Prevention and Combating of Trafficking in Persons Bill: Public Hearings Day 2

Meeting report

Prevention and Combating of Trafficking in Persons Bill: Public Hearings
Embrace Dignity Submission
Ms Nozizwe Madlala-Routledge, Leader and Founder, Embrace Dignity, told the Committee that her organisation supported the Prevention and Combating of Trafficking in Persons Bill (the Bill). It was commendable that the Bill took into consideration the Palermo Protocol. It was also commendable that debt bondage was considered as a human trafficking offence. The Palermo Protocol identified demand as one of the root causes of trafficking. It was suggested that the right to equality should be included in the Bill. It was also suggested that Clause 1(e) should include the words ‘being a woman’. The gender of a victim should be considered when sentencing was being carried out, particularly where the victim was a woman. The definition of “sexual exploitation” was confusing and would be difficult to implement and she stressed that the Bill should make it easier for perpetrators to be prosecuted. An alternative definition of “sexual exploitation” could be: “sexual exploitation means the commission of any sexual offence in terms of the Criminal Law, Sexual Offences and Related Matters Amendment Act or any offence of a sexual nature in any other law against a victim of trafficking”. A reference to traditional practices such as ukuthwala should be included in the Bill. Embrace Dignity was of the view that this practice undermined the dignity of women. It was a concern that the Bill barred medical officers and social services officials from reporting a human trafficking offence, unless there was written permission to do so from a victim.

She pointed out that victims of trafficking suffered immense harm, due to the involvement of organised criminal networks. Trafficking was difficult to detect and prosecute. The burden of proof should be placed on perpetrators and not victims. The spirit of the Criminal Law, Sexual Offences and Related Matters Amendment Act 32 of 2007 should be retained, so that it could be read together with the Prevention and Combating of Trafficking in Persons Bill.

Discussion
Mr S Swart (ACDP) asked if Embrace Dignity was happy with the definition of trafficking in the Sexual Offences Act, as it was slightly different from the definition in this Bill. 

Ms N Michael (DA) asked for an elaboration from Embrace Dignity on general indigenous law. She agreed on the expansion of the definition of sexual exploitation. Embrace Dignity should take note of the fact that many men were trafficked as well.

Mr S Holomisa (ANC) asked for an explanation as to why ukuthwala was associated with human trafficking by Embrace Dignity.

Mr Holomisa noted that in all other matters, the burden of proof in criminal matters lay with the State, and so he asked why she felt that there should be a departure from this where trafficking was involved.

Ms H Malgas (ANC) asked if Embrace Dignity had compiled any research on the subject matter.

Ms Madlala-Routledge replied that she agreed with Mr Swart in that certain aspects of the Sexual Offences Amendment Act would fall away because of the Bill. The definition of trafficking as contained was in the Bill was satisfactory, except that ukuthwala should be added to abduction. Cultural practices were acceptable, except when the undermined the rights in the Bill of Rights. There were many African women who did not complete their education because they were abducted and forced into a loveless marriage. This was against the Constitution. She called on African men to not use culture as an excuse to undermine the rights of women. Embrace Dignity was mindful of including male victims of trafficking. There was research that was in progress that would be completed soon.

Mr Holomisa said that African custom had been tainted and distorted by Western influences, and this must be borne in mind when interpreting African cultural practices. The Department of Justice and Constitutional Development (the Department) had excluded ukuthwala from the Bill, because if it was to be included, there would need to be a thorough understanding of the practice, and a definition of ukuthwala would have to be produced.

South African Human Rights Commission (SAHRC) Submission
Ms Pregs Govender, Commissioner, South African Human Rights Commission, submitted that the definition of “trafficking” should be removed from the definitions, and placed in the main body of the Bill. Judicial officers should be trained for the purposes of presiding in trafficking cases. Professionals and officials should be allowed to report trafficking without the written consent of victims. The South African Human Rights Commission (SAHRC) felt that the wording “certified to be a victim” stigmatised victims and recommended that Clause 23 needed to be re-worked. The SAHRC supported the view of Embrace Dignity on the traditional practice of ukuthwala. It should be noted that traditional leadership at the highest level had already condemned the distortion of the practice of ukuthwala. SAHRC welcomed the Bill, as it would make previously invisible occurrences of trafficking come to light.

