Sex offenders remain 'shielded' by SA privacy law after minister puts the brakes on national register

Minister of Justice and Constitutional Development Mmamoloko Kubayi has had to shelve her plan to publish the National Register for Sex Offenders (NRSO) by the end of February because offenders’ privacy needs to be protected.

Individuals named in the register are not allowed to work with children and people with disabilities.

Kubayi’s spokesperson confirmed this week that the NRSO will not be published any time soon, as legislative reform is needed and data privacy laws need to be upheld.

Gender-based violence researcher Lisa Vetten said she failed to understand why making the register public had become a priority, and how conducting the long legislative process would solve any of the systemic issues in South Africa that delayed and denied justice for thousands of rape survivors.

Vetten pointed out that the true systemic reform needed in South Africa was to strengthen the justice system and the police’s investigative capabilities, and to fix the basics like the microphones in court.

“Also, let me tell you, rich men and middle-­class men don’t end up in that register because they plead out their cases to lesser crimes. You don’t get on the register with a suspended sentence.”

Labelling it a “fig leaf” remedy, Vetten said international re­search done since the 1994 introduction of Megan’s Law in the US, which compels states to make sex offenders registers public, showed that they were not effective in many cases at reducing the recidivism rate – the tendency of a convicted criminal to re-offend – among rapists.

“In fact, there is more evidence to show that rapists have previous convictions for housebreaking, armed robbery and murder, so maybe we should have a register for that as well,” said Vetten.

Megan’s Law was named after Megan Kanka, a seven-year-old child who was raped and murdered by her sex offender neighbour in Hamilton, New Jersey. 

Kubayi had wanted the register to be made public after she assumed office. She held a meeting with her team to discuss efforts to combat gender-based violence and femicide.

In a statement to Parliament in February, she said it had become clear that various interest groups were advocating the release of the NRSO to protect vulnerable individuals, combat reoffending, promote accessibility and create a victim-centric justice system – an approach she fully supported.

“One of the key concerns raised was the accessibility of the National Register for Sex Offenders. Several NGOs have reported that gaining information from the NRSO is a slow and frustrating process. Ordinary South Africans and parents have no way to easily check whether the people they trust with their children have a history of sexual crimes,” said Kubayi.

In a case as tragic as that of Megan’s, Jakobus Petoors (55) received two life sentences in 2022 for the rape and murder of eight-year-old Reagan Gertse in Tulbagh while out on parole for a similar offence. He had been convicted of rape and assault with intent to do serious bodily harm on 24 July 2012 and sentenced to 12 years’ imprisonment. 

He had been released on parole only three months before he killed Reagan.

“In a privately held NRSO, perpetrators and repeat of­­fenders remain hidden, risking the lives of innocent children,” said Kubayi, adding that she had agreed that the register be made public in phases to address the most urgent needs of different sectors. 

She also said the law would have to be changed as it was illegal to make the register public.

Protecting privacy

The South African Information Regulator pointed out in a statement that making the NRSO public at this stage would break several laws. It welcomed Kubayi’s decision to pause plans to make it public as it was not supported by existing legislation.

But it added: “Sexual assault and gender-based violence are doubtlessly a scourge in South Africa, and all legally sound actions must be taken to protect the vulnerable against such egregious violations of their rights to bodily integrity and human dignity.” 

The statement said an additional concern for the regulator was that it was not clear how the Department of Justice and Constitutional Development intended to ensure that the publication of the NRSO would not violate the Protection of Personal Information Act (Popia).

The information contained in the NRSO includes the name and personal details of the offender, contact details, ID number and details of their court case. The register can only be obtained by applying to the relevant provincial registrar for sex offenders in the prescribed manner, and on issuance of a clearance certificate granting access. The NRSO was established in 2009, and includes the records of people found guilty and sentenced to imprisonment for sexual offences against children and vulnerable people. 

This includes sexual assault and rape, the use of sexual assault as a threat, flashing, showing pornographic material to vulnerable people, and the sexual grooming and exploitation of children. 

Those who are on the register are not allowed to adopt children or foster them, or to work with children and other vulnerable groups such as people with disabilities.

