Prevention & Combating of Trafficking in Persons Bill: Implementation Plan & Costing; Repeal of Black Administration Act Amd Bill

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Justice and Correctional Services

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

The Director of Victim Support and Specialised Services: Department of Justice and Constitutional Development gave a State of Readiness Report about the departments that would play a role in implementing the Prevention and Combating of Trafficking in Persons Bill. An interdepartmental and coordinating task team had been set up; this was called the Operational Committee. The Office of the Chief Financial Officer from the Department of Justice spoke on the costing of the Bill for the start-up period as well as the Medium Term Expenditure Framework period.

The Committee said that there was not any analysis that said the departments were ready or not. The Committee was critical about the lack of statistics. They pointed to the importance of statistics as a key basis for the costing and implementation of the legislation. Some underplayed numbers while others seemed to exaggerate the numbers of those affected by trafficking. The Committee questioned the fact that in the Bill South Africa would be paying for both the repatriation of foreigners and for locals who happened to be trafficked to international destinations. The Committee was also worried that the Bill might be used by economic migrants and asylum seekers who would claim to be trafficked without basis, the Committee questioned what mechanisms would be available to keep this in check. The Committee rejected the presentation and instructed the departments to return with more statistics. Civil society would also be invited to an open session where they could also provide statistics.

The Committee approved the introduction of  the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B37-2010]. This Bill extended the date of application of section 1(3) of the Repeal of the Black Administration Act and Amendment of Certain Laws Act, No 28 of 2005, to 30 December 2012.  The extension was for the purposes of obtaining greater public input and consensus on contentious issues contained in the Traditional Courts Bill [B15-2008] and allowing traditional courts to continue functioning legally.

Meeting report

Presentation: The State of Readiness Report by the Role Player Departments
Ms Kamogelo Lekubu-Wilderson, Director: Victim Support and Specialised Services for the Department of Justice and Constitutional Development (DOJ&CD) explained that the DOJ&CD had already began the preparations with the other stakeholder departments for the Prevention and Combating of Trafficking in Persons Bill. DOJ&CD had worked very closely with the Department of Social Development (DSD). There were other departments, which had not come on board, but the DOJ&CD was pursuing them through formal means. An interdepartmental and coordinating task team called the Operational Committee (OC), had been set up. This committee would serve to support the Inter Sectoral Committee (ISC). In 2009 the departments began a collaborative task of costing the Bill. Some departments were of the view that they could not deliver on the Regulations before the legislation came into effect; others had already started on the Regulations. The DOJ&CD would be responsible for ensuring that the Directives submitted by the National Prosecuting Authority (NPA) would be drafted and submitted on time. DOJ&CD was also leading in the drafting of the costing report and had consulted all the relevant stakeholder departments. The inter-departmental plan was part of the mandate of the Minister of Justice. The chair of the ISC would be the Director General (DG) of the DOJ&CD. The NPA was responsible for some key provisions in the Bill. The DOJ&CD was responsible for ensuring that child victims of human trafficking were relocated through internal systems.

DSD was responsible for liaising with the Department of Home Affairs for the repatriation of victims of human trafficking. They were already carrying out this function. DSD would also be responsible for providing the report of accredited organisations that provided services to victims. The provinces were responsible for overseeing the accredited organisations. National Departments would be responsible for setting out the norms and standards as well as ensuring that the provincial departments were able to adhere to the norms and standards. The NPA and South African Police Service (SAPS) would have to be informed whenever DSD removed an accredited organisation from the approved list. DSD would also be responsible for providing reports as per the Bill and this would be included in their Instructions. It was important for stakeholder departments to include all the important requirements of the legislation in the Instructions so as to ensure compliance. One would not want a repeat of the Sexual Offences Act. DSD was also responsible for providing escorts for victims. A number of training courses had been developed for the accredited organisations so as to ensure that certain standards were upheld. DSD would be responsible for this in addition to being responsible for instituting cases for child victims. The institution of cases would be included in the Regulations. Child victims of trafficking would be removed and placed in an appropriate shelter by DSD. Social workers were responsible for assessments and referrals of child victims and receiving adult victims. DSD was already doing this. The safety of victims was a concern and was already a challenge for DSD. The matter was currently under discussion.