Ms Judith Cohen, Head: Parliamentary Programme, SAHRC, added that the subject matter of the Bill had to be in the main body of the Bill. The Bill had gone through rigorous processes within the SAHRC. Minimum sentences were not supported by the SAHRC, who preferred guidelines. She recommended that Clause 13(1)(b) should fall away, as obtaining written consent from victims would be next to near impossible. A zero-tolerance approach was needed towards the abuse of vulnerable persons. Debt bondage had to be addressed in a separate piece of legislation.

Discussion
Mr Swart asked if the SAHRC had done any research over the years on trafficking, and also asked whether it had contributed to the Human Sciences Research Council (HSRC) report.

Ms B Thompson (ANC) asked if the SAHRC had found that the Children’s Act and Sexual Offences Amendment Act provisions had been duplicated in this Bill.

Ms P Duncan (DA) asked if the SAHRC thought that the government was doing enough to capture data on trafficking, and was engaging enough with Non-Governmental Organisations (NGO).

Ms Malgas asked for the views of SAHRC on the request in other submissions that children should be dealt with in a separate part of the Bill.

Dr M Oriani-Ambrosini (IFP) asked for more clarity on the issue of ukuthwala. The definition of exploitation did not cover those people who worked below minimum conditions.

Ms Cohen said that the Commission had not done any detailed research on trafficking in South Africa. The Children’s Act and Sexual Offences Amendment Act were stop gap measures, and it had been accepted that these two Acts did not comprehensively address every issue in South Africa. It had always been the thinking that certain provisions of those two pieces of legislation would fall by the wayside once a proper Bill that dealt with trafficking came into operation. Comprehensive legislation that dealt with debt bondage may well be needed. The legislation was vital for data collection.

Ms Govender said that there was an urgent need for socio-economic rights to be addressed by Parliament. She agreed that the lack of collection of data was problematic.

Ms Cohen added that the SAHRC’s presentation had mentioned “ukuthwala” in inverted commas because there were differing interpretations as to what ukuthwala was. However, whether or not any particular practices fell under ukuthwala would at the end of the day be immaterial since there was a clear definition of trafficking and anyone found guilty of practices that amounted to trafficking would be prosecuted.

Litha Labantu Submission
Ms Lesego Mukumi, Partner, Litha Labantu, said that this organisation supported the Bill. Litha Labantu recommended that there should be a register for offenders convicted of human trafficking. Clause 13(1)(a) and (b) must be read together with Clause 13(9). The Bill did not specify which State agency or department would be responsible for certification. There should be written reasons given where a certificate had been refused. There should also be an appeal mechanism for victims if they happened to be refused a certificate. The 90-day recovery and reflection period might not be enough for victims. It was recommended that this period should be increased to six months. The Bill did not have any provisions for a situation where a victim died within South Africa.

Discussion
Mr Swart referred to Page 2, paragraph 5 of the submission, where it was asserted that “the Bill in its current form did not address the issue of in-country trafficking”. He asked for further explanation on this point.

Ms Malgas asked for clarification on the register issue.

Mr J Jeffery (ANC) asked if the presenters had considered Clause 13(5), which might address the concerns about which agency would issue certificates. He wondered whether it would not be plausible to amend the Sexual Offences Register to include trafficking, as opposed to having yet another separate register.

Mr Holomisa asked what suggestions Litha Labantu had to cover the situation where a victim of human trafficking died in the country. The presentation had asserted that young girls were being trafficked from the urban areas to the rural areas as well, and he questioned whether this was supported by fact.

