The Bill emanated from research conducted by the South African Law Reform Commission (SALRC). Individuals were trafficked mainly for sexual exploitation and forced labour. South Africa was a signatory of the United Nations Protocol to Prevent, Suppress and Punish Trafficking which was signed in 2000 and ratified in 2004. The Department had had the Bill costed and this report would be made available later. Clause 2 contained the objectives of the Bill. Chapter 3 dealt with public awareness. In addition it criminalised human trafficking, prescribing penalties for offenders, the offence of bondage as well that of tampering of identity documents of human trafficking victims. Clause 10 empowered the courts in South Africa to have jurisdiction over an offence committed outside of the Republic. Clause 14 criminalised the act of trafficking of children and Clause 16 prohibited the prosecution of victims of trafficking. Clause 27 and 28 allowed for the compensation of victims as well as their repatriation.
The transitional provisions on the trafficking of persons as contained in the Children’s Act and Sexual Offences Act would be repealed by their incorporation into the Trafficking Bill. The gap was that there was no legislation that dealt with the trafficking of adults for labour or other purposes. The trafficking of adult victims sexual purposes was covered by the Sexual Offences Act. The common law and other legislation dealt with the prosecution of offenders but did not focus on the victims. Some offences that were not covered in current statutory provisions were bondage, the intentional destruction, confiscation, concealment of or tampering with identity documents of victims of human trafficking and the offence of making use of the services of victims of human trafficking. There were provisions in the Bill that could be promulgated immediately that did not require regulations and implementation plans. The offences listed in Chapter 3 of the Bill could be promulgated immediately whilst Chapter 2 definitely had cost implications and thus would not be immediately implementable.
The Committee was concerned about what could be done before the World Cup as an interim measure. Existing legislation had not made provision for victims and this was a concerning gap in the law. The Committee was also interested in the recent judgment of a trafficking case. There was agreement on the Bill not being rushed for purposes of the World Cup. The Committee was concerned about the general perception that there were no laws that dealt with human trafficking for purposes of sexual exploitation.
Contents of the Human Trafficking Bill
Mr Nelson Mathibe, Principal State Law Advisor, said the briefing looked at the origins of the Bill, the historical overview and the most important provisions. The Bill emanated from research conducted by the SALRC. Some of the main reasons that rendered individuals vulnerable to trafficking were war, poverty and political instability. Human trafficking was one of the most profitable criminal activities globally. People were trafficked mainly for sexual exploitation and forced labour. South Africa was a signatory of the United Nations Protocol to Prevent, Suppress and Punish Trafficking and punishing those that were responsible. South Africa had signed this protocol in 2000 and ratified it in 2004. The protocol dealt extensively with human trafficking and was aimed at combating human trafficking and protecting victims. The trafficking of humans significantly violated some of the fundamental rights in the Constitution.
South Africa currently lacked legislation that dealt with trafficking of persons as a whole. The SALRC had consulted widely during its research and it also issued a discussion paper on the issue of human trafficking. The Department had received comments on the Bill and some were accommodated where applicable. The Department had made use of the services of consultants to deal with the costing of the Bill. A report had been compiled and the Chief Financial Officer of the Department would brief the Committee at a later stage. The Bill had 11 chapters:
This chapter dealt with the definitions and the objects of the Bill. Clause 2 contained the objectives of the Bill which were to give effect to the Trafficking In Persons protocol, to provide for the prosecution of offenders, prevent the trafficking of persons, provide protection for victims of trafficking and to provide effective enforcement measures.
This chapter dealt with public awareness. Clause 3 provided for a public awareness programme about the prevention and combating of trafficking in persons. The programmes would be provided by the inter-sectoral committee and should be implemented by the Department. Clause 4 dealt with offences and penalties as well as extra-territorial jurisdiction. Clause 4(1) criminalised trafficking. The prescribed penalties were a fine or imprisonment. This included life imprisonment. A court had to impose a life sentence unless there were compelling reasons or circumstances for it to impose an alternative sentence. Clause 4(2) created an offence for the trafficking of persons. Clause 4(4) eliminated the defence of consent of the victims where there was exploitation for purposes of trafficking. Clause 5 dealt with bondage. Clauses 5 criminalised conduct that caused another person to enter into bondage. The maximum sentence was imprisonment of a period not exceeding 15 years. Clause 6 criminalised the possession and intentional destruction, confiscation, concealment or the tampering of identity documents of victims of human trafficking. Clause 7 criminalised the use of services from a victim of human trafficking. Clause 8 provided for the combating of the demand of services from victims of human trafficking. Clause 9 criminalised the act of carriers that transported victims of trafficking from and into South Africa. Clause 10 dealt with extraterritorial jurisdiction. It empowered the courts in South Africa to have jurisdiction over an offence committed outside of the Republic as long as the perpetrator was within the territory of the Republic.