The current number of accredited organisations was 13. Accredited organisations were responsible for the safety of victims. It was important that the accredited organisations would have the infrastructure and personnel that would be able to conduct assessments of victims. The screening and assessment of victims was tricky and required skill. The accredited organisations would also be responsible for repatriation. R4 million was projected as the initial required amount for the accredited organisations. DSD would also be responsible for advising the DG of Home Affairs on the reception of citizens or permanent residents who were victims of trafficking. The Department of International Relations and Cooperative Affairs (DIRCO) was responsible for the protection of South African victims who were in foreign countries. DIRCO had indicated that their systems were in place but they may need some funds but not a lot for repatriation purposes. The Department of Labour was currently working on issues of the trafficking of children for purposes of labour. The Department was already in the process of drafting their Regulations. Training material would be developed for labour inspectors to enable them to deal with trafficking and 100 inspectors had already been trained. This was critical because once one was able to identify the criteria that were present for purposes of trafficking, then there would be no delays once the Bill came into operation. SAPS would be responsible for the training of staff dealing with trafficking. SAPS officers would also be responsible for referrals to designated accreditation organisations within 24 hours. This function also fell under Chapter 18 of the Children’s Act.

The Bill required that the departments had to work together at an intersectoral level however it was not always possible to meet at the same time. As indicated previously, it was important to streamline all the departmental activities. It was important for all departments to align all their meeting dates so that the ISC could also align its work accordingly. The ISC had to be identified as to where it fitted in with the NPA’s national and provincial human trafficking task teams. There might also be a need for an intersectoral training manual. There was a need to not just work at an operational level but also the Directors General and Ministers of the stakeholder departments had to be sensitised on what their specific roles would be. The DOJ&CD would draft letters to all the Directors General of the stakeholder departments advising on the importance of the state of readiness reports.

Mr Winston Tong from the Office of the Chief Financial Officer (CFO) of DOJ&CD continued with the second half of the presentation and described the procedure followed to arrive at the figures. The departments that would be affected by the Bill were costed. An incremental cost approach was adopted which stated that if the Bill required something new then that would be costed. Any other operations that were required in the normal course of business would not be costed, as the Bill already required them. The departments were DOJ&CD; DSD; NPA; SAPS; Home Affairs; the Department of Labour, DIRCO, Education, Health, State Security and Government Communications. In terms of personnel, the DOJ&CD would need two Deputy Directors and secretariat support. DSD would need a Deputy Director and an assistant Director. DOJ&CD would focus on classroom training; this would be mainly from the side of the judiciary. The NPA would require 3000 prosecutors to be trained, DSD would need 14 000 staff members to be trained, Home Affairs would need 728. A database for human trafficking had also been developed. Home Affairs would need their Information Technology system to be upgraded in order for certificates to be issued for victims of trafficking. Immigration Officers also had to be trained. DIRCO’s reporting system would have to be upgraded so that human trafficking could be reported. The Departments of Health, Education, Home Affairs and Labour had been identified for the purposes of raising public awareness.

A Chief Directorate who would be responsible for the rights of vulnerable groups would support the ISC. The costs in the presentation were a consolidation of the start-up period as well as the Medium Term Expenditure Framework (MTEF) period. Legislative gazetting at a cost of R488 000 had been budgeted for the DOJ&CD, training activities were R1.1 million, training coordination was R1.5 million, the personnel cost was R3 million. The operational infrastructure requirements were R249 000. The public awareness campaign would be over four months at a cost of R17.1 million. Training capacitation and coordination totaled R4.6 million. The NPA costing was R9.3 million. This included training, legislative gazetting and capacitation. SAPS would require the training of 14 000 officers.

The Chairperson said that the presentation did not indicate when the departments would be ready for the implementation of the legislation.

Mr J Jeffery (ANC) said that he was worried that there was no costing in terms of what would go into the Bill and what would not. Some of the costing was difficult to follow. The human capital costing for the DOJ&CD was R3.8 million and yet only three people would be employed; it got more confusing with DSD because they were only going to employ two people and yet the cost was nearly R3 million. It did not specify how much the programmes would cost. There had been a lot of requests for additional services from civil society, none of them were mentioned, and this might have assisted the Committee in its deliberations. He was not sure if DSD has been honest, there was no request for an increase in social workers so that implied that the existing social workers would be able to handle the extra workload. Were the social workers coping with the Child Justice Act in terms of the implementation? What was the procedure in terms of international treaties for the purposes of repatriation, it seemed like South Africa was paying for everything, in other words we would be paying for the expatriation of foreign and local victims. Why should South Africa be responsible for the citizens of other countries found in this country; why could the governments of those countries not be responsible for their own citizens?

There was a need for proper statistics so as to ascertain the extent of trafficking in South Africa. There had to be a briefing session where government departments and non-governmental organisations (NGOs) could provide statistics to the Committee. We need to be careful about allocating resources because if the problem was not so acute, then was there a need to allocate such vast amounts? Was it also necessary to train judges, prosecutors and magistrates?

Mr G Ndabandaba (ANC) said that the Department of Correctional Services (DCS) was not on the list of stakeholder department; surely they had something to add, as they would deal with perpetrators. He accepted that the emphasis was on victims but he felt that the Bill would indirectly affect DCS.