Ms Mukumi replied that the Bill was indeed detailed when it dealt with inter-country trafficking but was not as detailed in dealing with trafficking within the borders of South Africa. In the African cultural traditions, it was quite usual for children to be sent to live with relatives in the rural areas. These children often ended up being forced into hard labour by those relatives, or exploited in other ways. Although she conceded that the sending away of the children was done with consent, the situation changed once such a child was forced into unpaid labour. Trafficking was a very complex crime. The suggestion by Mr Jeffery was welcomed and she recommended that serious consideration should be given to it. On the issue of certification, she said that Clause 13(7) should be read together with Clause 5(b) and Clause 6. The Bill specifies how assessments should be made but it did not say if the assessor should issue the certificate. She said that the Bill was thus silent on how to address any abuses of the certification process, where there was no properly designated State department. The body of a victim of trafficking who died before reparation would simply be put in a State morgue.

Counter Trafficking Coalition (CTC) Submission
Mr Willie Matha, Representative, Counter Trafficking Coalition, said that the Counter Trafficking Coalition (CTC) believed that the Bill should contain a separate part dealing with children. He agreed with a previous submission that in-country trafficking was not adequately dealt with in the Bill. Trafficking had to be defined within a South African context, in order to include ukuthwala. Re-integration had to be taken very seriously and all measures related to it in the Bill had to be thought through very carefully. Punishment of perpetrators and participants in in-country trafficking had to be considered very seriously. Often, poor and illiterate parents were tricked by traffickers into believing that their children were being offered a job, and could fall foul of the law unwittingly. The CTC recommend that further definitions should be added to Chapter 1 in relation to transportation; recruitment; gender; sex; in-country trafficking; cross border trafficking; quality assurance; child trafficking; performance monitoring and evaluation and repatriation.

The CTC supported the provisions on public awareness in the Bill. It was recommended that additional words be added into Clause 13(1) (see attached presentation). CTC questioned why the Department of Labour was not obliged to collect data, similar to the other relevant stakeholder departments. There should be an inter-sectoral committee in every province. It was recommended that references to the Department for Women, Children and Persons with Disabilities should be added to Section 40(2) and Section 43(1) and (2)(a)(b).

Discussion
Mr Swart commented that the HSRC report spoke of gangs having families indebted to them in the Western Cape. The Committee had not addressed the issue of illegal miners being trafficked into the country.

Ms Thompson asked why ukuthwala was interpreted as human trafficking.

Dr Oriani-Ambrosini asked if CTC was possibly one of the organisations contemplated in Clause 20 of the Bill.

Mr Mathe replied that there had to be further dialogue with traditional leaders regarding the issue of ukuthwala. There were more comments than questions from the Committee and these were welcomed by CTC. CTC could possibly be one of the organisations contemplated in Clause 20.

The Chairperson commented that there was a presupposition that whenever ukuthwala took place, it was only the young woman who was not given any choice in the matter. In fact, the young man was also denied a choice. This was an issue that required further debate on the culture.

Ms Thompson responded to the Chairperson’s comment by saying that perhaps the word ukuthwala should be interpreted in English. Ukuthwala was not an ideal practice. She reminded the Chairperson that it was women, not men, who were subjected to this practice, which basically involved a woman being forcibly taken to a place that she had not chosen to be. She thought that there should also be a definition of ukukhomba, as one found that older men often picked young girls for marriage.

Film and Publications Board (FPB) Submission:
Mr Dumisani Rorwana, Manager: Legal Affairs, Film and Publications Board, said that there could possibly be a link between sexual exploitation and trafficking of persons. There was a very strong link relating to persons who were being brought into the country for the purpose of producing films that had explicit sexual content. There was a synergy in the definition of sexual exploitation in the Sexual Offences Amendment Act, and in this Bill. The Board (FPB) had not made any links by way of a detailed study between the distribution of sexually explicit films and human trafficking. However, it was concerned to combat the sexual exploitation of women and children for financial gain.

FPB recommended that the definition of “exploitation” ought to be expanded to include the removal and sale of body parts. The definition of “debt bondage” should be also expanded. There ought to be a specific mention of the commercial exploitation of children. The definition of “child trafficking” should be extended in order to protect children even more. Additional amendments to Clause 3 were proposed (see attached document). The public at large had to be protected through the awareness programmes. A reference to “Women and Children and other vulnerable groups”, should be added in Clause 3(1)(a). In Clause 3(1)(a)(iv) the FPB said that “victim support services” should be added. Clause 8 was welcomed by the FPB and it had to be synergised with the Internet Service Providers (ISP) provision in the Film and Publications Board Act. The FPB welcomed and supported the intent and purpose of the Bill, especially the provisions on the rehabilitation of victim.

