Sexual Offenders Register Clearances

What is it?

Amendments made to the Sexual Offences Act, which were promulgated in 2007, made provision for a Sexual Offenders Register (Chapter 6).  This Legislation applies to anyone who employs staff who may come into contact with children or mentally disabled people, or areas where children or mentally disabled people congregate.  It forces all employers in this demographic to have all their staff cleared against the Sexual Offenders Register.

 

Why is it necessary?

South African legislation has some of the best reactive legislation in the world, however, we are sadly lacking in the proactive Legislation and the clearance against the Sexual Offenders Register and Child Protection Register are really the only 2 pieces of proactive legislation available.  It is for this reason that the Sexual Offences act and Children’s Act makes it mandatory for all employers at schools, organisations, clubs or associations whose staff may come into contact with children or mentally disabled people, to have all their staff cleared against the appropriate register.

 

 

What are the consequences of not clearing your staff?

The clearance against this register is mandatory and failure to clear staff against this register can result in criminal prosecution and a sentence of a fine and up to seven years imprisonment, or both. That’s for failing to check against the Sexual Offences Register.

 

The clearance process

The process is as follows:

  1. Book a Fingerprint technician for a specific date and time for your school
  2. Applicant to sign affidavit
  3. Applicant’s fingerprints captured biometrically (5 minutes per person)
  4. Fingerprints will be uploaded
  5. Results back in 5 days
  6. This process needs to be completed every 24 months
  7. The Guardian will supply electronic certificates for each “clean” individual as well as an electronic certificate for the school stating that the checks have been conducted.
  8. All information gathered will be dealt with in a confidential manner, in accordance with the Act and will be submitted to the necessary departments;
  9. All legislative requirements will be met to ensure that the school and staff have completed all checks;
  10. The Guardian will send through a list of Frequently Asked Questions that the school management can disseminate to all staff so as to answer the question of why which many teachers and service providers may ask.
  11. For the school to be completely compliant all service providers to the school would also need to be cleared. We will supply you with a letter that can be sent out to all service providers explaining the process and costs.
  12. The process used by The Guardian, has been vetted by a Senior public prosecutor and found to be aligned 100% to the legislation.

Frequently Asked Questions:

1. What is the Sexual Offenders Register?

In 2007 amendments were made to the Sexual Offences Act (SOA). So Many amendments in fact that a new Act was promulgated i.e. "The Sexual Offences Amendment Act of 2007". This Act saw the introduction of many changes like the age of consent for sex etc. Chapter 6 of this Act saw the introduction of a Sexual Offenders Register (SOR). This SOR was formed to record the details of anyone who has or will commit a sexual offence of any kind against a child or a mentally disabled person.

2. If the Act was promulgated in 2007 why check now?

The Registrar of Sexual Offences has indicated that the register is 90% complete and that inspections of schools are going to start.

3. Why do I have to be checked?

Every Act has definitions and this one is no different. The two important definitions when answering this question is that of employee and that of employer and their obligations. An employee is anyone who receives remuneration and anyone who doesn't (a volunteer) for doing a job. The definition of an employer is essentially anyone who has any management authority over anyone who may through the course of their employment come into contact with a child or a mentally disabled person or an area where children or mentally disabled persons may congregate.
The employer, by above definition, has to check all employees, by definition above, and failure to check is punishable by a fine or seven years imprison or both fine and imprisonment.

4. My job doesn't place me with children very often, why must I be checked?

By virtue of the definition above the wording is, anyone who MAY come into contact with a child or an area where children congregate, so even if it is just a situation of, "very occasionally you come into contact with children", this Act still calls for you to be cleared.

5. What if I have a criminal record but not for a sexual offence?
The Guardian, the service provider who has been contracted to do these checks privately, will know of all previous convictions, but ethically, unless it is a crime contemplated in the SOA, then that information cannot and will not be divulged to anyone, including your employer, without your written consent.
6. Who has access to these results?
If you have committed a crime contemplated in the SOA then the employer will have access to these details. The employer/headmaster may designate an administrator to handle the administration of the results, like an HR administrator or another administrative person. This designation must be done in writing. No one else may designate a person to handle these results, not even the designated person, only the employer, (Headmaster) may designate someone.
Once that designation is made, both the employer and the designated person need to be aware that disclosure of any of the results, either positive or negative, is a criminal offence and punishable by three years imprison or a fine or both a fine and imprisonment.
7. What if I don't want to be checked?
If you don't get checked the employer must terminate your Contract of Employment or move you to a position that you will never have access to a child or a place where children congregate. If the second option is not a viable one for the school, then the principal must terminate the Contract of Employment.
8. What if my name is on the register?
If your name is on the register the principal must, if possible, move you to a position where you cannot access children or places where children congregate. If that is not possible then your Contract of Employment must be terminated.
9. Can I get a copy of my certificate?
The Act says that an employer must check in respect of an employee and a person can check in respect of themselves. Understanding that the employer did the check and the results belong to the employer, the employer can, if they choose to, give an employee a copy of their certificate. This may be considered in certain circumstances, like if a extra curriculum teacher teaches at other schools or a teacher is leaving the school for employment elsewhere, however it must be borne in mind that this is at the discretion of the employer.
10. How long does the check take?
The time spent with the fingerprint technician is 3-5 mins.
11. How accurate is it?
Based on the fact that it is done with fingerprints and not ID number it is extremely accurate.
12. Why fingerprints and not ID number?
Fingerprints are far more accurate and it prevents the scenario of a person who has got a criminal record using a fraudulent ID document to get cleared.
13. What is the process of getting checked?
You will expected to sign a prepared affidavit. This affidavit states that you have no reason to believe that your name is on the register, this is a legal requirement of the Act. Once the affidavit is signed you will be expected to complete an attendance register. The details captured on this form are the details needed to complete to the forms necessary for the documents to be submitted.
14. What if the scanner cannot read my fingerprints?
In that circumstance, the fingerprint technician will prepare a declaration stating that he was unable to capture your fingerprints and the reasons why, and your status will be cleared by ID number.
15. What crimes are contemplated in the Act?
All forms of crimes of a sexual nature where a child or a mentally disabled person is the complainant.
16. How often does this need to be done?
The legislation states that a clearance may not be more than 24 months old.
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