Prevention & Combating of Trafficking in Persons Bill: Department's response to submissions; Justice & Constitutional Developement Budgetary Review and Recommendations Report 2010

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Justice and Correctional Services

25 October 2010
Chairperson: Mr N Ramatlodi (ANC)
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Meeting Summary

The Committee discussed its draft Budgetary Review and Recommendation Report on the Department of Justice and Constitutional Development (the Department). Members highlighted that certain information had either been omitted or not captured properly in the Report. They also made recommendations as to what should be added to the Report. The recommendations included a request from the Committee on the progress of all disciplinary matters within the Department. The Committee felt that the Department should provide information on the tenders that were approved via the Department of Public Works as well as the inter-departmental plan that those two departments agreed upon. The Committee also requested clarity on the pronouncements by the Auditor General regarding the National Prosecuting Authority (NPA) from the previous financial year (2008/2009), and why these recommendations were not acted upon. In addition the Report should note that the recommendations of the Standing Committee on Public Accounts had not been adopted, and call for an explanation how this would be corrected. The request by the Public Protector for additional funding should be noted. Members said that there was a difficulty in respect of Chapter 9 institutions, since the Committee did not have independent information on their funding needs, and said this must be sought. They noted concern that funds were approved before the posts were created. The Committee formally adopted the Report, as amended.

The Department of Justice and Constitutional Development (the Department) continued to set out its responses to the public submissions on the Prevention and Combating of Trafficking in Persons Bill (the Bill). The Department was currently in discussion with the National Prosecuting Authority on Clause 14, and the certification of victims, and would provide some alternative formulations to the Committee. The Olive Leaf Foundation and Molo Songolo recommended that the wording of Clause 15 should be replaced, but the Department wished to retain the reference to “foreign victims of trafficking” to ensure that such people could not be denied
access to public health care services. Some of the concerns were already addressed in this Bill and other legislation. The Department was also consulting with the NPA on amendments suggested to Clause 16. The Department agreed that the time periods set out in Clause 17 were too short, but would need to consult with the Department of Social Development (DSD) on the cost implications, as also cost implications of possibly allowing victims who were engaged in civil compensation claims to remain in South Africa. There were concerns that there might not be sufficient resources on the ground. The Department agreed to replace the word ‘may’ with ‘must’ in Clause 20. Suggestions were made for programmes to be offered under Clause 22. A recommendation was made that under Clause 27 the State should provide legal representation for institution of civil claims. The Department did not agree with suggestions to allow preservation orders. Other suggestions related to waiving monetary jurisdiction limits.

Members said that the Director General of the Department of Home Affairs should be given a wider discretion, and that the test be based on humanitarian grounds. Members were also concerned that this legislation was potentially open to abuse, and care must be taken with the wording of Clause 14(2), as well as checking allegations of trafficking thoroughly, and commented also that greater services should not be offered to victims of trafficking than were available to South Africans, including victims of other crimes. They were not in favour of compensation to victims of trafficking. Members believed that there should not be a blanket ban on prosecutions. They cautioned that the time delays in civil claims must be taken into account, asked if the facilities would be dealt with in implementation plans, wondered if women with children were being trafficked, and said that some recommendations would depend on whether there was sufficient money available. Members noted that more information was needed on referrals from one court to another, and the wording on jurisdiction would have to be clarified. They asked what would happen to victims who could not be repatriated by accredited organisations, and warned that this Bill should not provide an easier way for refugees to gain permits. Members also asked if the current Inter Sectoral Committees, which faced problems in having decisions implemented, could not be combined and also extend to this Bill.

Meeting report

Draft Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Constitutional Development
The Chairperson tabled a new draft Budgetary Review and Recommendation Report (BRRR or the Report), and Ms Christine Silkstone, Content Advisor for the Committee, informed Members that the draft was different to the one circulated.

Ms D Schaefer (DA) referred to page 7 and commented that she was concerned that the average court-sitting time of 3.46 hours per day was reflected, under item 4.2.2, as an achievement. She was not of the opinion that this was an achievement.

Ms Silkstone replied that this was highlighted as an achievement by the Department of Justice and Constitutional Development (DOJ & CD or the Department).

