Prevention and Combating of Trafficking in Persons Bill [B 7 – 2010]: Department's response to public submissions

Meeting report

Prevention and Combating of Trafficking in Persons Bill: Department’s response to submissions
Ms Louise Stuurman, South African Law Reform Commission (SALRC) said the short title of the Bill was the Prevention and Combating of Trafficking in Persons Bill. Submissions had stated the short title did not consider that the Bill was also about the protection of victims. Molo Songolo proposed that the short title should be: ‘Prevention, Protection of Victims and Prosecution of Trafficking in Persons Bill’. The Film and Publications Board had recommended that the short title should be: The Prevention and Combating of Trafficking of Persons and Protection of Victims Bill. The Department of Justice and Constitutional Development (DOJ&CD) did not have any objections with changing the short title of the Bill. The Department suggested two possible options: The Prevention, Protection of Victims and Combating of Trafficking in Persons Bill or The Trafficking in Persons Bill. There had been recommendations and arguments put forward in favour of due regard being given for the inclusion of a reference to the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography Supplementing the United Nations Convention on the Rights of the Child. The Department did not support this proposal or the recommendation that reference to these international instruments be made in the long title because they dealt with other issues and not only the trafficking of persons. Stating in the long title that the Bill gave effect to these instruments meant that the Bill should also address the other issues.

With regards to the Preamble, the Institute for Security Studies (ISS) said there was insufficient evidence upon which to base the statement that there was an increase in human trafficking. There was also insufficient evidence to suggest women and children were disproportionately victims of trafficking or that organised crime groups were involved in all cases of trafficking. The Department was of the view that the Preamble should be reworded. The Department’s response was that the words ‘increase of’ be removed. The Department however did not support the recommendation that ‘especially women and children’ and the role played by organised criminal networks should be deleted as the United Nations had already recognised that women and children were more vulnerable than men. The submissions from Robyn Fudge and Embrace Dignity were that the first paragraph of the Preamble should be amended in order to reflect the totality of factors contributing to trafficking. The recommendation was that the first paragraph should read: ‘Recognising the search for improved socio-economic circumstances and the demand for trafficked persons for all forms of exploitation, especially for sexual exploitation, are contributing factors making persons vulnerable to becoming victims of trafficking’. The Department had no objections except that it did not support the inclusion of the words ‘especially for sexual exploitation’ as this would place more emphasis on trafficking for sexual exploitation.

The submissions from Robyn Fudge, Embrace Dignity and the Southern African Catholic Bishops (SACBC) Conference requested that reference to the right to equality should be made in the Preamble. The Department supported the recommendation that reference be made to the right to equality in paragraph four of the Preamble. Embrace Dignity had requested that reference should be made to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The Department did not support this recommendation as the paragraph already made reference to other international instruments, which placed obligations on the Republic towards the combating and ultimately, the eradication of trafficking in persons. In the Definitions section, Molo Songolo proposed the definition of trafficking of children contained in the Palermo Protocol should be inserted: ‘… the trafficking of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set in the definition set forth…’ This meant that in order for one to prove that a particular case was one of trafficking, there would be no onus to prove that there was deception, force or abduction listed in the definition of trafficking in the Bill. An alternative would be the inclusion of a separate definition of trafficking in children. The Department did not support this recommendation as the concern expressed was addressed in clause 4(3)(a) of the Bill.

Robyn Fudge and Embrace Dignity submitted that in clause 1 the words ‘abuse of vulnerability’ should be replaced with the words ‘abuse of a position of vulnerability’ so as to bring it in line with the Palermo Protocol. The Department did not have any objections to this recommendation. The SACBC, Robyn Fudge and Embrace Dignity recommended that the words ‘physical’ or ‘psychological’ should be removed so that the Bill would only make reference to abuse. The Department did not support this recommendation as it felt that ‘physical’ or ‘psychological’ trauma were separate characteristics of the abuse that victims went through. Embrace Dignity recommended that paragraph (e) of the definition of ‘vulnerability’ in clause 1 should also make reference to ‘being a woman’. The Department did not support this, as the mere fact of being a woman did not render one vulnerable. The Commission for Gender Equality (CGE) recommended that the criterion by which a pledge was to be evaluated should also include any pledge, which would be contra bonos mores. The Department’s preliminary view was that the inclusion of this phrase could be problematic because what was against good morals differed from person to person. ISS submitted that the definition of ‘exploitation’ was too wide and recommended that it should be re-worded to: Exploitation shall include but not be limited to; slavery or practices similar to slavery; the exploitation of the prostitution of others; other forms of sexual exploitation; forced labour or services; servitude or the removal of organs.’ The Department was of the view that the definition did not take cognisance of South Africa’s domestic situation, for example trafficking in South Africa did not only take place for the purpose of organ removal but also for the purpose of removing other body parts.

