Prevention and Combating of Trafficking in Persons Bill: public hearings

Meeting report

Commission on Gender Equality (CGE) submission
Advocate Kamraj Anirudhra, CGE Parliamentary Liaison Officer, noted that the current test for any pledge to be recognised as debt bondage was limited to economic factors. This offered limited protection and the CGE recommended that the definition should include contra bonos mores.The deprivation of access to support services and basic rights for victims of human trafficking had not been included in the definition of exploitation. The CGE recommended that deprivation should be included in the definition of exploitation.
The CGE supported the 15-year minimum sentence for the offence of debt bondage. The Commission welcomed the revision of Section 6, which dealt with the travel documentation of victims of human trafficking. The Commission also welcomed the penalty of 10 years for the use of services of a victim of human trafficking. Section 11 should take into consideration the relationship between a victim and the perpetrator; whether a compensation order would be made and the occurrence of a life threatening infection as a result of the trafficking. The CGE was not in support of a five-year period for permanent residency that commenced on the date of issue of the permit. It was reasonable for the five year term to be calculated when the victim first entered the Republic as a trafficked person.

Section 21(3) did not meet the standards contemplated in section 28 of the Constitution. It was recommended that children in the care of adult victims should also be assessed in respect of their need for care, protection and development needs. The CGE was of the view that monetary jurisdiction in cases involving the trafficking of persons should be done away with or that district courts should not hear such matters as they were limited in terms of the compensation amount they could grant. It felt strongly that  the CGE should be allowed to be part of the Inter-sectoral Committee as well as the Ministry for Women, Children and People with Disabilities.

Discussion
Mr S Swart (ACDP) asked if the CGE had conducted any investigations into the extent of trafficking in South Africa. The recommendations were substantial. There was poor collection of hard data in South Africa.

Mr J Jeffery (ANC) said that the Committee was trying to produce a user-friendly piece of legislation; therefore the term contra bonos mores was contrary to this as not everybody was a lawyer. The request for the functions pertaining to the review mechanism, to be given to the CGE went beyond the scope of its own powers. Had the CGE thought through its request to be on the Inter-sectoral Committee as this body comprised government departments? The CGE had a monitoring function. Would it be able to perform this function whilst it was also part of the Inter-sectoral Committee?

Dr M Oriani-Ambrosini (IFP) said that he did not have a problem with the Bill.

Ms H Malgas (ANC) asked what contra bonos mores meant.

Mr Anirudhra replied that it meant contrary to good morals.

Ms Yvette Adams, CGE Commissioner, said that the CGE did not have proper research that had looked into the extent of trafficking. What the CGE could say to the Committee with certainty was that most of the trafficking happening in the country was internal. Most of the trafficking was for domestic work as opposed to sexual purposes. A separate budget for research should be set up. The job of the CGE was not just to monitor. It was also required to research and educate on matters of gender equality. The CGE often found that its research was normally for government departments and thus it sat on a number of committees where it played both monitoring and educational functions.

Mr Anirudhra added that the limitation of the “pledge” to economic considerations only was narrow as it did not cover certain scenarios. For example, a trafficker entered into a twenty-year contract of slavery with a victim but there was some sort of remuneration. Such a contract would be contrary to good morals. Contra bonos mores was an acceptable term to use. If the review mechanism were to be given to the CGE then it would be able to monitor the implementation of any poor decisions. It would be healthy if the CGE were to be part of the Inter-sectoral Committee because this body formulated policy on human trafficking and the CGE could exchange ideas with government departments.

Southern African Catholic Bishop’s Conference (SACBC) submission
Bishop Kevin Dowling, Bishop of Rustenberg, said that trafficking had always been of considerable concern to the Catholic Church and the SACBC. The latest version of the Bill provided a robust legal framework as well as a holistic approach to the prevention of trafficking. The Bill did not make specific reference to the issue of ‘demand’ as it was outlined in Article 9, Clause 4 and 5 of the Protocol. The issue of demand was important and needed to be reflected within the broader aims of the Bill, in addition to its incorporation within prevention strategies. The definition of ‘trafficking’ in the Bill was welcomed. The definition of  ‘abuse of vulnerability’ was narrow as the Bill made specific reference to ‘physical or psychological abuse’. The Bill was vague on how the Inter-sectoral Committee would ‘discourage the demand for and supply of victims of trafficking…’ The provisions and penalties set out in clauses 4, 5, 6, 7, 8 and 9 would have to be strictly enforced in order for them to constitute a reasonable deterrent. Clause 12 did not take into consideration instances where members of the police were involved in trafficking. Clause 13(7) essentially branded victims of trafficking and dehumanised them. Clauses 17, 18, and 19 were welcome as they allowed foreign victims of trafficking a recovery and reflection period not exceeding 90 days. The provision in Clause 20(2)(b) for financial assistance to be made available to accredited organisations was welcomed. 