Ms Schaefer suggested that in this instance the words ‘as reported by the Department’ should be added. She also questioned whether something that was still ‘in progress’ could correctly be named as an ‘achievement’.

Ms Silkstone replied that the Department had a time frame for this that fell outside of this year, which was the reason for the description that the matter was still ‘in progress’.

Ms Schaefer commented that she did not see any reference to the Chief Master (CM), despite the matter being previously raised by the Committee.

Mr J Jeffery (ANC) said that this issue could be inserted under the Committee’s recommendations and highlighted as a matter to be dealt with urgently.

Mr Jeffery noted that there should also be a request from the Committee that there must be a report on the progress of all disciplinary matters within the Department. The Committee only sought the nature of the charge and how long it took for the matter to be concluded.

Mr Jeffery pointed out an error in that the draft spoke of the Nelspruit and Polokwane High Courts, instead of the Mpumalanga and Polokwane High Courts.

Ms Schaefer commented that she had raised concerns about the tenders that had been awarded and later cancelled. She believed that reference to this should be included in the section under “Grievances” on page 18.

Mr Jeffery responded that his worry was whether or not the Committee had enough facts on this matter. He suggested that more appropriate wording should be used.

Ms Schaefer said that there were quite a few comments in the Annual Report of the DOJ & CD. She said that perhaps it would be preferable to say that the Department took steps to investigate problems in the tenders that had to be cancelled, which caused delays.

The Chairperson agreed that the rest of the Committee was happy with this formulation.

Mr M Gungubele (ANC) commented that the Committee should request the Department to provide information on the tenders that were approved via the Department of Public Works (DPW) as well as the inter-departmental plan that these two departments agreed upon. It should also be noted that the Committee requested clarification on the pronouncements by the Auditor General (AG) regarding the National Prosecuting Authority (NPA) reports for 2008/09, and why these pronouncements were not acted upon.

Ms Schaefer added that the AG had also observed that the Standing Committee on Public Accounts (SCOPA) recommendations in regard to the NPA had not been adopted. The Committee should specify that SCOPA recommendations were also not adhered to, and an explanation was sought as to how the NPA would correct this.

Mr L Landers (ANC) referred to Part 4 and said he recalled that the Public Protector (PP) also requested more funding for additional investigators, when it presented its Annual Report. This was not reflected in the document.

Mr Gungubele said that it was important for the Department to agree or disagree on funding for the Chapter 9 institutions, especially since it did not have independent information on which to base its decision. He strongly recommended that matters should be done differently, when making decisions, given the lack of independent information.

The Chairperson said that he was concerned about funds being approved without personnel posts already having been created. Posts had to be created and approved. The PP wanted to increase the salary of the Chief Financial Officer to the level of a Director-General (DG), but if this were to be done then there would be implications for the Chief Financial Officer positions across all Chapter 9 Institutions. In the previous week, the Committee had agreed to increase the salary of the Deputy Public Protector.

Mr Jeffery commented that he had the sense that the South African Human Rights Commission (SAHRC) was looking at cutting costs, whereas the PP was looking at expanding. It was clear that SAHRC had a lack of funds to perform their mandate.

Ms Schaefer recalled that the PP presented a very detailed submission on what this office had done to cut costs, and why it needed further funding, including, for example, the video conferencing facilities.

Mr Gungubele stressed that the Committee had to have external mechanisms for obtaining information as opposed to relying on the information provided by the Department, especially when it came to requests for more funding.

The Committee formally adopted the BRRR, with amendments.

Prevention and Combating of Trafficking in Persons Bill: Department’s response to submissions
Ms Louise Stuurman, Researcher, South African Law Reform Commission, continued to outline the responses of the Department and South African Law Reform Commission (SALRC) to the public submissions made on Prevention and Combating of Trafficking in Persons Bill (the Bill).

Clause 14
Ms Stuurman outlined that the Department was
currently in discussion with the NPA regarding the certification of victims. The Committee would be provided with possible alternatives as to how and when victims were certified when deliberations began.