Molo Songololo, Olive Foundation (OLF) and Films and Publications Board were of the view that there should be reference to the selling of body parts as well as organs in Clause 1 under ‘exploitation’; plus another paragraph should be added which would cover illegal adoption. The recommendation was already covered in the definition for the ‘removal of body parts’. It covered the selling and buying of body parts as well. The Department did not support the recommendation that ‘illegal adoption’ be included in the definition of exploitation as reference to ‘illegal adoption’ was already made in the first part of the definition of ‘trafficking’. Illegal adoption itself was not trafficking, the adoption had to be for the purposes of exploitation for it to fall under trafficking. CGE recommended that the deprivation of access to support services and basic rights should be considered as a form of exploitation. The Department was of the view that consideration could perhaps be given to the creation of a specific offence to address this concern. Molo Songololo, OLF and Films and Publications Board recommended that the definition of forced marriage as defined by the International Organisation for Migration (IOM) should be used with respect to children; the definition of the worst forms of child labour should be included. The IOM’s definition to which the submission referred was also the definition of forced labour as contained in the Convention concerning Forced Labour of 1930. The Department was of the view that the definition of forced labour in the Bill was more comprehensive.

The ISS was of the view that the definition of ‘forced marriage’ read with the definitions of ‘exploitation’ and ‘trafficking’ could criminalise ukuthwala as a form of trafficking. The Department’s views were on page 73 of the document. The Department was of the view that the practice of ukuthwala enjoyed constitutional protection where the prospective spouses had given consent and where both were of a marriageable age. However, anything that fell outside these parameters should not be seen as ukuthwala. The abuse of the practice in so far as it violated the rights of women and in particular the girl child should be dealt with in terms of the criminal law. If forced marriage was retained in the Bill then it should be as follows: ‘Forced marriage means a marriage concluded without the will or valid consent of either party’. The ISS recommended that the definition of ‘sexual exploitation’ meant the ‘participation by a person in sex work, sexual servitude or the production of pornographic materials as a result of being subjected to a threat, deception, coercion, abduction, force, abuse of authority, debt bondage or fraud.’ The Department was of the view that in order for prostitution to be a case of trafficking, it must fit within the definition of ‘trafficking’. One had to ascertain whether or not there was coercion, recruitment or deception. If an act fell within the definition of ‘trafficking’ then it could be considered as trafficking for the purposes of exploitation or prostitution. Embrace Dignity recommended that the definition of ‘sexual exploitation’ should be re-worded. The recommendation was that the definition should read as follows: ‘the inducement of such a person through the means of trafficking into the production of pornographic material or the performance of any other act of a sexual nature’. The Department did not support the use of the word ‘inducement’. The definition made it clear that the victim of trafficking must have been forced into participating in the production of pornographic material. It was not necessary to state that the production of the pornographic material must have been ‘through the means of trafficking’.

