The government still has to sort out legislative processes regarding the constitutional rights of convicted criminals, making it almost impossible to announce the national register of sexual offenders this month.
Speaking at a Kgalema Motlanthe Foundation women’s event last week, justice minister Mmamoloko Kubayi said the department would publish the register by the end of February.
She said publishing the register would ensure children and people living with disabilities are protected from sexual offenders.
In the latest crime statistics for July to September 2024, there were 12,765 sexual offences cases reported to the police.
Publishing of the register would allow the public access to the names of people convicted of sexual crimes and the government also hopes that it would act as a deterrent to would-be offenders.
Now, the register is accessible only to authorities and employers to vet employees and ensure people convicted of sexual crimes do not work with children and vulnerable people.
But for years there have been concerns that publishing the register would infringe on the privacy of those convicted and their families.
Sources within the department, who declined to be named, said the minister “jumped the gun” in making the announcement. She announced the move before the department finalised the paperwork to protect the government against possible future litigation in limiting the constitutional right to privacy, said the source.
The day she made the speech, January 28, the department contacted the information regulator to advise on the “possibilities” of publishing the register and legal implications.
“The regulator received a request from the department to consult on the implementation of the Criminal Law (sexual offences and related matter) Amendment Act, 2007, as it relates to the publication of the national register for sex offenders,” information regulator spokesperson Nomzamo Zondi told Business Day.
“The letter addressed to the regulator was to request a consultative meeting to explore the possibilities of making the register public.”
Zondi said the regulator and the department were yet to determine a date to meet to discuss the merits of the matter before making a determination.
The constitution does have a provision for limiting the rights of convicts.
According to section 36 of the constitution, “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity.”
The department has not yet published a policy or legislation addressing the legality of publishing the register.
Dr Shaheda Omar from the Teddy Bear Foundation, an organisation offering healing services to children who have been abused, said publishing the register could spark mob justice in communities.
“There are other problems that are going to emerge because of the sex offenders register being made public,” said Omar.
“We understand we are looking at the protection of vulnerable population groups, women and children but perpetrators do not exist in isolation, they have families and children.”
She said divulging that information publicly exposes other people and violates their constitutional rights to privacy and protection.
Omar said it was important for perpetrators of sex crimes to be punished and for society to be protected from repeat offenders.
“Opening the register to the public may incite violence and mob justice if people feel they are not satisfied with the punishment the courts had meted out.”
Civil rights organisation Action Society spokesperson Juanita du Preez applauded Kubayi’s decision.
“We [the public] will be able to protect our loved ones and ourselves [women] from sex offenders. Sexual crimes are a big problem in this country.”
“I do not think you should be given privacy if you commit these crimes against vulnerable people,” Du Preez said.
“For the victimisation part, we do understand that could be a consequence. We want to see what measures they will put in place to protect these family members. But then, if you want to be harsh, maybe the perpetrators should have thought about that before committing the crimes.”
Zeenat Sujee from Section 27, another organisation that fights for children’s rights, said the department should ensure it puts mechanisms in place to prevent mob justice and that survivors are protected from further persecution from perpetrators.
“We note the measures the minister is trying to take to ensure women and children are safe. However, the response to gender-based violence requires more concerted efforts. To get the register of sexual offenders to work we implore that departments implement their legislative obligations,” said Sujee.
“The release of the list is a progressive step to curb GBV [gender-based violence],” he said.
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