The Portfolio Committee on Justice and Constitutional Development deliberated on the Prevention and Combating of Persons in Trafficking Bill on a clause-by-clause basis with the state law advisors. On the definition of ‘abuse of vulnerability’ the Committee said it should not be restricted to exclude financial abuse. A public submission had suggested that this definition be aligned to the one in the Palermo Protocol which used the phrase “abuse of a position of vulnerability” and not just ‘abuse of vulnerability’. The Committee was unclear about the difference and concluded that there was none. The Committee was fearful that the way the Bill was phrased, the decision of whether a person had been trafficked or not lay with an accredited organisation. Once a person had a certificate they had access to a whole range of resources, this was alarming. There could be enormous abuse and it would not even be government deciding but an accredited organisation. The Committee recommended that ‘any juristic person’ should be added to the definition of ‘carrier’ and the word ‘company’ removed.
The Committee complained that to understand the definition of ‘trafficking’ one had to look at the definition of ‘exploitation’, ‘debt bondage’ and ‘abuse of vulnerability’ as well. This was a belts and braces approach and an alternative method should be sought. There was debate between the Committee and state law advisors on the implications of amending the definition of ‘forced marriage’ to include ‘either or both of the parties to the marriage should consent’ or to leave it as it was. The recommendation was that ‘each’ should be used to indicate to law enforcement officers that the valid consent of each individual party to a marriage was sought. Under the definition of ‘sexual exploitation’, it was suggested by a Member that everything that was after “trafficking” should be deleted. If it was covered in existing legislation there was no need to repeat it here. It was agreed that for the definition of ‘trafficking’ the Department would provide a list of other countries where trafficking had been defined. The definition in the Bill was based on the Palermo Protocol but also went further. The Department had also tried to align it with the Criminal Law (Sexual Offences) Amendment Act.
The Committee reiterated the need for statistics and data to be able to ascertain the nature and size of the trafficking problem in South Africa. The Committee wanted to avoid unintended consequences in the Bill and did not want to over legislate for trafficking given the lack of hard and sufficient data. The concern was that the Bill would address people’s socio-economic conditions beyond its original intentions.
The Chairperson informed the Members that the deliberations would be on a clause-by-clause basis.
Mr J Jeffery (ANC) said that the Committee needed more data on the problem of human trafficking. The Committee still had to meet with the stakeholder departments, the South African Police Service, the National Prosecuting Authority (NPA) and non-government organisations (NGOs) in order to statistically determine the size of the problem. For the moment, the Committee could look at tightening the criminal law aspect and look at the clauses that were not affected by the statistics.
The Chairperson asked if anybody was opposed to the proposal.
Mr S Swart (ACDP) said he was in agreement with the approach as it was necessary. The Committee had to ascertain the data beyond anecdotal evidence. The Committee could benefit from having the United Nations and other experts present data. The South African Human Rights Commission (SAHRC) report previously referred to, had been discredited to a certain extent as it lacked data.
The Committee Secretary informed Members that a meeting was being arranged between the Committee, government departments and NGOs for the purposes of gathering statistical information.
Mr Jeffery said that the organisations that would be invited should be from government, labour and the NPA. Only NGOs which had statistics should also be allowed to participate. In other words they should participate if they had facts and figures. With regards to sexual offences, this had been part of the Sexual Offences Act since 2007; therefore there should be data for at least two years. The worry would be labour trafficking.
The Chairperson said that Mr Lawrence Basset, Chief Director: Legislation, Department of Justice, and his team would lead proceedings. If there were any questions the Members could interrupt and ask questions or make comments.
Clause by clause deliberations
Ms Lowesa Stuurman, South African Law Reform Commission (SALRC) began with the definitions:
Clause 1 Definitions
abuse of vulnerability
One of the suggestions from the public hearings was that this should be aligned with the definition contained in the Palermo Protocol. The protocol referred to the “abuse of a position of vulnerability”. Most of the submissions suggested that this should be aligned with the wording contained in the trafficking protocol. It was also suggested that the words “physical or psychological abuse “ should be removed as it limited the definition.
Mr Jeffery said that he was lost as the working draft of the Bill handed out did not have what Ms Stuurman was referring to.
Mr Basset explained that the document handed out only had what the Committee had proposed amending.