ISS and Lawyers for Human Rights (LHR) recommended that the definition of trafficking in persons shall mean the “recruitment, transportation, transfer, harbouring or receipt of persons, by any means, for forced labour or services, slavery or practices similar to slavery, servitude or the unlawful removal of organs.” The Department did not support the inclusion of the words ‘by any means’ as the Trafficking Protocol made it clear that one or more of the means listed in the definition must be present in order to regard an adult person as a victim of trafficking. The South African Human Rights Commission had concerns that the definition of traffickinghad a strong focus on sexual exploitation. The last part of the definition of trafficking should be deleted as it was the cause for the view that the definition focused too much on sexual exploitation. The SAHRC also felt that the definition of ‘trafficking’ did not make for good drafting. It was not advisable to have definitions that cross-referenced each other within the definitions sections. This was confusing and made the Bill difficult to access and understand. The International Association of Women Judges (IAWJ) recommended that ‘trafficking’ should be replaced with ‘trafficking in persons’. The Department preferred using the word ‘trafficking’ as the word was also used in the Bill with the words ‘victim of’.

The SAHRC recommended that ‘trafficking’ should be placed in the main body of the Bill and not in the definitions clause. The Department was of the view that if this were to be done it would be in Chapter 4 of the Bill as it dealt strictly with the crime of trafficking in persons. However the definition of trafficking was relevant to the whole Bill and it was therefore advisable to include the definition at the beginning of the Bill. The Department would reconsider this further. Activist Network against the Exploitation of Children (ANEX), Molo Songololo and the Film and Publications Board proposed that at the end of clause 2 the full name of the UN Protocol should be mentioned. This would also include Supplementing the UN Convention Against Transnational Organised Crime. The Department had already defined the UN Protocol in the Bill and the full name of the UN Protocol was already in the definitions section. Molo Songololo recommended that under clause 3(1) the following words should be inserted ‘…establish public awareness and educational programmes or other measures for the prevention, protection and suppression of trafficking in persons designed to…’ The Department had no objection to including the word ‘educational’ but not the word ‘protection’. The IAWJ recommended that in clause 3(1) the Intersectoral Committee should also have to consult with religious and community-based organisations. The Department supported the suggestion as follows: The Intersectoral Committee … must, … after consultation with relevant non-governmental organisations and civil society organisations establish public awareness programmes …’

The Department supported the recommendation from the Film and Publications Board that clause 3(1)(a) should include ‘inform and educate members of the public, especially women and children and other vulnerable groups or those at risk of becoming victims of trafficking…’. Molo Songololo recommended adding in clause 3(1)(a)-(iv): ‘organisations, institutions or law enforcement agencies and victim support services that may be approached for assistance or information’. The Department was not opposed to including victim support services but was of the view that the organisations to which victims would be referred would in any event provide victim support services. The SACBC expressed concern that the Intersectoral Committee was tasked with raising public awareness under clause 3(1)(c) yet it was not provided with guidance as to how it would go about this task. The Department had taken note of this concern and would revisit this clause. ANEX and Litha Labantu recommended that the Bill should make provision for minimum sentences. The Department would consider this further but it should be noted that minimum sentences did apply for the offence of trafficking in persons. The IAWJ recommended a new clause 7A under Chapter 3 which would make provision for the protection / exemption of witnesses, similar to the provisions of section 204 of the Criminal Procedure Act, No 51 of 77. The Department said it was unnecessary to include a similar provision to section 204 of the Criminal Procedure Act. The court in any event would be able to invoke the provisions of section 204 in a case of trafficking. ANEX submitted that clause 9 failed to address internal carriers (air, road and water). The Department’s response was that Clause 9 was not applicable to carriers, which transported persons within the Republic because a passport or visa was not required to move from one area to another within the Republic.

LHR was of the view that there were already provisions in the Immigration Act that were similar to clause 9. Clause 9 also required carriers to identify victims of trafficking. The recommendation was that clause 9 should therefore be deleted. The Department responded that clause 9 did not require carriers to identify victims of trafficking. However, if a carrier brought into or removed victims from the Republic without that victim having a passport or valid visa, that carrier could be held liable. The penalty for contravening section 35(7) of the Immigration Act was an administrative fine not exceeding R10 000. However, the penalty for contravening clause 9 was R1 million or imprisonment. Clause 9 was broader than what was currently contained in the Immigration Act. CGE recommended that the following should be added as a factors to be considered in sentencing: The relationship between victim and perpetrator; whether a compensation order would be made and the arising of any life threatening infections as a result of being trafficked. The Department had no objections to the first point and last point. The Department was not in agreement with the inclusion of whether a compensation order would be made. The court would not in all instances make a compensation order, for example where the victim had not yet been exploited. There were many submissions that were concerned with the written consent provision in clause 13(1)(b). This requirement was because there was a confidential relationship between a victim and the professionals and persons listed in clause 13(1)(a). If any professional were to divulge information of a victim of trafficking who was their client, they could face disciplinary action or legal consequences. An immigration official, labour inspector and police official did not need written consent of victims in order to report that they were being trafficked. There was no confidential relationship between a victim and an immigration official, labour inspector or police official. This written consent provision was not new in SA law as it was contained in the Domestic Violence Act.