This chapter concerned the identification and protection of victims of trafficking. It required officials to report to the relevant authorities if they reasonably suspected that a person was a victim of trafficking. Clause 14 dealt with the trafficking of children within the Republic. Clause 15 made it possible for foreign victims to be provided with health care. Clause 16 prohibited the criminal prosecution of victims of human trafficking.
This dealt with the status of foreign victims of trafficking. Clause 18 allowed for foreign victims of trafficking to be allowed a temporary permit to reside in South Africa.
This chapter dealt with compensation for the victims of trafficking from the state. In terms of Clause 27, a victim of trafficking may be provide with compensation in addition to a sentence that had been imposed on the perpetrator. Clause 28 allowed the prosecutor to apply for state compensation for the expenses it incurred for the care, accommodation and transportation of victims. Clause 35 provided for international cooperation for South Africa and all other signatories to the UN protocol.
Gaps in current legislative framework and offences not covered
Ms Lowesa Stuurman, Principal State Law Advisor, said her presentation dealt with the gaps in terms of the current legislative framework. The Sexual Offences Act only criminalised human trafficking offences for purposes of sexual exploitation. The Children’s Act only dealt with the trafficking of children for all purposes. The trafficking of adult persons for purposes other then for sexual purposes was not addressed by current legislation. Common law and statutes only dealt with the prosecution of offenders. No laws dealt with the prevention of human trafficking or the protection of victims. There were several offences in the Bill that were not found in the Sexual Offences Act. Some of these were bondage, the intentional destruction, confiscation, concealment or the tampering of identity documents of victims of human trafficking and the offence of making use of the services of victims of human trafficking. Some of the new offences that were created by the Bill were covered in some way in the Children’s Act. The transitional provisions on the trafficking of persons as contained in the Children’s Act and Sexual Offences Act would be repealed by their incorporation into the Trafficking Bill.
The Department had identified provisions in the Bill that could be promulgated immediately. These were provisions that did not require regulations and implementation plans due to cost implications. These provisions were on page 14 in paragraph 37 of her document and they comprised the offences listed in Chapter 3 of the Bill. Promulgation could be done with immediate effect. Clause 10 and 11 of the Bill were closely linked with the clauses that contained the offences and thus they would have to be promulgated simultaneously with the offences provision. Clause 16, 35, 37 and Chapter 17 could be included in a promulgation process. Several provisions had been highlighted on page 16 that one would not be able to promulgate with immediate effect. These provisions had to have regulations and carried cost implications. Chapter 2 definitely had cost implications. The reporting and referral of adult victims of trafficking would also require regulations. One would need regulations for foreign victims about the manner in which they would be permitted to remain in the country and the conditions under which such an approval would be granted. There was a similar provision in the Children’s Act to the one contained in the first clause of Chapter 8 of the Bill. The repatriation of adults had cost implications and needed regulations. The Bill did not provide for a time period within which the national Directives and Instructions had to be issued after the commencement of the Act.
Mr S Swart (ACDP) thanked the Chairperson for allowing the meeting as well as the Department for putting together the lengthy documents at such short notice. The victims of human trafficking were not covered in existing legislation. The Committee would have to look at conducting better oversight. This would be filling the gaps in existing legislation. The Committee had to decide how it was going to go about doing this. The Committee had to finalise something before the World Cup and a clear message had to be sent out that trafficking would not be tolerated. Could there be comment on the Kwazulu-Natal (KZN) judgment [State v Sayed and Another]. If the Committee were to rush things then there would be the danger of having unintended consequences.
Mr J Jeffery (ANC) expressed concern that the Department and the SALRC had been working on the Bill for quite some time. The Committee had to be cautious with this Bill as it involved a number of departments. What were the gaps that should be covered from a public policy point of view for the World Cup? Should the Committee focus on coming up with a new law in a short period of time or focus more on oversight and monitoring of the implementation of existing laws?
Ms N Michael (DA) said Parliament did not legislate for the Federation of International Football Association (FIFA) but for the people of South Africa. The legislation could not be rushed so that it would be ready in time for the World Cup. A lot of research had to go into the inter-departmental relationships for the Bill. Were there any figures that the Department could provide the Committee about human trafficking victims? There was a pamphlet that was handed out by the the Hawks where one could report human trafficking but the number dialed to the offices of the National Prosecuting Authority (NPA) where no one knew where a person could report a human trafficking crime. The repatriation of victims was a concern as it had dire financial consequences, how would this be dealt with?
The Chairperson shared Ms Michael’s concern over the repatriation issue.