The Southern African Catholic Bishops Conference (SACBC) had been concerned that foreign victims who did not co-operate with law enforcement and prosecuting authorities were subject to repatriation. The suggestion was made that provision should be made for victims to apply for asylum or refugee status, once their recovery and reflection period had ended. The Department responded that t
he Bill provided that victims may not be returned to their countries even if they refused to cooperate with the authorities. Clause 18(4) also provided that a visitor’s permit could be extended, on humanitarian grounds, if the victim was likely to be harmed, killed or trafficked again if returned to their country of origin.

Molo Songolo suggested that, in Clause 14(2), the
word illegalshould be replaced with the phrase ‘a foreign child in need of care and protection’. The Legal Resources Centre (LRC) recommended that Section 3 of the Refugees Act should be amended to include trafficking as a ground for claiming refugee status. Lawyers for Human Rights (LHR) recommended that the certificate received by victims should be sufficient proof for State hospitals to provide medical treatment to victims of trafficking, on the same basis as South African citizens. 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. Several clauses in the Bill afforded certain rights to a victim who had been issued with a certificate.

Clause 15
The Olive Leaf Foundation and Molo Songolo recommended that Clause 15 should be replaced with the following: ‘All victims of trafficking are entitled to the same public health care including the services to which citizens of the Republic have access.’
The Department was of the view that the reference to a foreigner who was a victim of trafficking should be retained, as this made it clear that a foreign victim of trafficking should not be denied access to public health care services.

She added that due consideration would be given to the recommendations made, but it should be noted that some of these concerns were already addressed in this Bill and other legislation.

Clause 16
The
Legal Resources Centre recommended that Clause 16 should be amended to read: ‘No criminal prosecution may be instituted against a child who is found to be a victim of trafficking after an investigation in terms of Section 110(5)(c) of the Children’s Act, or against an adult person while the investigation and assessment for the issuing of a certificate is pending in terms of Section 13(7)(a)’. The Department was still in consultation with the NPA on this recommendation.

Clause 17
There were a number of submissions that suggested that the 90-day period currently provided for in Clause 17 was not sufficient, especially where victims had suffered severe psychological trauma. The 30-day period in Clause 17(2) was also deemed to not be sufficient. The Department recommended that the 90-day period should be extended to six months, that the 30-day period should be extended to 90 days, and that the six-month period in Clause 17(4) should be extended to nine months. The Department would have to consult with the Department of Social Development (DSD), as there would be cost implications.

Clause 18
Activists Networking Against the Exploitation of Children (ANEX) recommended that in Clause 18 victims of human trafficking who were engaged in a civil matter for compensation should be allocated the
status to remain in the Republic. The Department was not opposed to this recommendation, but its cost implications would have to be considered.

Chapter 6
The
International Association of Women Judges (IAWJ) was concerned that Chapter 6 had not addressed the issue of resources, such as shelters and other accommodation for victims of trafficking. The Department responded that for adult victims of trafficking, Clause 21 provided that accredited organisations must adhere to certain minimum norms and standards. These, amongst other issues, must deal with the provision of separate facilities for male and female victims of trafficking. Clause 22 further provided that an accredited organisation must offer a programme aimed at the provision of accommodation to adult victims of trafficking. The Children’s Act provided that alternative care should be provided for child victims of trafficking.

Clause 20
ANEX recommended that in Clause 20(2)(b), the word ‘may’ must be replaced with ‘must’. The Department agreed with the recommendation.

Clause 22
World Hope South Africa made recommendations under Clauses 22(1)(a)(ii), 22(1)(a)(iii) and 22(1)(b) This organisation recommended that an accredited organisation must also offer a programme aimed at a holistic psycho-social care to the victim. Programmes should be offered that were aimed at both pre and post-integration activities and there should also be recreational facilities. Furthermore, an accredited organisation must offer legal support to the victim.

Clause 27
The IAWJ recommended that legal representation, at the expense of the State, should be provided for victims of trafficking to institute civil claims. Consideration should be given to amending Clauses 27 and 28 to provide for the freezing and forfeiture of the assets of traffickers. A Preservation Order, similar to that provided for in the Prevention of Organised Crime Act 121 of 1998, would address the issue.
Furthermore, it recommended that for Clause 27(2), in cases where the amount of the damage, injury or loss exceeded an order for compensation, a civil action could be instituted by the victim for the recovery of the excess. The Department did not support the inclusion of provisions similar to those in the Prevention of Organised Crime Act, as the provisions of this Act could in any event be used to confiscate property or proceeds derived from the trafficking of a person.

