| (1) |
The magistrate must, as soon as is reasonably practicable, consider the application contemplated in section 30, in chambers and may call for such additional evidence as he or she deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings. |
(2)
| (a) |
For the purpose of the proceedings contemplated in subsection (1), the magistrate may consider evidence by or on behalf of the alleged offender if, to do so, will not give rise to any substantial delay. |
| (b) |
Evidence contemplated in paragraph (a) may be adduced in the absence of the victim, if the magistrate is of the opinion that it is in the best interests of the victim to do so. |
| (3) |
If the magistrate is satisfied that there is prima facie evidence that— |
| (a) |
a sexual offence has been committed against the victim by the alleged offender; |
| (b) |
the victim may have been exposed to the body fluids of the alleged offender; and |
| (c) |
no more than 90 calendar days have lapsed from the date on which it is alleged that the offence in question took place, |
the magistrate must—
| (i) |
in the case where the alleged offender has not been tested for HIV on application by a police official as contemplated in section 32, order that the alleged offender be tested for HIV in accordance with the State's prevailing norms and protocols, including where necessary— |
| (aa) |
the collection from the alleged offender of two prescribed body specimens; and |
| (bb) |
the performance on the body specimens of one or more HIV tests as are reasonably necessary to determine the presence or absence of HIV infection in the alleged offender, |
and that the HIV test results be disclosed in the prescribed manner to the victim or interested person, as the case may be, and to the alleged offender; or
| (ii) |
in the case where the alleged offender has already been tested for HIV on application by a police official as contemplated in section 32, order that the HIV test results be disclosed in the prescribed manner to the victim or interested person, as the case may be. |
| (4) |
An order referred to in subsection (3) must be made in the prescribed manner and handed to the investigating officer. |
| (5) |
The investigating officer must, as soon as is reasonably practicable, after an application has been considered— |
| (a) |
inform the victim or interested person, as the case may be, of the outcome of the application; and |
| (b) |
if an order has been granted in terms of subsection (3), inform the alleged offender thereof by handing to him or her a notice containing the information as prescribed and, if necessary, by explaining the contents of the notice. |
[Date of commencement of section 31: 21 March 2008]
Public Service Commission Act, 1997