Discussion
Ms Malgas referred to Clause (3)(1)(d), and asked if FPB thought that victims should also be granted shelter through housing, as the Department of Human Settlements played a crucial role in victim rehabilitation.

Mr Holomisa thought that there was an error in including the word “protection” in the suggested amendment for Clause 3(1).

Ms S Rwexana (COPE) commented that she suspected Mxit provided a new form of luring children for purposes of trafficking. This should be addressed.

Mr Swart agreed with Ms Rwexana. He asked for further input on the comment made by the FPB on Internet Service Providers.

Mr Rorwana replied that the FPB did not regulate broadcasters over the Internet, and such organisations had an option of using the FPB’s ratings as per the Film and Publications Board Act. This was a loophole in the law that the Committee might want to look at. There was no law that revoked the licenses of Internet Service Providers. The FPB had engaged with them to highlight that the distribution of films over the Internet was becoming a problem.

Ms Goodness Zulu, Manager: Child Protection Unit, Film and Publications Board, said that although she was not an expert in the field of Human Settlements, she did believe that it was the aim of the Bill to assist victims as far as possible in the rehabilitation process. The inclusion of the word “protection” was an attempt to emphasise the need for the victim to be protected.

STOP submission
Ms Corrine Sandbergh, Director, STOP, introduced her organisation to the Committee and said that that it received some funding from the government and private donors. STOP received and cared for victims of human trafficking. Once the legislation was passed, this organisation would put victims through extensive rehabilitation, health and reintegration programmes. It was recommended that international victims should stay longer in the country so that they could undergo a psychological restorative programme. However STOP would need more money to discharge such programmes and expand its services. STOP worked very closely with the Directorate for Priority Crime Investigations (Hawks) during the World Cup. STOP was also moving into the police stations to train officers and assist victims. It asked that the Bill should be fast tracked so that the country could be on par with other international jurisdictions.  Human trafficking was a serious crime, that was in essence nothing more than modern day slavery. South Africa's reputation as an easy traffic, transit and final destination country within the organised crime community had to be changed. In-country trafficking was a fast growing activity and the Bill had to address this, as well as trans-national trafficking. One of the main challenges facing STOP was a lack of funding.

Discussion
Ms Malgas asked if the victims assisted by STOP were mostly foreigners or locals.

The Chairperson asked for comment whether STOP thought the Bill in its current form ran the risk of criminalising activities that were not necessarily of a criminal nature, such as families sending their children to live with relatives, only for those children to end up being used as unpaid labour.

Dr Oriani-Ambrosini commented that the focus of the hearings was on trafficking, which was not legislated, for as opposed to sexual exploitation, which was already covered in the Sexual Offences Act. He asked how prostitutes who were victims of trafficking could be protected under this Bill when they were involved in a criminal activity.

Mr L Ndabandaba (ANC) asked if the Hawks were likely to find that the same syndicates were dealing in human trafficking.

Ms Sandbergh replied that the victims were drawn equally from the ranks of foreigners and locals. The National Prosecuting Authority (NPA) had said that any activity that fell within the definition of trafficking, as contained in the Bill, would be prosecuted. STOP supported this view. Most prostitutes were victims of debt bondage and trafficking as they had pimps or abusive boyfriends watching them all the time and virtually owning them. The appeal for the assistance of prostitutes was largely emotionally based. Trafficking, smuggling and prostitution went together so the perpetrators usually worked within interlinked organisations.

