Registering and Removing Foreign Sex Offenders From the South African National Register for Sex Offenders

Abstract

Section 42 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act provides that a person who has been convicted of a sexual offence must have their details included in the National Register for Sex Offenders. This obligation is imposed on persons convicted not only in South Africa but also outside South Africa. The author argues that there should be circumstances in which the South African authorities can decline to include in the Register the details of a person who was convicted abroad. It is suggested that such details should not be included if there is evidence that the foreign trial leading to the conviction was a gross miscarriage of justice. It is also argued that the principle of double criminality will be applied before the details of a person convicted in a foreign country are included in the Register. Although section 51 of the Act provides for the circumstances in which the details of a person who has been convicted by a South African court can have their details removed from the Register, it is silent on the circumstances in which a person convicted in a foreign country can have their details removed from the Register. It is recommended that section 51 be amended to address that loophole. The article also discusses some of the issues that are likely to be encountered when dealing with the extraterritorial application of the Act.