Mr S Swart (ACDP) said that Mr Jeffery always commented that the problem was minimal and questioned the extent of resource allocation. The point was that the Palermo Protocol required the legislation; South Africa had no choice in the matter. He agreed that there was limited data but there was evidence of 30 000 children in South Africa trafficked for purposes of labour on farms. One had to be very careful about making general allegations and he agreed that one did need those stats and figures from civil society and the departments. With regards to the World Cup, the NPA had stated that the designated courts had not dealt with any cases. There were a number of cases that came up during the tournament that were being investigated. The South African Human Rights Commission (SAHRC) had had an extensive investigation on anecdotal evidence that suggested that there was an urgent need for action on all fronts. The problem was that data was not being kept, therefore he might be exaggerating the problem or Mr Jeffery might be under exaggerating it. There was a lot of concern about the level of trafficking throughout the world and South Africa was a transit destination. The presentation indicated that there was no budget allocated untill the end of March 2011, was the DOJ&CD expecting more funding from Treasury given the fact that there was an expected 10% increase in trafficking. Was the inflation rate used in calculating what was needed for the Bill? Had other departments been consulted on the DOJ &CD’s costing structure?

Mr Jeffery replied that he was not saying that actual figures were low, he was saying that the figures provided so far were low.

Ms D Schaefer (DA) agreed with the two previous speakers that there was a need for data. The first part of the presentation did not inspire confidence that the stakeholder departments were ready for the implementation of the legislation. If there were only 13 accommodation facilities, what was going to happen to victims, would they be transported from province to province or city to city? If people were being trafficked across borders, why were there no shelters close to the borders? Had they calculated how many people could be trained from SAPS? The dedicated human trafficking desk, as far as she knew, had only one person behind a desk. How effective was this going to be in coordinating all the relevant role players across the country?

Mr M Nhanha (ANC) requested that the department should look into consulting with the House of Traditional leaders as the Bill might affect them.

The Chairperson commented that it was convenient for officials to present complex and not so very clear documents. Documents like the one before the Committee that spoke of readiness should be clear on whether or not the departments were ready. The document seemed to say that there were a lot of processes that were still underway but nothing was being said about the state of readiness. There was also no final analysis that said the departments were ready or not. He was so used to this kind of presentation, not just from DOJ&CD, that were just all over the place. Why did we still have a problem with statistics, was the Department expecting the Committee to point out the importance of statistics as a key basis for the enactment of the legislation.

Ms Lekubu-Wilderson conceded that the Department was struggling with data as prosecutions for human trafficking were based on several pieces of legislation and this made it difficult to identify and keep track of the offence, which was not specific. Bureaucracy had worked with what it was given and there had not been a specific piece of legislation that dealt with human trafficking before. With the Bill being in the process of finalisation, statistics were being collected. The concerns raised by the Committee were also on her mind as well however they did not have sufficient time to prepare a report to present before Parliament. The departments would look into the concerns raised by the Committee and would address them so as not to come here again unprepared. 

The Chairperson said that there was a column in the report that was meant for DSD which kept saying till August, it was October now and that meant that the deadline had already been missed. If the Committee was being taken seriously, then it should have been given adequate and consistent feedback.

Gen Tertius Geldenhuys,
SAPS Head: Legislation and Legal Services, said that SAPS was still in consultation with the costing consultants regarding the matter of 17 000 new detectives that had to be trained in the implementation of the Bill. Visible police officers who were not detectives had to be able to recognize instances of trafficking or where there was reasonable belief that trafficking had occurred. These members of SAPS also had to be trained, they were large in number and therefore they would be trained over a number of years. The training manual would be drafted and aligned with the provisions in the Bill. The remarks about the dedicated human trafficking desk were unfair as this was only a coordinating desk. This was a coordinating point that ensured that the Directorate for Priority Crime Investigation (Hawks) units across the country received adequate information. Three were also provincial task teams that focused primarily on trafficking. There was no such crime as human trafficking except in the Sexual Offences Act and Children’s Act. This meant that there were no consolidated statistics on human trafficking cases. Once the Bill was enacted, the operations of SAPS would come into place.

Ms Conny Nxumalo, DSD
Chief Director: Families and Social Crime Prevention, said that her report had the correct dates and it was unclear where DOJ&CD got its dates from in the final report. She had the DSD version which was submitted to DOJ&CD for the purposes of the final presentation.

The Chairperson requested that the Committee should have the updated version.

Ms Nxumalo continued that a scholarship had been given to DSD by Treasury to train more social workers. Social workers were not coping with their current workload but there was a need for training them as human trafficking was a new phenomena. There were no statistics on human trafficking and this made it difficult to know how many accommodation structures had to be built especially since Treasury would not allocate funds without a feasibility study having been conducted.  

The upgrading of shelters mentioned in the presentation was for security at the accommodation shelters. The budget for training was huge because there were many things which their social workers and officials had to be trained about.

