The Committee continued deliberations on the Prevention and Combating of Trafficking in Persons Bill. At the request of the Committee, the Department of Justice and Constitutional Development had investigated the definitions of ‘trafficking’ and the offences contained in the legislation applicable in several other African countries, Australia, the United Kingdom and the United States of America. The Committee found the recent Kenyan legislation to be the most easily understandable and comprehensive.
The State Law Adviser took the Committee through Clauses 4 to 16 of the Bill. The Department had prepared revised provisions for Clauses 9, 11, 12, 13, 14 and 16. The relevant comments in the submissions received by the Department were summarised for each clause.
The Members of the Committee discussed the provisions in the Bill and made several suggestions for amendments. The Committee requested a briefing by the National Prosecuting Authority on the sentencing requirements to be included in the Bill.
The Department undertook to revisit certain clauses, hold further discussions with the affected stakeholders and present alternative or amended provisions for consideration by the Committee. Deliberations on the Bill would continue during the following meeting of the Committee.
Deliberations on the Prevention and Combating of Trafficking in Persons Bill
Mr Lawrence Bassett, Chief Director, Department of Justice and Constitutional Development, advised that the Department had investigated the provisions concerning offences and the definition of ‘trafficking’ included in similar legislation applicable in other countries. A document containing the relevant definitions was circulated to the Members of the Committee. The Department was in the process of compiling a document summarising the issues raised by the Committee to date and expected it to be finalised in the near future.
Mr J Jeffery (ANC) observed that the definition in the Zambian legislation appeared to be the simplest. He asked where the definition in the report of the Law Reform Commission had originated. He requested the Department to advise which definition was recommended.
Mr Bassett explained the background to the current version of the Bill. The Bill was submitted to Cabinet for approval before being published in the Government Gazette. The Department received a number of comments, which were included in the amended Bill that was submitted. There was general agreement to the definitions included in the Bill and the need to include the definitions to guide prosecution and the Courts as the proposed legislation introduced a new type of offence.
Ms Lowesa Stuurman, State Law Adviser, explained that the Department had used the definitions in the United Nations (UN) Protocol to Prevent, Suppress and Punish Trafficking in Persons (also referred to as the ‘Palermo Protocol’) in formulating the definitions in the Bill. The Department had carried out an extensive consultation process over a period of three years. The input received indicated that the definitions in the Bill needed to be more comprehensive than the definitions formulated in the Palermo Protocol. She took the Committee through the comparative study done by the Department on the definition of ‘trafficking’ and the description of the offences in the legislation passed by Zambia, Mozambique, Kenya, Australia, the United Kingdom and the United States of America.
Mr Bassett referred the Committee to the original definition of ‘trafficking’ included in the Bill.
Professor L Ndabandaba (ANC) wanted to know how many countries were considered in the study.
Ms D Schäfer (DA) observed that the provisions in the Australian legislation appeared to be more complicated than the Zambian definitions.
Mr Jeffery preferred the provisions in the Kenyan legislation, which was passed in 2010 and clearly described the offence as ‘traffic in persons’. The Committee needed sight of the report from the Law Commission as well. The original version of the Bill had a more detailed description of the offence and he asked which submissions received had resulted in the description of the crime being changed. The National Prosecuting Authority (NPA) would be responsible for prosecuting offences and had to be satisfied with the definitions in the legislation. He noted that certain countries had a closed list of offences, which was less confusing than an open list.
Ms Stuurman replied that the legislation of countries in Africa as well as other developed nations with similar human trafficking problems to
Mr Jeffery suggested that it was necessary for all the parties to apply their minds before proceeding with the Bill. It would be useful for the Committee to hear the comments of the NPA. It was necessary to clarify the offence and definitions to ensure that the crime was clearly understood and prosecutable.
Prof Ndabandaba agreed with Mr Jeffery and said that clarity on the elements constituting the crime was important.
Ms Schäfer was in agreement as well and supported the suggestion that the NPA made a submission to the Committee on the prosecution aspects. She asked if a definition of ‘traffic’ needed to be included in the Bill.
The Chairperson asked if there was a person in the NPA in the
Mr Jeffery suggested that decision on who would brief the Committee was left to the NPA.