Discussion
Mr Swart asked for any anecdotal evidence of the extent of human trafficking through the work of the church. Could the SACBC further explain its view on the collusion of law enforcement human trafficking perpetrators?

Mr S Ntapane (UDM) asked if the SACBC was not of the view that there were enough sections that referred to women and children in the Bill. Were there any proposed amendments from the SACBC for Clause 3(1)(c) since it complained of its vagueness?

Ms N Michael (DA) disagreed with the proposal that the words ‘physical or psychological abuse’ should be removed. It was essential that they remained in the Bill. What was the SACBC’s view on how the Inter-sectoral Committee would be able to best achieve its mandate?

Ms B Thompson (ANC) said that it was a pity the Bill was drafted before the establishment of the Ministry of Women, Children and People with Disabilities. Did the Bill have the necessary clauses for compensation that could be afforded to victims?

Father Peter John, Parliamentary Officer of the SACBC, replied that Ms Michael was correct and the words ‘physical or psychological abuse’ should not be deleted but the clause had to have an extension. The issue of the collusion of law enforcement with perpetrators of human trafficking often cropped up and the SACBC thought it appropriate that it should be flagged. The comment about the Inter-sectoral Committee was not a criticism but an invitation for further dialogue with various stakeholders.

Ms Samantha Richmond, SACBC Researcher, said that the issue of demand would be better handled if there were more statistics available. She agreed the needs of women and children had been strongly highlighted in the Bill.

Ms P Duncan (DA) disagreed that the certification in Clause 13 was a form of branding. This was a protective measure that was there to try and ensure that a victim was not taken advantage of again.

Institute for Security Studies and Women’s Legal Centre: submission
Ms Mushahida Adhikari from the Women’s Legal Centre stated that policing of human trafficking alone could not address the root causes of trafficking. These causes included gender inequality, the demand for cheap labour, limited economic opportunities, discrimination, violence and abuse. An effective anti human trafficking strategy had to be grounded in a human rights approach. There had to be effective labour protection strategies in place. The cost of implementation of the Bill had to be done and included in Memorandum of the Bill. The second part of the preamble should be slightly amended as there was no evidence that trafficking was on the increase. There was no baseline data in South Africa for human trafficking. There was a need for precise unambiguous definitions in order to facilitate effective policing and prosecution of offences. The definition of ‘exploitation’ was drafted very widely. The definition should be flexible enough without being so wide that it was open to challenge. ‘Exploitation’ should be re-drafted to include slavery and similar practices; the exploitation of the prostitution of others; other forms of sexual exploitation; forced labour or services; servitude or the removal of organs.  The definition of forced marriage could lead to the criminalisation of the traditional practice of ukuthwala. Forced marriage should be dealt with in a separate statute, which took into account the social, economic, cultural context of forced marriage in South Africa.

The definition of ‘sexual exploitation’ read together with the definitions of ‘exploitation’ and ‘trafficking’ as currently drafted deemed all forms of adult sex work to be trafficking. An approach, which conflated trafficking with sex work rendered all sex workers as victims and ignored the economic and social contexts of their work. The definition of ‘sexual exploitation’ was drafted in such a way that it required the valid consent of both parties to be absent before they could marry. ‘Sexual exploitation’ should be re-drafted to include those who participated in sex work, servitude or the production of pornographic material. Anyone under the age of 18 participating in sex work should fall under the category of sexual exploitation. The definition of ‘trafficking’ in this Bill was much expanded from the previous version. It was not practical nor clear. A clear and accurate definition of ‘trafficking’ would more likely result in the successful prosecution of perpetrators and identification of victims. There should be caution in awareness raising in the absence of evidence of whom was vulnerable. The manner in which the section on offences and penalties was drafted could result in lessors unlawfully violating the rights of privacy of innocent lessees.   It also did not make provision for the protection of the confidential reporting of offences. The section should be re-drafted with these concerns in mind. Clause 19 was unfair as it placed the onus of proof of potential harm if returned to the country of origin, on the victim of trafficking. The Department of Home Affairs was in a better position to assist victims of trafficking to prove that they were victims. Placing this onerous burden on a victim was unfair.  The compensation of victims of trafficking might be more manageable through a more general victim of crime compensation fund, which could be funded from the proceeds of crime.

Additional safeguards should be put in place for the deportation and repatriation of victims of trafficking since there were widespread abuses in respect of repatriation procedures of asylum seekers.