Mr Jonas Sibiya, Budgetary Unit of DOJ&CD, said that the Department of Justice has set aside R3 million for the current and next financial year as it was anticipating the Bill to come into effect soon. The MTEF figures that were queried by the Committee were predetermined by Treasury.

Mr Jeffery said that his question was a query about whether or not the escalation for the Bill was in the budget for 20011/12 and if so, how much across all the departments?   

Mr Sibiya replied that the Department would go to Treasury and present any anticipated budgets which were then factored in the MTEF period. Treasury also took its own initiative to track the process for the finalisation of this Bill to anticipate when it would become an Act. It should be also borne in mind that they were expected to cost the Bill - not say how much they had for the purposes of implementing the Bill at this stage.   

Mr Jeffery said that the question was the costing of the Bill and then separately how much had been allocated. If nothing was allocated for the next financial year in anticipation of the enactment of the Bill then they were all in trouble. He understood that R3 million had been set aside from DOJ&CD, how much had been set aside by the other departments and how much had been costed?

Ms Nxumalo replied that DSD did not have a specific budget set aside for the Bill but there was an overall budget for the broader victim empowerment programme. R18 million would be required for the next three years however costing did not mean that one had the money. The funds would still be requested from Treasury.

Mr Geldenhuys said that SAPS had a similar process; there was a current budget that was anticipated to be put in use for the performance of activities. This would mean shifting of priorities within the budget, so there was funding available. For the next financial year they would only be in a position to say something once the Minister of Finance had announced the Medium Term Budget Policy Statement that afternoon.

The Chairperson said that the Medium Term Expenditure Framework was a statement that was usually finalised in December - it was not always definite. From a technical point of view officials from departments were supposed to assist in this process by identifying their priorities. Therefore the response from Mr Geldenhuys that SAPS would wait for the Minister of Finance was not satisfactory.

Mr Jeffery said that his question about the personnel cost had not been answered. One would be able to obtain statistics from other pieces of legislation such as the old Sexual Offences legislation that even prohibited child labour. The Bill had been around for six years. It was criminal that officials did not have any stats let alone an agreement with other departments as to the size of the problem that has to be budgeted for. He thought that they were not serious about the problem and they were all not taking Parliament seriously. Another concern was that the Bill could be used by migrants and economic refugees to claim that they were trafficked, how would this be investigated and substantiated? Accredited organisations which would be responsible for issuing certificates might also bend the system so as to have more victims and thus more money.

The Chairperson added that by his own standards, he would also not have accepted the presentation.

Mr Geldenhuys replied that there was an ongoing process where SAPS members had been asked to collect information where crimes fitted or had elements of the definition of human trafficking as set out in the Bill since it came into prominence. There was however confusion as to what constituted human trafficking. Therefore at this stage there were no reliable figures.

Mr Tong replied that DOJ&CD did not want to present the breakdown on how much each costing figure had been arrived at since this would have rendered the presentation overly detailed and complex but if the Committee wanted the information then it would be provided.

The Chairperson said that there was no problem with detailed presentations and in fact they were welcomed by Parliament. The problem only arose when documentation came late for purposes of the meetings.   Already DSD had distanced itself from some of the information in the presentation. This said a lot about the coordination of the departments. In future, where a document was an inter-sectoral document, the leading department would be held accountable, in this instance it would be the DOJ&CD.

Ms Lekubu-Wilderson said that the time frames given to the departments were too tight. As a Director she was responsible for trafficking, victim support, sexual offences and coordinating this process with five other departments. She had only one assistant director. Nobody had thought about the consequences of cluster work within the current structure. If she had the powers to say to Parliament, “I will not appear before you because I am not ready”, she would have done so. The human resources available were not enough.

Ms Schaefer said that she could sympathise but the Bill had been in the pipeline for the last four or five years. The Department had to look at being proactive and preparing the information in advance.

Mr Jeffery also expressed his sympathies but said he was worried about how the departments would received the Bill once it was an Act. The difficulty for the Committee was what to put in and what would it cost.

The Chairperson closed by saying that the officials should inform their bosses as to what difficulties they faced. The departments should interact with the Committee Secretary and inform the Committee when they would be able to re-table the presentation before Parliament. 

Repeal of the Black Administration Act Amendment Bill introduced
Committee approved introducing a Bill that would extend the date of application of section 1(3) of the Repeal of the Black Administration Act and Amendment of Certain Laws Act, No 28 of 2005, to 30 December 2012.  The extension was for the purposes of obtaining greater public input and consensus on contentious issues contained in the Traditional Courts Bill [B15-2008] and allowing traditional courts to continue functioning legally.

The Committee, in accordance with Rule 243, reported that it had introduced the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B37-2010].

Meeting Adjourned.


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