Mr Bassett advised that the Kenyan legislation and the Committee’s suggestions would be considered and that the Department would submit alternative proposals to the NPA for consideration.
The Committee proceeded with deliberations on the Bill from Chapter 3 – Offences, Penalties and Extra-territorial Jurisdiction.
Ms Stuurman took the Committee through the provisions of Clause 4, which dealt with the trafficking in persons and acts aimed at committing, acquiring another person to commit, or conspiring to commit an offence under this chapter. The provisions under Clause 4 (2) were similar to the provisions under the Riotous Assembly Act.
Mr Jeffery asked why the provisions in the Riotous Assembly Act were repeated in the Bill. The Act dealt with gatherings but he questioned its relevance to trafficking. He questioned whether all the acts listed in Clause 4 (2) (b) were applicable to trafficking, for example the relevance of ‘incites’ and ‘instigates’ in trafficking was debatable. He felt that the wording in the Kenyan legislation was more appropriate.
Ms Schäfer noted that the provisions under Clause 4 were subject to section 51 of the Criminal Law Amendment Act and asked if minimum sentencing would apply to both Clauses 4 (1) and (2).
Ms Stuurman advised that sub-clause (2) was included by the State Law Adviser, who would be better able to respond to the questions concerning the motivation behind the provisions. Article 5 of the Palermo Protocol required each State to pass legislation combating human trafficking and provided guidelines.
Mr Bassett agreed that the inclusion of the provisions under the Riotous Assembly Act needed to be reconsidered. The guidelines in the protocol and the Kenyan legislation had to be studied again. Provisions under other pieces of legislation might be more appropriate.
Mr Jeffery remarked that trafficking in persons tended to be a chain of events, involving more than one person in the crime. Existing legislation might not be adequate as it dealt with single events. It was necessary to have legislation in place to specifically deal with trafficking.
Ms Schäfer asked if the clause should be rephrased to cover any action aimed at committing the offence.
Ms Stuurman replied that the offences were already covered by other legislation. Her concern with minimum sentencing was the apparent anomalies in the sentences imposed, for example the maximum sentence if found guilty of the crime of debt bondage was 15 years but the attempt to commit the same crime was a sentence of life imprisonment.
Mr Jeffery was concerned that relatively light sentences and fines could be imposed, which would not be appropriate for human trafficking. The trafficking in persons generally involved transport and the owners of the vehicles should be held liable. He felt that the liability for financing of trafficking should be stricter and asked if that aspect was covered by existing legislation.
Ms Stuurman responded that Mr Jeffery’s concerns were addressed in Clause 9 of the Bill. The Law Commission had commented that the penalties imposed were too lenient. The matter was discussed with the NPA, who was not in favour of imposing minimum sentences, with the exception of the crime of trafficking. She quoted the remarks made by Judge Deon van Zyl in the Legal Brief of 1 November 2010 and the press that minimum sentencing imposed a burden on Correctional Service facilities and resulted in massive overcrowding in prisons. Minimum sentencing limited the discretion of judicial officers and more research into the effects on the system of long prison sentences had to be undertaken. She pointed out that the provisions in Clause 5 of the Bill imposed a maximum sentence for debt bondage was a term of imprisonment not exceeding 15 years.
Ms Schäfer suggested that only Clause 4 (1) (i.e. the offence of trafficking in persons) was subject to the minimum sentencing provisions in section 51 of the Criminal Law Amendment Act. Making the offences listed in Clause 4 (2) subject to minimum sentencing was contradictory.
Mr Jeffery disagreed with the comments made by Judge Van Zyl, who was the inspecting judge for prisons. The
Ms Stuurman took the Committee through the provisions in Clause 6, which dealt with possession, destruction, confiscation, concealment of or tampering with documents. None of the submissions received included comment on the clause.
Ms Schäfer asked what motivated the varying terms of imprisonment. Certain offences were subject to a term of 10 years while others were for 15 years.
Ms Stuurman replied that the terms of imprisonment were suggested in the submissions.
Mr Jeffery felt that the Committee should decide the appropriate term of imprisonment in accordance with the seriousness of the offence. For example debt bondage and slave labour were more serious crimes than the possession of documents. He was concerned that the imposition of maximum sentences allowed judges to impose relatively light sentences.