Protecting children

South Africa also has the Child Protection Register, which is administered by the Department of Social Development. It was set up to prevent potentially dangerous individuals from getting jobs that bring them into daily contact with children. This register, however, has a much broader scope and includes, for instance, the names of those found guilty in disciplinary procedures. 

Departments of education are com­­­­pelled to check both registers be­fore appointing someone who works with children. 

In a written response to a parliamentary question, Minister of Basic Education Siviwe Gwarube explained that both registers must be checked by provincial education departments before a person gets a job at a school. Gwarube added that human resources staff in the department could easily check them. 

“The provincial departments have been granted direct access to the National Child Protection Register through an agreement with the Department of Social Development allowing trained human resource practitioners to conduct suitability checks on educators. However, the NRSO is not directly accessible at the provincial level,” she said. 

In a shocking presentation on the vetting of educators and school staff in Gauteng, the legislature heard that 8,782 staff members had been vetted against the NRSO and nine identified as convicted sexual offenders. They included four primary school teachers, four general assistants and one food handler. The provincial education department had more than 86,000 staff members, of whom only 33,251 had submitted their details for vetting.

Vetten agreed that the process to get vetted through the NRSO was laborious and time-consuming. She said some NGOs in Gauteng, for example, had been waiting for 16 months to get prospective staff checked. 

“But making the NRSO public is not a solution,” said Vetten. 

“First, to get on the register, you have to be convicted. The National Prosecuting Authority proudly boasts about its 70% conviction rate, but the number of cases that actually go to trial is so small – fewer than 4,000 out of 42,000 cases reported last year. It is a tiny sliver of reality.

“I also want to ask what people will do with this information. Are you going to be googling all your neighbours? And then what are you going to do? 

“Can you burn down their house? Can you refuse to rent to someone? At what point does a person stop being guilty of a crime?

“It is a fallacious idea that all rapists are repeat offenders,” she added. 

At the same meeting in Parliament in February where the publication of the NRSO was discussed, the justice department provided devastating statistics showing the extent of sexual offences in South Africa: 53,000 sexual offences were reported in the 2023/24 financial year. Of these, 42,500 were rape cases.

Political and civic society pressure

Build One South Africa (Bosa) has been at the forefront of attempts to have the NRSO made public and submitted a petition that had been signed by 20,000 South Africans. 

“As it stands, South Africans remain in the dark about known sex offenders living in their communities, posing a serious threat to the safety of women and children,” said Nobuntu Hlazo-Webster, Bosa’s deputy leader and an MP. 

“We cannot continue to shield convicted sex offenders at the expense of innocent lives. Public access to this register is a necessary step towards accountability and prevention. Our communities deserve to know who these offenders are – those who roam our streets, enter our workplaces and infiltrate our homes, often putting our children at risk.”

Juanita du Preez, spokesperson for Action Society, an NGO in Cape Town that focuses on civil rights and community safety, said: “In South Africa, the register for sexual offenders is not available to the public. Parents have no way to check up on the people they trust their children with. Action Society demands that the sexual offenders' list be available to the public. Privacy laws shouldn’t protect perpetrators of sexual crimes.” 

A presentation done at the Gauteng Department of Education last year showed that 10,125 applications for vetting of educators and school staff against the NRSO remained outstanding. 

Writing for the law firm Cliffe Dekker Hofmeyr, its director of pro bono services and human rights, Brigitta Mangale, said it remained a criminal offence for anyone to disclose or publish information contained in the NRSO. But she added that it was im­­­perative for the register to be up to date and free of errors. 

“There has also been caution that corruption could undermine the register, allowing offenders to bribe their way out of accountability. Further concerns have been expressed regarding the potential impact on the families of perpetrators, especially their children, who may face stigma and backlash for crimes they did not commit,” she added.

Mangale said it could not serve as a standalone measure in the fight against gender-based violence in South Africa. DM

Have your say. Do you think the names of convicted sex offenders should be made public and, if so, how do you suggest this will protect the public? Write to heather@dailymaverick.co.za

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.