Discussion
Dr Oriani-Ambrosini said that the issue of ukuthwala was a constant one and needed to be dealt with. Why should ukuthwala be dealt with in separate legislation as opposed to the Trafficking Bill?

Mr Swart said that the submission stated that women and children were not disproportionately victims of trafficking. There was a United Nations report that contradicted this. What were their views on this?

Mr S Holomisa (ANC) referred to page 17 of the submission and asked how a claim could be processed without knowledge of the victim, as it seemed to be suggested.

Mr Jeffery asked if they did not feel that child labour was covered in the definition of ‘forced labour’ in the Bill. Why did they want removed the provisions on the impregnation of a woman against her will for the purposes of selling the child, as they were quite specific?

Ms B Thompson (ANC) asked if the presenters were of the view that ukuthwala had nothing to do with gender inequality. The ISS should do research on ukukhomba which happened a lot in certain churches.

Mr L Landers (ANC) asked if the presenters thought that a scenario where a future marriage was arranged between a six and four year old constituted trafficking.

Ms Adhikari replied that ukuthwala should be dealt with in specific legislation as it normally occurred within a specific context in South Africa. The legislation should deal with trafficking; only Ukuthwala was not trafficking. There was always a danger for the identity of victims to be exposed and hence the suggestion for a separate compensation fund as opposed to an individual person. Trafficking legislation was not going to fix all the ills of society including arranged marriages. Someone specifically brought into the country for the purposes of an arranged marriage was a victim of trafficking. An arranged marriage, which did not have any other elements to it, was not a trafficking offence.

Ms Annette Houptsche from the Institute for Security Studies (ISS) said that the organisation had been conducting a lot of baseline studies on organised crime. The studies had shown that there was confusion between the smuggling and trafficking of persons, which were two different concepts. A regional study had revealed that it was mostly men who were trafficked for the purposes of forced labour. Cape Town had been identified to be the epicentre of human trafficking in the whole of South Africa.

World Aids Campaign (WAC) submission
Mr Tim Barnett, WAC Global Programme Manager, said that there was a dynamic that existed between sex work and trafficking. Trafficking could only be combated if reliable information was being provided to law enforcement authorities. The Trafficking Bill would be implemented unsuccessfully because sex work was criminalised in SA. This was an impossible disjoint. The Committee could recognise this fact in their report when passing the Bill. In 2003 the South African Law Reform Commission was given the task of investigating the decriminalisation of sex work, they had not produced a report yet. The Committee must make reference to the fact that the status of sex workers had to be sorted out. The relevant departments responsible for the implementation of the Bill when reporting on its progress should also report on the impact of the legal status of sex work in their ability to identify and resolve cases of trafficking.

Discussion
Mr Swart said that he differed from the suggestions made by the presenter. In the Sexual Offences Amendment Bill sex work was criminalised and punitive provisions against clients were inserted. The issue of the widespread abuse of sex workers had to be looked at but to put in a resolution to decriminalise sex work at this stage was too far reaching.

Dr Oriani-Ambrosini disagreed with Mr Swart. The criminalisation of sex work would compound the problem of trafficking. The Committee had to take this issue very seriously.

Ms Malgas asked what clarity was lacking in the objects of the Bill as had been asserted in the submission.

Mr Barnett replied that he respected the decision of the Committee when it had considered the Sexual Offences Amendment Bill but there was a tension between criminalising sex work and then condemning the abuse of sex workers. He was not suggesting that sex work should be decriminalised in this Bill. The suggestion was that the Committee might consider a Constitutional Court judgment in 2002 that held that the issue was up to the legislature to consider and that in 2003 the SALRC was given the task to investigate the matter. The lack of clarity in the definitions was the use of the terms ‘sexual grooming’ and ‘abuse’. These terms were not defined clearly enough in the Bill. The definition of ‘trafficking’ was not very clear either.

The Chairperson asked if it was correct that the SALRC had not produced a report on this matter in the last seven years.

Mr D Rudman, Deputy Director General of Legislative Development in the Department of Justice and Constitutional Development (DOJ & CD) replied that he would follow the matter up with the SALRC who had been busy on the issue, having held many workshops and consultations.

Lawyers for Human Rights & Consortium for Refugees and Migrants in South Africa submission
Mr Charlene McGardy, CORMSA Regional Director, said that the definition of ‘trafficking’ in the Bill had a ‘catch all’ approach to it. This created difficulties where a number of forms of conduct were subject to a criminal prohibition. This could potentially raise problems in the effective prosecution of offences. The definition would have to be narrow in order to provide for an effective prosecution. She noted that there was already a section in the Immigration Act that covered Clause 9. The Committee should also consider a provision where the liability of a carrier arose only if they were aware or ought reasonably to have been aware that the victims were not in possession of proper travel documents.