There were further concerns in submissions about clause 13(7) which provided for the certification of victims. They asserted that the certification of victims served as an act of stigmatising and labelling them. The Department’s response was the requirement that the victim of trafficking should be issued with a certificate was not to label such a victim but to ensure that person had access to the necessary services. It should be born in mind that it was not easy to establish the status of victims of trafficking. It was important to have proof that a person had undergone an assessment and was deemed to be a victim of trafficking and thus had access to services.

Discussion
Mr J Jeffery (ANC) rejected the Department’s proposed title of The Trafficking in Persons Bill as it connoted that the government was promoting the trafficking of persons instead of combating it. The dispute about the inclusion of ‘protection of victims’ in the short title was going to be around the availability or resources. The tension with government was always whether or not there were resources available to provide for the rights of victims. He would like to reserve judgment on whether ‘protection of victims’ should be added in the title for the reasons given.

Ms Stuurman said that the Department would consider further formulations of the short title.

Mr Jeffery said that the whole Preamble was expressed as a fact. It was a fact that women and children were trafficked and it was also a known fact that organised crime was usually behind trafficking in persons. However there still had to be more concrete data to confirm these facts such as statistics and figures. Any of the civil society organisations present was welcome to submit information that indicated that human trafficking was on the rise.

Mr Deon Rudman, Deputy Director General: Legislative Development, said that Mr Jeffery would recall that the Department had tried on numerous occasions to solicit information but it was not easy to get it. There were some cases that the Department could report on but it would be difficult to get information that would provide a complete picture. The Department would once again try to obtain more statistics. Reference could be made to the UN Protocol in the Preamble. One could then add the statement on women and children as well as organised crime as extracts from the UN Protocol instead of facts.

The Chairperson agreed with the approach suggested by Mr Rudman and added that women and children were indeed the most vulnerable within the structure of society.

Mr Jeffery said that it would have been better if the Preamble made a reference to the vulnerability of women and children alone because at the moment there were no figures to indicate that trafficking was increasing.

Ms H Malgas (ANC) said she agreed that women and children were marginalised in society and empirical facts on this particular point could be obtained.

Ms D Schafer (DA) asked why the Department specified only the UN Protocol in the Preamble and not the other international instruments.

Ms Stuurman replied that the UN Protocol of Trafficking in Persons was one of the protocols that dealt with the issue of trafficking in persons more comprehensively. One of the objects of the Bill was to give effect to the UN protocol.

Ms Schafer asked what the difference would be if the words ‘physical’ or ‘psychological’ were removed in the definitions clause as they fell under the ambit of abuse anyway. If the Department specified ‘abuse’ then it would leave out other forms of abuse such as financial abuse.

Ms Stuurman replied that ‘physical’ or ‘psychological’ abuse was the kind that was mostly experienced by victims.

The Chairperson said that the Department had to consider this issue further.

Ms Malgas requested that the Committee should think about the recommendation from Embrace Dignity that ‘woman’ should be included in paragraph (e) clause 1 of the definitions. The reason was that the protocol in Africa made reference to women where the documents mentioned vulnerability.

The Chairperson asked if the definition of ‘removal of body parts’ covered a situation where a person was caught in possession of body parts.

Ms Stuurman replied that one had to make a clear distinction between trafficking in body parts and trafficking in persons for the purposes of removing body parts. The UN protocol did not cover instances where a person traded in body parts. The Bill did not cover possession of body parts unless such possession could be linked to a body and it could be proven that that body was trafficked. The Human Tissue Act dealt with the possession of body parts however the penalties therein were very lenient.