Mr Swart pointed out the Committee was not dealing with the document handed out but with the Bill. If an issue in the document came up then it would be dealt with as the Committee went through the Bill.
Ms D Schaefer (DA) said that she was not sure if the phrase “position of vulnerability” made a big difference or not. However, the point was validly made that it should not be restricted to physical and psychological abuse as it would then exclude financial abuse as well.
Mr B Holomisa (ANC) said that he was under the impression that as the Committee went through the Bill clause-by-clause the Department would point out the proposals made during the public hearings and then indicate the Department’s position.
Mr Basset said that the Department was under the impression that the process referred to by Mr Holomisa was already completed but the Department could go through the suggestions as well as the Department’s responses.
Ms Stuurman continued that during the public hearings it was suggested that reference should be made to abuse of a position of vulnerability and not just abuse of vulnerability. The Department considered the wording in the trafficking protocol and was of the view that there was no difference. The Department would thus support the inclusion of ‘position of’.
Mr Jeffery asked what was the difference between the two.
Ms Stuurman replied that there was none. The Department adopted ‘abuse of vulnerability’ because that was how it was used in the Children’s Act. The wording was adopted so that it could be consistent with the wording in the Children’s Act.
Mr Jeffery said that in some of the submissions it had been suggested that the wording of the Bill should be consistent with the wording used in the Palermo Protocol. The question was how would this be understood in the context of South African law. It was not clear what the difference was between the two terms but neither of them seemed to be good English. Perhaps for the sake of consistency, one should use the same wording as the Children’s Act which was ‘abuse of vulnerability’.
Ms Stuurman said that the wording in the Children’s Act was used for better reading.
Mr Bassett added that from a language perspective there was no difference.
Dr Oriani-Ambrosini (IFP) agreed that here was no difference in the wording.
Mr Jeffery said that since there was no difference then it would be a question of better language and what was easily understood in our legal system. It would be okay to follow the Palermo Protocol but then it was not known from what language it was translated. It was better to keep definitions within our own law the same, in other words we should stick to the wording used in the Children’s Act.
Mr Holomisa agreed with Mr Jeffery.
Dr Oriani-Ambrosini said that language of international treaties is by necessity different from the language of implementing legislation, as a treaty is meant to be implemented and adjusted to different legal systems: hence there is no obligation to import into our legislation the actual language of the treaty.
Mr Bassett said that the wording in the Bill would probably repeal the wording in the Children’s Act.
Mr Swart said that the Committee should move forward.
Dr Oriani-Ambrosini said that he was concerned that the Bill had widespread implications and the Committee had not been presented with sufficient evidence that there was a huge problem that had to be corrected. It was best to flag issues that required data on trafficking. The Committee could expand its work later rather than have the same problem as the Refugee Act where the unintended consequences outweighed the value of the legislation. The phrase “socio-economic circumstances” in the definition was discomforting.
Ms Schaefer said that abuse of financial vulnerability could be added to address the concerns about socio-economic circumstances, which was very wide.
Mr Jeffery said that he understood the point being made by Dr Oriani-Ambrosini and there were concerns that people could access the benefits intended for victims through claiming that they were trafficked when they had in fact not been trafficked. It should be kept in mind that the whole definition of ‘abuse of vulnerability’ should be considered. Although socio-economic circumstances were included in the Bill, there were other criteria that had to be satisfied.
Ms Schaefer said that another view was that people could claim under the definition that they were being exploited at work because of their socio-economic circumstances and they had no other alternative but to submit to such conditions. The definition could be open to abuse.
Mr Basset responded that the ‘abuse of vulnerability’ was for the purposes of the definition of ‘trafficking’ so one would have to go back to the definition to address what Ms Schaefer was talking about.
The Chairperson asked if Dr Oriani-Ambrosini felt strongly about the exclusion of socio-economic circumstances form the definition of ‘abuse of vulnerability’.
Dr Oriani-Ambrosini replied that he shared the same concerns with Mr Jeffery but did not take exception to what he had said. This was a concern. However the Committee should move on and determine what would eventually be in the Bill.
Ms Stuurman continued that paragraph (e) of ‘abuse of vulnerability’ should include a reference to women as well. The Department did not agree with this, as the fact that a person was a woman did not render them to be vulnerable.
Mr Jeffery agreed with the Department’s response.