CORMSA recommended that when courts deliver sentences, they should consider any submission a victim may want to make. The provision of a certificate for victims was not clear if it would provide the holder with immigration status. The Committee should consider the legal implications of these certificates. If the certificate did not provide a legal status for the victim, then it could result in arbitrary arrest on the basis of their being considered as illegal immigrants. Victims of child trafficking faced uncertainty especially if they turned 18 during the court process having entered the country as minors. Such a child should be assisted for the purposes of receiving immigration status and protection from arrest and deportation. It was not clear how Clause 15 would work in practice as officials tended to discriminate against foreigners even if they had proper documentation. The certificate issued to victims of trafficking could be officially endorsed to avoid this. The same suggestion should be considered in Clause 18 where a similar problem could arise.

Discussion
The Chairperson asked if certificates took into consideration local residents as well - since the submissions seemed to look at it from a foreigner’s perspective only.

Mr Swart referred to the submission’s assertion that there had been only one trafficking case during the World Cup. He pointed out that this statistic applied only to the dedicated courts for the World Cup. There were some cases within normal jurisdictions. He agreed that there was a problem with law enforcement’s ability to detect trafficking. The point made on trafficked children reaching the age of majority whilst they were being assisted and thus not being able to have protection as minors, was a valid point.

Ms Michael said that trafficking happened within South Africa’s borders involving South Africans as well. LHR should look at this aspect of trafficking more closely. One of the biggest problems in the country was that there were not enough social workers thus some of the recommendations were not practical. Where would minor children stay whilst they were being assisted to gain a status in South Africa?

Mr McGardy replied that the Bill focused on international as well as trans-national trafficking of persons. It was accepted that trans-national trafficking did occur. LHR supported that the Bill addressed trans-national human trafficking. The key issue was really the ability of law enforcement authorities to detect trafficking. There had to be provision in the Bill for trafficked minor children to be protected even when they reached majority. This may be dealt with by way of regulations or directives.

Afternoon session

Molo Songololo submission
Mr Patrick Solomons, Molo Songololo Director, noted that the organisation had compiled two reports on human trafficking and sexual exploitation already. The organisation has more than ten year’s experience on the issue of trafficking in persons. Human trafficking was not easy to identify, investigate and prosecute. It was a complex matter that was also not easy to understand. Trafficking of persons happened within South Africa and across the border. Women and children were the main victims of trafficking. The present legal framework was inadequate to deal with trafficking. Trafficking occurred because there was a lot of money involved. It was not known how severe the extent of trafficking was. Children needed special measures to be protected and the Bill had to contain such provisions. The Bill had to address the sale of children, child prostitution and child pornography. The title of the Bill did not accurately capture its objectives and scope. The title of the Bill should be Prevention, Protection of Victims and Prosecution of Trafficking in Persons Bill. The definition of exploitation had to be expanded to include the selling of body parts and illegal adoption. The definition of forced labour did not adequately address the complexity of forced labour exploitation. The Palermo Protocol definition of trafficking included a special provision with regards to children. This should be adopted in the Bill. Public awareness was not adequately addressed in the Bill, it should be expanded. The title of Clause 3 on awareness should be Awareness, Education and other Protective Measures. The Clauses on prevention in the Bill had to be expanded. It had to be clearly stated as to whom was responsible for the certification of victims. There should be an appeal mechanism for victims who have been refused certification or the granting of a certain status. Children experienced trafficking very differently from adults and therefore the provisions on children had to be under one chapter.

Discussion
Ms H Malgas (ANC) asked how the organisation felt about the use of the term ‘child prostitution’ and “child pornography”.

Ms N Michael (DA) commended the organisation on its submission. Why would there be a need for a specific section on children in the Bill?

Mr S Swart (ACDP) asked if the organisation monitored activities around labour exploitation as well.

Mr S Holomisa (ANC) commented that the long title of the Bill probably addressed the organisation’s concerns about the shortfalls of the short title.

Mr Solomons replied that South Africa had a problem concerning child prostitution. Child prostitution was one part of sexual exploitation in general. Children were being sexually exploited in many different ways. Adult prostitution and the prostitution of children were very different. Their exploitation was different because of the vulnerability of children. The Bill had to address this particular kind of vulnerability. Child pornography should not be equated with adult pornography. A separate section on children would prioritise them as a particularly vulnerable group. It was difficult to gather proper statistics on labour exploitation. The submission proposed that there should be a special unit that dealt with investigations as human trafficking cases were complex and often drawn out.