National Prosecuting Authority input
Ms Thoko Majokweni, Special Director of Public Prosecutions, National Prosecuting Authority, said that the entity had a broad strategy that focused on prevention, an effective response mechanism and support for victims. The National Prosecuting Authority (NPA) had compiled a study to understand the nature of trafficking. It had established task teams, as it wanted to work closely with relevant stakeholders. It had focused on capacity building and training of prosecutors. Public awareness campaigns had been held and a lot of performance and monitoring tools had been put in place. NPA believed, however, that the Bill had to be simplified to make it easier for practitioners and the general public. One common thread emerging from the submissions was that the Bill tended to focus more on trafficking in relation to sexual exploitation. NPA believed that the recovery period of victims should not depend on their cooperation. If only a little time was spent debriefing the victim, then no information would be obtained that would lead to the conviction of perpetrators. The Bill lacked a focus on the demand of trafficking. There had to be a focus on Internet Service Providers (ISP) as they allowed some of these atrocities to happen on their sites. The clause on certification had to be re-visited as it could lead to the potential branding of victims. The Committee had to consider how it could become more victim-friendly. Observing that the same individuals seemed to sit on various Intersectoral Committees (IC) for the implementation of various Acts, Ms Majokweni said that Parliament had to somehow find a way to have one IC that would be responsible for several Acts. There had to be guidelines on the issue of minimum sentences.

She commented that there could be merit in the request for a separate section on children as long if it would not make the reading of the Bill difficult. The establishment of a trafficking management system had to be seriously considered. The practice of ukuthwala had been widely abused and if it fell within the definition of trafficking then the law would take its course.

International Association of Women Judges (IAWJ) Submission:
Judge Dineo Mocumi, President: International Association of Women Judges, and Judge of the Free State High Court, submitted that human trafficking was modern day slavery. Trafficking should be specifically worded in the Bill to read as “Trafficking in Persons”, which was reflected currently in the title of the Bill. This was the term used in the Palermo Protocol. The IC should consult with religious and community-based organisations at grass roots level, who did not fall within the category of Non-Governmental Organisations (NGOs). The IC should also include the Department of Basic Education, as the most vulnerable targets of trafficking were children. There should be a clause in the Bill that allowed prosecutors to call upon accused to turn state witnesses in order to secure a conviction against the masterminds. This was also found in Section 204 of the Criminal Procedure Act. It would be ideal to target the major kingpins.

ISPs should be subject to everyday accumulative fines as they had to be hit deep in their pockets. The sentencing for carriers had to be as stiff as possible, and she suggested that 15 years would be appropriate. Clause 9 did not make sense, there always had to be a relation between a fine and term of imprisonment. The provisions in Chapter 4 were thought to be too prescriptive. It did not take into consideration the level of trauma that a victim suffered. The 24 hours stipulated therein could jeopardise the investigation. The words ‘as soon as reasonably possible’ would be more conducive.

She added that the provisions of Section 13(1)(b) placed an onus on a victim to give consent. This was too burdensome, and it was suggested that the consent of the victim be dispensed with entirely. The issue of resources and shelter for victims should be included under Chapter 6. The Committee should consider amending Clause 27 and 28 to provide for the freezing and forfeiture of the assets of a convicted trafficker, to prevent him/her dissipating or disposing of the assets and thus effectively denying the victim relief according to a court order. The IAWJ recommended that for the successful implementation of the Bill there should be proper coordination among various role players, proper costing of the Bill, intensive training of all role players, the establishment of resources, the engagement of experts and the development of guidelines for all role players.

Discussion
Dr Oriani-Ambrosini commented that he was not in agreement with minimum sentences.

Ms Malgas asked for comment on the issue of the provision of shelter for victims through the Department of Human Settlements.

Judge Mocumi replied that it was difficult to comment on the issue of minimum sentences. There were different views within the judiciary. The minimum sentencing legislation seemed not to have made much difference to crime levels, but was a reminder to judges to bear in mind that some crimes were serious and had to be dealt with accordingly. It had not provided a prerogative for the courts to not deviate from its provisions. She believed that this Bill should rather refer specifically to the minimum sentencing legislation as its current clauses on minimum sentences were clumsily worded. She was not well versed enough on the housing issues to be able to comment on the provision of shelter by the Department of Human Settlements.

The meeting was adjourned.