Ms Stuurman took the Committee through the provisions of Clause 7, which dealt with the use of services of victims of trafficking. The submissions received recommended that the penalty imposed should be increased.
Ms Stuurman read the provisions of Clause 8, dealing with conduct facilitating the trafficking in persons. The
Mr S Holomisa (ANC) observed that media facilities could also be used for legitimate advertising purposes. He asked if there was adequate protection for persons whose facilities were unknowingly used for trafficking purposes.
Mr Jeffery was concerned that Clause 8 (1) (a) did not cover the situation where a landlord became aware that the rented premises was being used for trafficking purposes only after a lease was entered into. The clause only covered the situation where the landlord was aware that the premises would be used for trafficking at the time the lease agreement was signed.
Ms Stuurman replied that a similar concern was raised in the submissions. She referred to the document summarising the Department’s responses to the submissions (page 20). She agreed that the clause did not cover the situation where the owner of a property became aware that the premises was being used for trafficking only after entering into a lease agreement. The Department would propose an amendment to Clause 8 to cover the latter scenario.
Ms Suraya Williams, Principal State Law Adviser, pointed out that the phrase ‘or allows it to be used’ was included in Clause 8 (1) (a).
Mr Jeffery said that the provision required the owner of the property to have knowledge that the property would be used for nefarious purposes. He felt that it would be difficult to prove that a person ‘aught to have known’ how the property would be used. He welcomed the intention of the Department to amend the clause.
Ms Stuurman agreed that the owners of property and media facilities had to have knowledge of the illegal activity. For example, it was difficult to ascertain whether or not classified advertisements in newspapers involved trafficking. It was necessary to give the issue further consideration as unintended consequences had to be avoided.
Mr Jeffery asked if it would still be necessary to include Clause 4 (2) if all the offences relating to aiding and abetting were covered in Clause 8.
Ms Stuurman replied that the Palermo Protocol required that the legislation included provisions preventing the organising of trafficking. She agreed that the provisions covered in Clause 8 could be deleted from Clause 4.
Ms Stuurman proceeded with Clause 9, which dealt with the liability of carriers. She referred to the amended clause suggested by the Committee during earlier deliberations (see document circulated during the deliberations held on 2 November 2010). The submissions received by the Department recommended that the provisions were applicable to internal carriers as well as cross-border carriers. The Department felt that the heading of the clause should not be changed.
Mr Jeffery pointed out that the victims of trafficking would be unlikely to be traveling legally. He asked if there was any legislation governing illegal traveling. The clause made no provision for the obligation to report trafficking by an employee of the carrier, for example if a passenger became aware that a fellow passenger was the victim of human trafficking and reported the matter to an air hostess employed by the airline.
Mr Bassett agreed that the definition of ‘carrier’ had to be revised to ensure that all eventualities were covered.
Ms Schäfer asked how it would be known if a victim was traveling on invalid passport. She asked how the owner of a stolen car that was used to transport a trafficking victim would be affected.
Mr Jeffery pointed out that the legislation assumed knowledge of the illegal activity. A person was not held liable it he could prove that he did not know that his vehicle was being used for illegal purposes. He noted that there had been objections in the submissions received that the burden of liability was too strict.
Ms Stuurman replied that the Immigration Act dealt with traveling on invalid passports and imposed a maximum fine of R10,000. The maximum fine under Clause 9 was R1 million.
Mr Jeffery noted that the owner of the carrier was responsible for the cost of care, accommodation and repatriation of victims. For example, South African Airways had to cover the cost of repatriating the Thai women alluded to earlier. The clause imposed an additional duty on the airline. The clause should impose a civil liability on the owner of the carrier who was not guilty of a criminal offence.
Ms Stuurman took the Committee through Clause 10, which dealt with extra-territorial jurisdiction. The provisions of the clause were in line with the Sexual Offences Amendment Act.
Mr Holomisa asked if the victim of the crime had to be a South African citizen.
Ms Stuurman replied that foreign nationals would be prosecuted if the crime was committed on South African soil, regardless of the nationality of the victim. If the victim was a South African citizen and the perpetrator was a foreign national, the perpetrator could be extradited to
Mr Jeffery queried the inclusion of Clause 10 (5), which applied the principle of double jeopardy to the conduct of the perpetrator. He was concerned that a person acquitted of a lesser charge in another country could not be prosecuted in this country. Double jeopardy was a recognised principle in law and he wondered if the inclusion of the provision had any merit.