The Commission on Gender Equality (CGE) also commented on Clause 27. It had expressed concern that monetary jurisdiction of district and regional courts could delay compensation, or could even prejudice a victim where compensation had to be awarded, because compensation was usually determined at the end of a trial. The recommendation was that in cases involving human trafficking, monetary jurisdiction should be waived. Alternatively, district courts should not be allowed to preside over such matters. CGE suggested that the following could be added: ‘Nothing in this Act precludes a magistrate’s court for any regional division from making an order which exceeds the criminal jurisdiction of that court, in which case the order must be submitted in the prescribed manner to a judge of the High Court having jurisdiction, for confirmation’.  The Department would discuss and clear this with the State Law Advisers.

Discussion
Mr Jeffery suggested that the Director General of the Department of Home Affairs should be given a wider discretion in respect of Clause 18(4), and not be limited to cases where a person was at risk of being harmed, killed or trafficked.

Mr S Swart (ACDP) added that the test in Clause 18(4) included a decision based on humanitarian grounds. The test should just be limited to humanitarian grounds, and should not include the narrower requirements of harmed or killed.

Ms Stuurman replied that Clause 18 applied to adult victims of trafficking. Child victims of trafficking would be covered by a court order that would serve as authorisation for the foreign child victim to remain in the country. If the Committee wanted Clause 18 to apply to child victims as well, then it would have to make this very clear.

Mr Jeffery commented that the recommendation by Molo Songolo in respect of Clause 14(2) was worrying. There could be foreign children in need of care who had not been trafficked, but who might now fall under the ambit of this Bill, which was supposed to address trafficking issues only. He suggested that this Committee would have to consult with the Portfolio Committee on Home Affairs on the suggested amendment from the Legal Resources Centre, around Section 3 of the Refugees Act. It was possible that South Africans could be trafficked to another country. In that case, he questioned if they should then be regarded as refugees in that country. The implication of this recommendation was that if a person was trafficked he or she would qualify for a refugee status. He thought this was too wide.

Mr Swart asked if the Department had consulted with the Department of Home Affairs on this issue. 

Ms Stuurman replied that it had not.

Mr Swart commented that victims of trafficking would be entitled to certain rights as foreigners under the Constitution. Even illegal immigrants were entitled to health care under the Constitution. He was pleased that the Department was consulting with the NPA on the proposed amendment of Clause 16. There should not be a blanket ban against prosecutions, as the NPA should be allowed to prosecute where it felt there was a case.

Mr Jeffery said that he was unsure why the Department had included all the time limits under Clause, because the power to allow a person to remain in the Republic was with a senior official. It would be preferable if discretion whether to allow a person to remain in the Republic was conferred on the Director General of the Department of Home Affairs.

Ms Stuurman replied that the 90-day period was set out because, during this time, the victim would not be required to cooperate with law enforcement or prosecuting authorities. If the victim did cooperate, he or she would be given a temporary residence permit for the duration of the criminal proceedings.

Mr Swart commented that it was well known that civil matters were often subject to delays. The Committee had to keep this in mind when it considered implementation and cost implications.

Ms Schaefer commented that the concerns by the IAWJ were not that the Bill did not make provision for shelter and accommodation for victims, but that the government was not providing enough facilities on the ground. She asked if the issue of facilities would be dealt with in the implementation plan. She also asked if there were cases where women with children were being trafficked.

Mr Swart asked what would happen if a person came to South Africa voluntarily, and then alleged that he or she was trafficked whilst in South Africa. He wondered what mechanisms there were to ascertain whether a person was indeed trafficked.

Ms Stuurman replied that DSD had already begun the process of looking at providing adequate facilities for victims of trafficking. She noted that the Department had grappled, during the consultation process, with questions around trafficking of a person who had a child. She stressed that the opportunity to take advantage of legislation must be avoided. If a person alleged that he or she was a victim of trafficking, there had to be a thorough investigation of the claims. In the instance where a child had alleged trafficking, then the child would be taken to a designated child protection organisation or the provincial Department of Social Development, where the case would be investigated.