Ms Stuurman continued that that there had been no submissions on this definition.
Mr Jeffery said that the definition should stand over. This was due to the fear that with the way the Bill was phrased at the moment. The decision on whether a person had been trafficked or not now lay with an accredited organisation. Once a person had a certificate they had access to a whole range of resources, this was scary. There could be enormous abuse and it would not even be government deciding but an accredited organisation.
Dr Oriani-Ambrosini said that he had posed a question during the public hearings about if any prostitute fit the definition of a trafficked victim. The answer had been yes. The Bill would address people’s socio-economic conditions beyond its original intentions. Mr Jeffery was correct in his concerns.
Ms Stuurman said that there were no submissions in respect of this definition.
Mr Swart asked if the definition covered all possible juristic and legal bodies bearing in mind that the Bill provided for extra-territorial jurisdiction and international company law. Did the Bill cover foreign carriers such as Lufthansa? Did “company” include a close corporation and a partnership? The Committee had to consider a more embracive definition.
Dr Oriani-Ambrosini said that he agreed with Mr Swart, the words ‘any juristic person’ should be added to the Bill. The Bill did not have extra territorial jurisdiction. It took cognizance of facts outside of the country for purposes of its application within the boundaries of the country. The Palermo Protocol dealt with smuggling and trafficking. The Bill only dealt with trafficking. In the Palermo Protocol there was a much broader definition of carrier and it was questionable whether the Bill covered all situations.
Mr Holomisa said that “company” stood by itself if one looked at the other inclusions in the definition.
Ms Stuurman responded to the question about whether the definition would include a juristic person by the referring the Committee to the definition of ‘person’ further on.
Dr Oriani-Ambrosini noted that the word ‘person’ was not included in the definition of carrier. Ms Schaefer agreed with him.
Mr Jeffery agreed with Mr Holomisa, the word “company” was out of place.
Ms Stuurman mentioned that the definition of ‘carrier’ was based on the definition in the Sexual Offences Act. Given the fact that the Bill once enacted would repeal the trafficking provisions contained in that Act, the Department had attempted as far as possible to align the two pieces of legislation.
Mr Jeffery said that Mr Holomisa had pointed out a mistake. If that mistake was in the Sexual Offences Act must the Committee then simply repeat all the mistakes, of course not.
Mr Holomisa suggested that “company” should be removed.
Dr Oriani-Ambrosini agreed. If one was not intentionally involved in using that means of transport for victims of trafficking, then they should not be defined as a ‘carrier’.
Mr Jeffery referred Dr Oriani-Ambrosini to clause 9 on Liability of carriers.
Dr Oriani-Ambrosini said that perhaps if the word “knowingly” was added it might address the issue of control.
Ms Schaefer said that if a company was involved in trafficking and the owner did not know about it then that was a problem. If the owner could prove that they did not know then this could be provided for in the Bill.
Dr Oriani-Ambrosini said that if a carrier had someone with no proper documentation on board then they would get a fine. However if the person on board was a victim of trafficking, the provisions of clause 9 would come into effect. One would not want to create strict liability in a criminal matter.
Mr Jeffery said that the definitions were cross-referenced in the Bill and suggested that the Committee should rather flag such issues now and return to them later. The relevant changes regarding the additional words ‘any juristic person’ and removal of ‘company’ could be made in the meantime.
Dr Oriani-Ambrosini said that something was not right with this definition as there was an ‘or’ instead of an ‘and’ which would include sub-paragraph (a).
Mr Swart corrected Dr Oriani-Ambrosini and said that sub-paragraph (a) and (b) went together, they were not separated by the ‘or’. Dr Oriani-Ambrosini was regrettably the only one who had read the definition incorrectly.
Ms Engela Steyn, State Law Advisor said that this was a sandwich provision and if there was a piece at the end that was applicable to (a) and (b) one would end it with a comma as opposed to a semi colon after (a) which would then make it into a new point.
Ms Stuurman said that the definition of trafficking contained in the international protocol was not in line with the domestic situation in
Mr Swart said that he would like an all-encompassing and broader definition so as to cover all possible forms of exploitation. Why was there this belts and braces approach?
Ms Suraya Williams, Principal State Law Advisor agreed that it was a belts and braces approach to make for easier reading.