Ms Stuurman said that Clause 10 (5) could either be removed or amended to read ‘offence’ instead of ‘conduct which formed the basis of an offence’.
Mr Bassett was not sure if the principle applied internationally or only to domestic prosecutions. The National Director of Public Prosecutions (NDPP) had to authorise prosecutions instituted in terms of this clause. He had no objection to the removal of sub-clause (5).
Mr S Swart (ACDP) asked if the powers of the NDPP in terms of Clause 10 (6) could be delegated to the provincial prosecuting authorities to lessen the burden on the NDPP.
Mr Bassett pointed out that the provisions of sub-clause (4) had to be read in conjunction with (6). Mr Swart’s suggestion would be considered.
Ms Stuurman referred the Committee to the amended Clause 11, which dealt with the factors to be considered in sentencing. The Committee had suggested during earlier deliberations on the Bill that the factors were included in the applicable Regulations.
Mr Swart said that the factors should be in the Act rather than in the Regulations. The legislation dealt with offences of a serious nature and the Bill had to give guidance to the Courts.
Mr Jeffery reversed his previous suggestion that the factors should be listed in the Regulations. He suggested that the relationship between the perpetrator and a disabled victim was included as a factor.
Mr Holomisa agreed that the intention of the clause was to provide guidance to the Courts but felt that the Court should be allowed to apply its discretion as well. The provision was somewhat one-sided as the Court would take any aggravating or mitigating circumstances into account during sentencing.
Mr Swart noted that other pieces of legislation included clear guidelines, for example the Child Justice Act. The Court cannot be bound to only consider the factors listed in Clause 11 but the provision indicated the serious nature of the offence.
Mr Jeffery reiterated his concern over the relatively lenient sentences passed by the Courts. He cited a number of recent cases where fairly light sentences were imposed, many of which were suspended. It appeared that fines rather than terms of imprisonment were imposed. If the Bill excluded minimum sentence provisions then Clause 11 had to be included.
Mr Bassett conceded that Mr Holomisa had made a valid point. The Bill dealt with a new offence and had to provide guidance to the Courts.
Ms Williams pointed out that Clause 11 included the phrase ‘but not limited to’, which allowed the Court to impose higher sentences. The independence of the judiciary was taken into consideration. The provision was intended to deal with the problem of inconsistencies in the sentences handed down by the Courts.
Mr Bassett was not sure if the Palermo Protocol made any recommendations in this regard.
Ms Stuurman advised that Clause 11 was discussed with the NPA, who strongly recommended that the aggravating factors were listed in the Act rather than in the Regulations. Other clauses in the Bill placed an obligation on persons to report incidents of trafficking and the failure to report was made an offence. She suggested that the clause was reviewed to exclude the offence of failure to report.
Ms Stuurman took the Committee through Clause 12, which dealt with the reporting and referral of a child victim of trafficking. The submission received from the South African Police Services (SAPS) had suggested that ‘psychologist’ was included in the list of persons in Clause 12 (1).
Mr Jeffery agreed that a psychologist should be included. He noted that the persons listed in the clause were protected from civil liability.
Mr M George (COPE) asked if the Department had considered imposing penalties if members of SAPS failed to implement the legislation.
Prof Ndabandaba suggested that criminologists and penologists were included in the list of persons under Clause 12 (1).
Ms Schäfer remarked that the failure of SAPS to implement legislation was a matter of management and including penalties in legislation had been ineffective. Members of SAPS had an obligation to uphold the law.
Mr Holomisa asked what the difference was between the persons listed in sub-clause (1) and in sub-clause (2). He wondered if the list of persons should include public servants, Local Government Councilors and Members of Parliament who could become aware of trafficking offences in the course of carrying out their duties. He asked why a distinction was drawn between a ‘traditional health practitioner’ and a ‘traditional healer’.
Mr Jeffery pointed out that certain professions were governed by a Code of Conduct, which placed an obligation on the members of the profession to maintain client or patient confidentiality. He does not recommend that the Bill followed the same route as the Domestic Violence Act, which required extensive civilian monitoring. He suggested that sub-clause (1) was amended to include persons who were exempted from the obligation to report because they were subject to confidentiality in terms of any law, code of conduct or policy and that sub-clause (2) covered any other person. Such an amendment would remove the need for an exhaustive list.