Mr Jeffery said that the recommendation by ANEX in respect of Clause 20(2)(b) would depend largely on whether there was enough money for accredited organisations. If the word ‘must’ was included, then it would imply that money was available. If ‘may’ was used, then it would mean that there was a power given to the Minister of Social Development. It was surprising that the Department agreed so readily to the change.

Ms Stuurman replied that the formulation of the clause took into consideration the circumstances, rather than whether or not there was money. There was no difference between ‘may’ or ‘must’ in this instance.

Mr Jeffery commented that care must be taken to ensure that this Bill did not result in better services being given to trafficked victims than to ordinary South Africans. The Department had supported a number of recommendations from World Hope South Africa, but stated that it would consult with the relevant departments. He asked whether the Committee could get an indication of what services were available currently to South Africans.

Mr Swart said that victims of rape were entitled to certain services, but agreed that it was undesirable to create a higher level of services than those accorded to the average South African victim of crime.

Ms Stuurman replied that there was already a child-care system in place for child victims of trafficking. Adult victims of trafficking lacked sufficient placement facilities at the moment. The facilities currently available were not adequately equipped to support and care for victims. DSD had already acquired 13 facilities for adult victims.

Mr Jeffery said that this response did not address his query. His query related to the recommendations under Clause 22, from World Hope South Africa. Because of funding limitations, large numbers of South Africans did not have access to the type of services that were listed in the recommendations for Clause 22. It was easy for Non Governmental Organisations (NGOs) to say what was desirable, but the government had to look at what was practically possible.

Ms Stuurman replied that she accepted the point being made. However, the Department had taken the view that it instead of dismissing the recommendations it would consult with the relevant departments to find out how practical the recommendations were.

Mr Swart referred to the submission by the IAWJ. He noted that a compensation order under the Magistrate Courts Act had certain limitations. The Bill was extending this limit to cover these types of crimes. He thought that more information was needed on this.

Mr Jeffery said that he was not sure about the recommendation from CGE concerning Clause 27. A Magistrate’s Court could just refer the matter to the High Court.

Ms Stuurman replied that the offences contained in the Bill would result in cases being heard in the Regional Court from the onset, as opposed to the ordinary Magistrate’s Court.

Ms Schaefer said that the Department would have to distinguish, in its response, whether the jurisdiction related to civil matters where a compensation order was sought, or to criminal matters where the State was prosecuting offenders. She noted that the jurisdictional amount for Regional Court civil claims had increased.

Ms Stuurman said that this was one of the provisions that required consultation between the Department and NPA, who would reconsider the proposed recommendations.

Mr Swart cautioned against allowing compensation orders to be granted for victims of trafficking. This would open the door to complaints from a range of other victims, such as those of rape, asking why they too were not entitled to compensation orders.

Ms Stuurman replied that the issue of whether compensation should be dealt with at all in the Bill should be re-considered.

Mr Jeffery asked what happened where a victim could not be repatriated by an accredited organisation, for whatever reason.

Ms Stuurman replied that a victim could not remain with an accredited organisation indefinitely. There was however no specific provision in the Bill that actually stated what should happen in this instance.

Mr Swart added that it would be in the interests of an accredited organisation to keep victims as they would receive aid. The Committee had to ensure that there were enough checks and balances in the Bill to guard against its abuse.

Ms Stuurman agreed with Mr Swart.

Mr Jeffery was concerned that refugees would use the Bill to gain permits, as opposed to applying for refugee status in the normal way, which had more stringent requirements
 
The Chairperson believed that it was too easy to obtain citizenship in South Africa, and government had to reconsider this matter.

Mr Jeffery commented that there were Inter Sector Committees (ISC), under both the Child Justice Act and under the Sexual Offences Act. However, the ISCs battled to function. There was tension between the hands-on officials who were dealing with the subject matter, but who did not have sufficient authority to get things done. Directors General had the necessary authority, but not the time to deal with matters. He wondered if consideration might have been given to having one ISC to deal with all three pieces of legislation, including this Bill, which could then form itself into sub-committees to oversee the legislation.

Mr Lawrence Basset, State Law Advisor, replied that the Director General for the DOJ & CD had raised this issue, and all possibilities were being considered.

The Chairperson advised Members that on the following day the costing of the Bill would be discussed.

The meeting was adjourned.

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