Ms Stuurman said it was not true that South Africa did not have legislation for human trafficking. There were current common law and statutory provisions that could be use to prosecute certain aspects of the crime of human trafficking. Unfortunately these provisions did not deal with the prevention of human trafficking. The main concern for the World Cup was that persons would be trafficked for purposes of sexual exploitation. The Sexual Offences Act criminalised the sexual exploitation of all persons. The Sexual Offences Act did not really address any protective measures for human trafficking victims. The Department did not have official figures for persons trafficked across the border of South Africa. The International Organisation for Migration (IMO) was actively involved in assisting victims of trafficking as it had programmes for the repatriation of victims. The IMO would work with the Department. There were no government processes in place to deal with victims. The Department of Social Development liaised with various international organizations in the instances of children.
Mr Swart commented that the conviction in the recent judgment in KZN was based on racketeering and the Sexual Offences Act had been used.
Mr Jeffery said that according to a News 24 report the state had used racketeering laws relating to sexual exploitation to convict the offenders. There was a law that prohibited human trafficking for sexual purposes, why then would the conviction be based on racketeering and not the Sexual Offences Act? When did the Sexual Offences Act come into effect? Why had it taken so long for there to be a conviction for human trafficking? It seems as if the law enforcement agencies perhaps did not know the law enough. There was an act that prohibited trafficking for sexual purposes, why was there this perception that there was no such law?
Mr Swart was concerned that the arrest was made in 2007 but the conviction was only on 23 March 2010. The conviction was based on 19 counts including racketeering. There was consensus however that there were gaps. Could there be a comment on the extraterritorial application of the Bill. What was being done about the victims and what more could be done for them?
Mr Deon Rudman, Deputy Director General: Constitutional and Legislative Development, said he would try to get a copy of the judgment in the KZN case and prepare a report. It was not clear why the conviction had taken so long. The Sexual Offences Act came into operation in 2008 and it was difficult to say why there were no prosecutions or even if there was any trafficking going on at all at that time. The Department simply did not have any statistics to provide on human trafficking, the reason could be the fact that offenders were being prosecuted on the basis of common law rules. The Sexual Offences Act criminalised trafficking for sexual exploitation only and the Children’s Act dealt with the trafficking of children for any purpose. The gap was that there was no legislation that dealt with the trafficking of adults for labour or any other purposes.
Mr Jeffery said that it was obvious that there was a gap, the issue was should there be a rush to finalise something before the World Cup. It would be useful to hear from the National Prosecuting Authority (NPA) what they were doing about human trafficking. It would be useful to find out from the NPA and the police what they were doing to combat trafficking. It seemed like the main issue was implementation for the World Cup and a lack of understanding of the law.
Mr Rudman said that there was a unit within the NPA that dealt with trafficking. A report would be compiled on why the conviction was three years after the arrest as well as a report on the judgment with the NPA’s input. Personally, he said that the legislation should not be rushed. All the offences in the Bill were covered at a basic level - there were common law rules and statutory laws that covered many of the offences and therefore the legislation should not be rushed. The Bill was based on the UN protocol to a very large extent. Current legislation did not deal with victims, their repatriation or the combat and prevention of human trafficking. A number of provisions were in the protocol that dealt with a lot of issues not covered in legislation. The issue of the pamphlet could be followed up as well. The Bill took a long time because the Bill itself was complex and the submissions and state law advisory process took a long time to finalise. Extraterritorial jurisdiction was also not covered in present legislation.
Ms Stuurman added that the Sexual Offences Act and the Children’s Act dealt with extraterritorial jurisdiction in terms of which one would be able to prosecute where an offence was not committed on South African soil. The provisions in the Bill on extraterritorial jurisdiction were wider as there was also a provision for universal jurisdiction. This meant that South African courts would be able to prosecute wherever an offence was committed.
Mr Swart said that there still had to be an emphasis on the victims. Was there something in the protocol that could be used as an interim measure as this issue had to be addressed.
The Chairperson determined that there was clarity on the issues and the Committee should wind up.
Mr Jeffery said that the criminalisation of the carriers was already in the Sexual Offences Act. There was also a provision that said, “A commercial carrier was liable for the trafficked persons care, safekeeping and safe return from South Africa” In response to the issue raised by Mr Swart one could look at engaging with the Director Generals of the other stakeholder Departments to see what measures could be put in place for the benefit of victims during the World Cup.
Ms Stuurman said the major gap was the protection of adult victims. The relevant stakeholder departments would be able to comply with most of the provisions in the Bill and a process could be initiated to engage with them to see what could be done for purposes of the World Cup.
Mr Rudman said that this could be done.
- United Nations Protocol to Prevent, Suppress and Punish Trafficking in persons
- Tsireledzani: Understanding The Dimensions of Human Trafficking in Southern Africa
- Status Quo Report
- Justice Lotan Case 041/2713/2008
- Justice and Constitutional Development Briefing on Trafficking in Persons
- Briefing on The Prevention and Combating of Trafficking in Persons Bill
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