Ms Stuurman agreed to Mr Jeffery’s suggestion.
Mr Bassett recalled that lawyers were excluded from the list for reason of attorney/client privilege.
Mr Jeffery thought that lawyers were unlikely to have access to information involving trafficking or have victims of trafficking as clients.
Ms Schäfer remarked that the same argument applied to medical practitioners, who were subject to doctor/patient confidentiality.
Ms Williams explained that lawyers were excluded because the attorney/client privilege had to be protected.
Ms Stuurman mentioned that several submissions had included recommendations that the list of persons needed to be complete.
Ms Schäfer said that it was conceivable that persons involved in trafficking could be a client of an attorney. She agreed that lawyers should be exempted from the obligation to report. She suggested that any changes to the clause were carefully considered.
Mr Jeffery reiterated his suggestion that the clause was re-phrased to refer to persons in a more general manner and that specific exemptions such as attorneys and lawyers were listed. He suggested that doctors were not exempted from the obligation to report.
Ms Williams pointed out that only the attorney/client privilege was specified in legislation and the other professions were subject to codes of conduct.
Mr Holomisa asked why traditional leaders were included in the list but Members of Parliament were not.
Ms Stuurman explained that traditional leaders were included because of their high standing in the community and were more likely to be aware of trafficking offences. In the submission received from SAPS, the police requested that the Bill allowed SAPS the power to forcibly enter premises to rescue victims of trafficking without the need to first obtain a warrant. She read the recommendation from SAPS, which would apply to both Clauses 12 and 13.
Mr Swart asked if the powers afforded to SAPS in such circumstances were not covered in the Criminal Procedure Act.
Mr Jeffery observed that there could be circumstances that a victim had to be rescued urgently if there were fears that the victim could be moved. In such cases, it might take too long to first obtain a warrant. He was concerned that existing legislation did not make adequate provision. The relevant section in the Criminal Procedure Act and the recommendation made by SAPS had to be considered.
Mr Bassett advised that the Criminal Procedure Act distinguished between premises and private dwellings and required that the permission of the owner of a private dwelling had to be obtained before the police could enter the building.
Ms Stuurman took the committee through the amended version of Clause 13. The clause dealt with the reporting and referral of adult victims of trafficking. Sub-clause (1) would be amended in line with the earlier discussions on Clause 12 (1). Many objections were received concerning the provision in Clause 13 (1) (b) that required the written consent of the victim for a person listed in the sub-clause to report the crime. The reason for including the provision was that the persons listed were subject to Codes of Conduct. The need for the requirement was doubtful as anybody could report the crime in terms of sub-clause (2). SAPS had suggested that the word ‘refer’ in sub-clause (4) was replaced by ‘notify’. The Department had discussed the provisions related to the referral of victims to a place of safety with SAPS and would prefer that the police transported the victim to the facility instead. The submissions included objections to the issuing of a certificate to victim in terms of sub-clause (7) as it was felt that the victim would be stigmatised. The certificate provided formal recognition of the victim’s status and the provision was in line with the Refugees Act.
Ms Schäfer pointed out that victims of trafficking were likely to be intimidated. She said that the requirement for written consent from the victim before the crime could be reported was stupid. She asked if there was any penalty if the victim’s identity was not kept confidential by the police in accordance with sub-clause (3) (c). She agreed that victims needed to be accompanied to places of safety but was reluctant to place an additional burden on SAPS. She asked if the organisation responsible for the place of safety could be required to fetch victims from the police station.
Mr Swart agreed that the requirement for written consent was undesirable. He asked who would issue the certificate referred to in sub-clause (7) (a). He asked if the witness protection program of the NPA played any role.
Prof Ndabandaba agreed that the certification of victims might result in placing the victim in further jeopardy.
Mr Jeffery pointed out that victims were entitled to certain resources and support services and there should be some form of recognition of bona fide victims to avoid abuse of the system. He was concerned over the requirement for the written consent of the victim and the unintended consequences of criminalising the failure to report trafficking. The clause made no provision for victims to appeal to the Department to revise their status. No provision was made for the withdrawal of victim status either. He wondered if it would be better if victims were dealt with by Non-Governmental Organisations (NGO’s) if the number of victims was small. There might not be any accredited organisations to offer places of safety in the smaller towns.