Mr Jeffery commented that he was unsure whether the definition of illegal adoption belonged under the definitions of exploitation or trafficking. Adoption was a legal process. The Department could look at adoption for the purposes of exploitation.

Ms Stuurman said that the Department would consider this.

Mr Jeffery asked what happened where parents in the rural areas sent their children to work in the city and the wages were given to the parents directly, was this covered under the definition of forced labour?

Ms Stuurman replied that consent would be the key issue where forced labour was concerned.

Mr Jeffery interrupted and said that the definition in the Bill did not mention consent.

Ms Stuurman replied that that was why the Department recommended the addition of the phrase ‘and for which the said person has not offered himself or herself voluntarily’ at the end of the definition.

Mr Jeffery said that ‘without valid consent’ was more plausible.

Ms Stuurman replied that the Department would consider this.

Mr Jeffery asked why sexual exploitation was placed within the definition of trafficking.

Ms Stuurman replied the reason was so that it could be aligned with the definition of trafficking in the Sexual Offences Amendment Act.

Mr Jeffery said that it was not necessary to have sexual exploitation in the definition of trafficking. There had to be a separate definition for sexual exploitation therefore trafficking and sexual exploitation could be kept apart.

The Chairperson instructed the Department to change this accordingly.

Mr Jefferey asked if it was advisable to specify an international treaty, which might be reviewed in three or five years time. Was it not better to have general provisions? For example, it could be said that the Bill was to give effect to international instruments relating to trafficking in persons to which South Africa was a signatory.

Ms Stuurman replied that the suggestion could be an option. The reason the UN Protocol was mentioned was because reference to it was also made in the Sexual Offences Act and the Children’s Act.

Mr Jeffery asked what the difference was between a non-governmental organisation and civil society in light of the amendment proposed by the Department in clause 3(1). This was in response to the proposal from the IAWJ.

Ms Stuurman replied that civil society organisations included religious and community based organisations. Referring to civil and non-governmental organisations was in order to try and have all organisations covered. However civil society did include non-governmental organisations.

Mr Jeffery said in view of the last statement, would it not be better to have only the phrase ‘civil society’.

Ms Stuurman said that the Department would consider the suggestion.

Ms D Ramodibe (ANC) asked if the Ministry on Women, Children and Persons with Disabilities was part of the Intersectoral Committee.

Ms Stuurman replied that it was not because the Bill was drafted prior to the establishment of the said Ministry. The Department would look into including it in the Intersectoral Committee.

Ms D Schafer said that there was a contradiction in the Department’s views. On the one hand it did not accept that just because a person was a women, therefore they were vulnerable. Yet the Department accepted the suggestion by the Film and Publications Board that women and children ‘especially’ had to be educated and properly informed.

Ms Stuurman replied that the Department would reconsider this issue and the submissions thereof.

Mr Jeffery commented that the title of Chapter 2 was inappropriate as the provisions only provided for public awareness and not preventing and combating trafficking, it had to be changed. There should be a separate chapter on the Intersectoral Committee where public awareness provisions could also be. Intersectoral committees were good in theory but in practice they were something else, the Committee had to guard against over-prescribing its functions.

Ms Stuurman said that the Department would look into this.

Mr Jeffery referred to the recommendations by the OLF and Film and Publications Board
about the punishment for Internet Service Providers (ISP), why had the Department not commented on this?

Ms Stuurman said that she assumed the Department supported the view of the OLF and Film and Publications Board.

Mr Jeffery said he hoped she was sure about that. Was it appropriate to talk of the imprisonment of an ISP, as they were normally juristic persons, for example MWEB? The fact that there was no comment on this implied that the Department did not pay as much attention to this recommendation as it should have.

Ms Schafer suggested that the Department should check the Companies Act, as her understanding of it was that company directors could be liable for the actions of their companies.

Mr Jeffery commented that the way the formulation of carrier was phrased at the moment, a carrier could be any transportation, this could lead to confusion.

Ms Stuurman said that the Department would work on the heading.