Activist Networking Against The Exploitation of Children (ANEX) submission
Ms Julayga Alfred, ANEX Director, said that the organisation supported and welcomed the Bill. ANEX has adopted the Counter Human Trafficing Helpline to form part of the organisational counter trafficking strategy. It should be noted that the strong cross border preference within the Bill would have serious implications for the allocation of resources, intervention and data collection. It was recommended that all provisions that related to children should be kept separate. The definition of child trafficking should be included in the definitions section of the Bill. Further definitions that should be included in the Bill were In-country trafficking; Cross border trafficking; Gender and Sex amongst others. In Clause 2, the Objects of the Act should include “The national policy framework should contain guidelines on the directive to provinces in order to develop a Provincial Inter-sectoral Committee”. A minimum fine and sentence should be stipulated to guide the sentencing process. The inclusion of Clause 16(2) and (3) about victims of trafficking was welcomed. No mention was made to in-country trafficking in the Bill. This had to be changed as the occurrence of in-country trafficking should not be ignored. The Department of Labour should be obliged to collect statistics just like other departments. The Inter-sectoral Committee must be responsible for providing the framework for the establishment of Provincial Inter-sectoral Committees. Clause 9 failed to address the issue of internal carriers.

Discussion
Mr L Ndabandaba (ANC) asked why the presenter kept referring to the girl child and not the boy child.

Dr Oriani-Ambrosini (IFP) asked if a broader definition of labour exploitation should not be a key focus area.

Ms Michael commended the presenter for the submission and lamented that South Africa had signed and ratified the Palermo Protocol and yet it still did not have anti-trafficking legislation. How was labour broking similar to trafficking? 

Mr Swart asked for detailed information concerning the assertion by ANEX that there were cases of trafficking during the World Cup. The recommendation on minimum sentences was welcomed.

Ms B Thompson (ANC) asked for the presenters’ views on whether or not government had adequate border controls. What role could the new Ministry on Women Children and People with Disabilities play regarding human trafficking?

Ms Alfred replied that in-country trafficking had to be greatly emphasised. More girls were being trafficked than boys hence the references to girls. The definition of ‘exploitation’ should definitely be expanded. The department of labour was not adequately addressing labour exploitation. Many domestic workers were trafficked if one had to take a closer look at how they ended up in city suburbs. South Africa had to work on its border control.

Ms Matipa Mudanuka, ANEX Counter Trafficking Coordinator, added that the counter trafficking hotline that they manage had received 24 cases of trafficking that were properly identified during the World Cup. Fifteen of these cases were in-country trafficking. Most of the cases involved sexual exploitation.

World Hope South Africa submission
Ms Ajwang Waria, World Hope SA Anti-Trafficking Coordinator, said that her organisation always aspired to incorporate prevention, protection, prosecution and partnerships in all is anti-trafficking work. A specific definition of the trafficking of children had to be included in the Bill in the definitions section. A separate chapter on trafficking of children should be included in the Bill. Prevention as one of the interventions to address trafficking was vital. Prevention interventions ought to target areas of origin from where people were trafficked. Public awareness had to be greatly intensified. In Clause 3(1) awareness should include informing the public on the multi-faceted nature of trafficking. Clause 3(1)(b) should include inform and educate victims of trafficking on correct and safe migratory processes. It was recommended that Clause 11(f) should be amended to read, “whether the victim suffered abuse and the physical, cultural and psycho-social effects the abuse had on victims”. World Hope disagreed with Clause 13(1)(b) that reporting to the police can only be done with the consent of the adult victim. Trafficking was a hidden crime and few victims were outspoken about their experiences. Recorded statistics would remain low if reporting was dependent on the written consent of the victim. Clause 6 was welcomed as it dealt with the non-criminalisation of the victim. World Hope was in disagreement with the maximum 90 day period allowed for a foreign victim to stay in South Africa as stipulated in Clause 17(1). Clause 21(2)(b) should be amended to read “access to and provision of adequate health care and nutrition”. Clause 22(1)(a)(ii) should provide for the inclusion of an accredited organisation to also offer a programme aimed at holistic psycho-social care of the victim. It was strongly recommended that social service professionals involved in trafficking cases should be protected in case they were threatened by perpetrators. Clause 29 which prohibited summary deportation was welcomed.

Discussion
Mr Swart asked what the experiences of World Vision were at the South African and Swaziland border as they worked in Swaziland.

Ms Thompson asked what support was needed by a victim.

Ms Waria replied that the border between South African and Swaziland was very porous.

Due to time constraints, the meeting was adjourned.