The Chairperson asked if victims were likely to give written consent given their state of mind at the time.
Ms Stuurman agreed that victims were likely to be too traumatised and intimidated to provide written consent for the crime to be reported. Alternative provisions would be drafter for further discussion. It was not an offence if a police officer revealed the identity of a victim and the relevant provision required further consideration. SAPS were reluctant to provide transport to places of safety for victims and the Department was engaged in discussion with the Department of Social Development on the issue. The NPA had suggested that the assessment of the status of the victim was done by the Department of Social Development. The witness protection program was only available if the victim was prepared to testify in Court. She agreed that no provision was made to withdraw victim status and to review the clause.
Mr Jeffery suggested that the requirement for written consent from the victim was omitted as it was unlikely that it would be obtained. He was opposed to criminalising the failure to report by persons who had to adhere to confidentiality clauses in Codes of Conduct. People should not be forced to report. There were a number of NGO’s providing assistance to victims but victims would be reluctant to approach the NGO if they would be reported to the police.
Ms Stuurman agreed to draft alternative provisions for discussion. She proceeded with Clause 14, which dealt with child victims of trafficking found in the country. The comments received pointed to an apparent contradiction with Clause 12 concerning the reporting to a social worker or to a police officer. Sub-clause (4) was added to provide for a foreign child to apply for temporary residence and refugee status if the child cannot be returned to his country of origin.
Ms Schäfer asked who had the obligation to assist child victims. She queried the use of the word ‘may’ in sub-clause (1) (b) as there was no alternative to ‘safe care’.
Ms Stuurman agreed that the responsible authority had to be specified in the provisions. The clause was in line with the provisions in the Children’s Act. The deletion of sub-clause (1) had to be considered as the matter was already covered by the Children’s Act.
Ms Schäfer agreed that the sub-clause could be deleted if adequate provision to provide shelter to child victims were included in the Children’s Act.
Mr Jeffery asked who determined that a child was in fact a victim of trafficking.
Ms Stuurman agreed that the word ‘suspected’ had to be inserted. She asked the Committee to comment on the new sub-clause (4).
Ms Schäfer asked what the implications were if child victims applied for refugee status.
Ms Stuurman replied that the issue was included in the discussions with the Department of Home Affairs.
Mr Jeffery was of the opinion that if a victim could not be returned to the country of origin, the victim would be a refugee. The UN imposed different requirements for refugees.
Ms Stuurman took the Committee through Clause 15, which made provision for health care services to victims of trafficking. The submissions included recommendations to include a number of additional services, which raised the question about what services were available to other victims of crime. The issue had to be discussed further with the Department of Health as there were cost implications in providing health care services.
Ms Schäfer asked if the health care services would only be made available to certified victims. She asked if any emergency care would be available.
Mr Swart pointed out that victims were entitled to health care in terms of the Constitution. He cautioned against including too many benefits.
Mr Jeffery suggested that the provisions should be included in Clause 6. He understood that the Palermo Protocol required countries to consider providing health care services. He was concerned over the potential for the abuse of such services.
Ms Stuurman replied that illegal foreigners had the right to health care but found it difficult to access.
Mr Jeffery and Ms Schäfer thought that the issue of health care to illegal foreigners had to be dealt with in the Immigration Act and the Refugees Act.
Ms Stuurman agreed. She proceeded with Clause 16, which dealt with the prohibition of criminal prosecution against a victim of trafficking. She referred the Committee to the amended provisions proposed by the Department under sub-clauses (1) and (2) and the new sub-clause (4).
Mr Swart said that the amended provisions to Clause 16 were an improvement. He suggested that the prosecuting authority in sub-clause (4) should be the Director of Public Prosecutions (DPP) and not the NDPP. He questioned the word ‘situation’ used in the clause. Compulsion was a defence but he was concerned over the potential for abuse. He queried the provision concerning the decision to prosecute.
The Chairperson thanked the Department for the input provided and advised that the Committee would continue deliberations on the Bill.
The meeting was adjourned.
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