Mr Jeffery said that in order for one to understand the definition of ‘trafficking’ one had to look at the definition of ‘exploitation’, ‘debt bondage’ and ‘abuse of vulnerability’ as well. Was there any layperson or even magistrate who would have a clue as to what trafficking was. Had not the Department with its belts and braces approach made this too complicated, was this indeed the best approach?
Mr Swart said that the definition was at the heart of the Bill and the issue should be flagged.
Dr Oriani-Ambrosini said that the definitions were at the core of the Bill. The definitions were being read back to front because they were arranged alphabetically. If they were arranged for purposes of law then the starting point would be ‘trafficking’, then ‘abuse of vulnerability’ and then ‘exploitation’. Things made sense when following this sequence. The inclusion of sexual exploitation was a problem as it grouped together massage parlours and strip clubs with brothels, which were different and offered different services. A massage was a massage and sex was sex. This was a shotgun approach trying to reach out where there were no problems and this would result in unintended consequences.
Ms Stuurman said that the drafting of ‘trafficking’ was not easy to draft as one realized that the legislation in which it was contained was generally not understood and there was a need to define it further, this also applied to the definition of ‘sexual exploitation’. The definition of ‘sexual exploitation’ did not try to cover everything but only applied if there was a criminal offence involved. It did not target every single type of massage parlour.
Mr Swart said that the definition did not apply where a person was procuring a massage but only if a victim of trafficking was performing services in a massage parlour for example. This was a very narrow definition. The definition should be retained.
Ms Schaefer agreed with Mr Swart.
Ms Stuurman said that a committee member had suggested that the issue of consent should be brought in under this clause. The recommendation was captured in the working draft document. The Basic Conditions of Employment Act made forced labour an offence but did not define forced labour. Would it not be ideal to amend the Basic Conditions of Employment Act as opposed to dealing with it in the trafficking legislation?
Mr Jeffery said that the Department of Labour would have to be consulted, as the Committee should not just amend their Act without consultation. It was not clear whether consent was necessary.
The current definition was: ‘‘forced marriage’’ means a marriage concluded against the will and without the valid consent of both parties to the marriage.
Ms Stuurman said that during the public hearings it was submitted that the definition should include ‘either or both of the parties to the marriage’
Ms Schaefer said that if consent did not come from both persons then it was a forced marriage; one person could not consent to a marriage.
Ms Stuurman said that this should be read within the trafficking of persons where people were being trafficked and sold for the purposes of getting married, so victims were not willing to get married but the other party was willing. The current definition in the Bill meant that if one party consented then that would not be a forced marriage.
Mr Swart said that this issue must be flagged because criminal offences were being created and consent should not be a defence.
Ms Schaefer said the definition was adequate enough to cover the point raised by Ms Stuurman.
Mr Jeffery said he did not have a problem with the amendment as it made things clearer. It should be valid consent just as it was under forced labour.
Ms Schaefer said that if it was made to read ‘without the consent of either of the parties’ then it made a marriage not fall under a forced marriage if one of the parties consented.
Dr Oriani-Ambrosini said that he did not understand the difference between ‘against the will’ and ‘valid consent’. The legislator should just be concerned with consent.
Mr Jeffery suggested that the word ‘each’ of the parties could solve the dilemma.
Ms Stuurman responded to Dr Oriani-Ambrosini and said that ‘against the will’ was included so as to bring it in line with the definition of forced marriage.
Dr Oriani-Ambrosini said that he was in fact referring to both definitions for example people worked against their will but not with their consent. What mattered in law was one’s consent not whether or not one wanted to do something.
Mr Holomisa said that there would be a problem if there was only the ‘will’ but now there was the ‘will’ and the ‘valid consent’ so Dr Oriani-Ambrosini was covered.
The Chairperson said that the inclusion of both terms was a matter of emphasis.
Mr Jeffery said that if one did something against one’s will, one had not consented. What was the purpose of both? Was ‘against the will’ not covered by consent? Was the main term not just valid consent, what do one get by having both?
Mr S Ntapane (UDM) agreed with Mr Holomisa, one could consent against one’s will perhaps if one was forced by certain circumstances. The ‘will’ had to be there.
Mr Bassett said that the matter would be flagged and the Department would come back to the Committee.
illegal foreign child
Ms Schaefer asked if ‘foreign child’ had to be specified separately as opposed to just using ‘foreigner’.
