts with service providers include the necessary warranties in this regard In respect of existing staff the employer is obliged to take reasonable steps to prevent an employee whose name appear in the Register from having continuing to have access to vulnerable persons in the course of their employment such as transferring them to another position if this is viable If such internal steps can however not ensure the safety of the vulnerable person s such an employee s employment must be terminated immediately in terms of the Act Employers should however be cautious and not take the reference to immediate termination too literally in terms of our labour law some kind of process will still need to be followed before the employment contract can be terminated It may be approached as an operational incapacity situation and the employee may claim that it is a mistake or may qualify to apply for removal of their details from the Register in terms of the Act If the employee has lied about their status it could potentially be misconduct and a disciplinary process should follow The parties may also decide to enter into a separation agreement Whilst this process is under way the employer should however take the necessary practical steps to ensure that the employee does not pose a risk to vulnerable persons In addition any person who has knowledge a reasonable belief or suspicion that a sexual offence has been committed against a person who is vulnerable must report this immediately to the police Failure to do so will constitute a criminal offence in terms of s54 of the Act If such report is made in good faith the person reporting it is indemnified from civil criminal prosecution for making the report What are the obligations of employees Employees including applicants for employment have a duty to disclose to the employer if they have been convicted of a sexual offence and or qualify for inclusion in the Register Not doing so will constitute a criminal offence under s46 of the Act and the employer has to Judith Griessel 3

terminate their employment in terms of s45 Prospective employees who will be working in an environment around vulnerable persons will most likely have to obtain a clearance certificate and have this available during the recruitment process Conclusion Whilst organisations and businesses dealing with children and or the mentally disabled have become used to such requirements over the past few years the recent amendments have broadened the scope of sex offenders whose details must be included in the register so existing information will have to be updated It may take a while for the added information to appear in the Register but in the interim it may be prudent to advise employees of the legislative changes and to encourage them to come forward and disclose their status to the employer if they will now be newly eligible for inclusion in the Register There are also many additional employers and business owners who will now have to take notice and implement the necessary steps to comply with the provisions of the Amendment Act For example this will be relevant to old age homes care facilities universities other training facilities and any employer who offers vocational training The process of obtaining a clearance document from the Registrar has been in operation for the past few years and apparently has been working well albeit a bit slow in terms of response times Whether this will change in view of the amendments remains to be seen The alternative is for employers employees to approach the police in order to obtain the necessary clearance or to use private service providers that offer this service Judith Griessel 7 August 2022 __________________________________________________________________________________ www griesselconsulting co za Judith Griessel 4