Mr Jeffery said that clause 9 was limited to where a person did not have a passport or where applicable a valid visa. If traffickers had done their paper work, persuaded individuals to come to South Africa to work and provided them with tourist visas, then there would be no liability on the carrier. If a carrier had known that there was trafficking or should have known that certain passengers were being trafficked, there was no liability. He proposed that there should be liability in such an instance.

Ms Stuurman said that the situation would be covered in respect of children.

Mr Jeffery said that he was referring to anyone, not children.

Ms Stuurman said that clause 12 placed an obligation on anyone to report a case where there was reason to believe that a person was a victim of trafficking. It was correct to say that clause 9 did not cover a situation where all of the paperwork was in order unless the carrier was also involved in the act of trafficking. The Department would look at this further.

Ms Schaefer said that CGE in clause 11 was not saying that a compensation order had to be issued. They were saying that this should be taken into consideration when sentencing was being done.

Ms Stuurman said that it was not in all circumstances that a court would issue a compensation order and it would normally be with good reason.

Mr Jeffery asked if this clause really necessary as it was a factor that the courts looked at anyway. For example clause 11(b) was unnecessary, as the court would look at previous convictions anyway. This was what courts normally did when sentencing.

Ms Stuurman replied that clause 11 was included in the Bill because the offence of trafficking was very new in South African law and guidance to the courts had to be provided.

Mr Jeffery suggested that clause 11 should go under the Regulations, as they were easier to amend. The concern was the Department might have left out an important consideration and then the legislature would have difficulty in changing the clause later on to accommodate an omission once it became an Act.

Ms Stuurman agreed.

Mr Jeffery said that he did not buy into the reasons for the Department’s rejection for the consent provision to be removed. One instance that was not covered in the Bill was where a victim could not give consent because they were foreign and did not speak any of the 11 official languages in the country. Victims of trafficking were vulnerable and obtaining consent from them would be difficult and unlikely.

Ms Schafer agreed with Mr Jeffery, doctors for example would not be in breach of confidentiality if they reported a reasonable suspicion to the police, as they would not be divulging any medical information of the victim.

Ms Stuurman, in response to Mr Jeffery’s comment, said that an immigration official, labour inspector or police official did not need written consent. The Department would consider the point made by Ms Schaefer. An exemption for certain professionals would be considered.

Mr Jeffery asked what sort of benefits did victims of trafficking receive.

Ms Stuurman referred Mr Jeffery to page 33, paragraph two of the document. The Department recommended that the certificate should clearly set out the rights of victims of trafficking and the services to which they would be entitled as provided for in the Bill. Clause 16 provided for the exemption of certain offences committed by victims of trafficking. Clause 17 allowed foreign victims of trafficking to be able to apply for a non-renewable recovery and reflection period permit. Foreign victims of trafficking in certain circumstances could apply for temporary citizenship. Clause 23 provided for victims of trafficking to have access to certain programmes by accredited organisations.

Ms Schaefer asked if there were any provisions in the Bill that provided for the repatriation of victims back to their home countries.

Ms Stuurman replied that the Children’s Act made provision for children who were victims to be re-united with their communities and families. In the case of adult victims, accredited organisations should provide programmes that incorporated re-integration.

Ms Malgas addressed the Justice Portfolio Committee on behalf of Ms B Thompson who was the Chairperson of the Portfolio Committee on Women, Children and Persons with Disabilities. She said the Committee on Women, Children and Persons with Disabilities was key to this legislation and yet where there were considerations or re-considerations from the Department it was on the basis of input from the Justice Portfolio Committee Members. The Portfolio Committee on Women, Children and Persons with Disabilities would consider the proposals that impacted on women and children and any input would be discussed between the Chairpersons of both Committees.

The Chairperson asked if the Committee on Women, Children and Persons with Disabilities was not happy with joint sittings.

Ms Malgas replied that it was not that the Committee was not happy but that there were certain things that had to be thoroughly considered by the Committee first.

Mr Jeffery said that there had to be a meeting where the relevant Departments would brief the Committee on their implementation capabilities.

The Chairperson said that the meeting had come to an end and adjourned proceedings.


Meeting adjourned.