Ms Stuurman replied that the reason was because there were provisions, which dealt with adults and others, but dealt separately with children in the Bill.
removal of body parts
Mr Swart said that he was not happy with the wording as it was, this would need a bit more work. There was the Human Tissue Act.
Ms Schaefer said that the Human Tissue Act had been repealed.
Mr Swart continued that the words the ‘removal of’ and ‘or trade in’ had to be separated as opposed to making it one long sentence.
Dr Oriani-Ambrosini said that he was not happy with the mere possession of body parts triggering criminal consequences, the Committee had to be careful.
Mr Swart said that it must not only be the possession, there had to be intent behind that possession.
Mr Jeffery said that in that case it had to be under the Offences and not Definitions.
Ms Stuurman said that the definition was in line with the international definition of servitude.
Mr Jeffery asked if there was any definition of ‘servitude’ anywhere else in
Ms Schaefer replied that there was a definition of servitude in property legislation but of a different kind.
Ms Stuurman said she was not aware that there was a definition and the Department would look it up.
Dr Oriani-Ambrosini said that he disagreed with the point made earlier by Mr Swart. The definition hinged on what constituted an act of a sexual nature. Everything that was after trafficking should be deleted in the definition. If it was covered in existing legislation there was no need to repeat it here.
Mr Jeffery said that the whole thing was contorted. It seemed to overlap and was it necessary? Why was there a need for the term ‘sexual exploitation’ and not ‘commission of any sexual offence’ as the latter was used elsewhere in the Bill?
Mr Swart said that this should be another issue that would be flagged.
Dr Oriani-Ambrosini said that this issue should be flagged as well as the matter of the definitions which kept bouncing around each other.
The Chairperson asked when the Department would be able to get back to the Committee on the flagged issues as it was November already.
Mr Bassett replied that if the Chairperson asked the Department to come up with something tomorrow then they would do their best.
Ms Stuurman commented that it was not a criminal offence for an adult woman to participate in the production of pornographic material or work in a massage parlour but the reality was that persons, who were trafficked and kept against their will, were working in these places. Should this not be legislated for just because it was not illegal?
Mr Jeffery said that he was completely confused because the reading of ‘sexual exploitation’ was that a commission had to be a sexual offence in terms of criminal law or an offence of a sexual nature. It was not a person who was legitimately working in the pornographic industry that had been trafficked; the difficulty was understanding the difference between sexual exploitation in the Bill and sexual exploitation as an offence in the Sexual Offences Act.
Mr Swart asked from where the definition came, did the Department come up with it by itself and was it an accepted definition?
Dr Oriani-Ambrosini said that he was comfortable with the definition even though he was not very clear on it.
Ms Stuurman sad that there was a definition in law but it was not clear at all, it was adjusted so that it could be clear for purposes of the Bill.
Dr Oriani-Ambrosini said that he did agree on the deletion of the part highlighted in bold. Sub-paragraph (j) had to be deleted but (k) remained immensely problematic. Since the beginning of the process, the Committee had not seen any data or victims.
Mr Jeffery said that the definition was complicated. It would be interesting to know what happened in other countries. The Department had gone for a belt and braces approach. It was not clear why the Department went further than the Palermo Protocol.
Ms Schaefer agreed that the wording had to be revisited. Should slavery also not be included or was it covered?
Ms Stuurman said that the Department would provide the Committee with a list of other countries where trafficking had been defined. The definition in the Bill was based on the Palermo Protocol but also went further. The Department had also tried to align the definition in the Bill with the Sexual Offences Act. Sub-paragraph (j) was taken from the Palermo Protocol and (k) was added to extend it. It did not make sense to have (j) and (k). If both were deleted than the Committee would be going against the provisions of the protocol.
Mr Bassett said that during the public hearings there were criticisms that the definition made for difficult reading.
Mr Jeffery said that the Committee should look at other countries. Was it possible to have the definition of ‘trafficking’ and a list of elements which should go together?
Clause 2 Objects of Act
Mr Jeffery said that this should be tagged and dealt with at the end of the Bill.
Clause 3 Public awareness
Mr Jeffery said that clause 3 would be determined by the extent of trafficking in
The Chairperson commented that the Committee had made some progress and would meet again tomorrow.
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