The Committee interacted with the stakeholder departments responsible for the implementation of the Prevention and Combating of Trafficking in Persons Bill. It was particularly keen on receiving and analyzing statistics provided by the departments to ascertain the extent of the trafficking phenomenon in South Africa.
The National Prosecuting Authority said there were currently 15 cases on the court roll and seven cases under investigation. Details and sentencing of recently finalised cases were provided as well. The Integrated Case Management System was already in place and had been piloted in certain areas. It tracked cases from registration to finalisation and sexual offences as per the Sexual Offences Act were incorporated into it. It did not cater for trafficking yet as the legislation had not been promulgated.
The Hawks reported there were 25 cases in 2008/09; 24 cases in 2009/10 and 16 cases for 2010/11 so far. There were 12 cases this year under the Children’s Act but none for the previous year. There were delays where trans-border trafficking was involved and there would be costs for some of the operations to be performed successfully.
The Department of Social Development reported its provincial offices had worked with 98 victims of trafficking. Mpumalanga had the highest figures followed by North West. The staff at the 13 shelters reported that 73 alleged victims were accommodated in shelters: 21 alleged victims were in-country trafficking and 52 were foreign victims. Of the foreigners, 23 victims were from Thailand, 8 from Malawi, 7 from Lesotho, 5 from China, 4 from Argentina, 2 from Mozambique, 1 from Congo, 1 from Zambia and 1 from Swaziland. Four child victims were accommodated in the North West.
The Committee was disappointed with the statistics as there was a lack of synchronisation in the information provided by the Directorate of Priority Crime Investigation, the National Prosecuting Authority and the Department of Justice. The Committee felt that the Department of Justice should have taken the initiative as leading department to coordinate the information from the different stakeholders. The Committee insisted that an official should be present who could interpret the data from the Integrated Case Management System as the Committee was interested in the number of cases not the number of charges per case.
National Prosecuting Authority (NPA) Statistics as at November 2010
Adv Anthea Van der Byl from NPA: Organised Crime said the NPA had been instructed by the National Director of Public Prosecutions (NDPP) to collect data on crimes involving human trafficking in March 2010.Data was collected manually as there was no electronic database yet. The Sexual Offences Act of 2007, Criminal Law Amendment Act 32 of 2007 and the Children’s Act 38 of 2005 were some of the legislation that was used to prosecute perpetrators. There were currently 15 cases on the court roll. Four cases were from Gauteng South; Gauteng North had two cases; KwaZulu Natal had two cases; Western Cape had four cases; Eastern Cape had two cases and the Free State had one case. There were a total of seven cases under investigation. Gauteng South had four cases under investigation; KwaZulu Natal had two cases and the Free State had one case. The KwaZulu Natal case was due in court in January 2011. The accused operated a brothel at a club recruiting Thailand nationals as prostitutes. The victims were placed under debt bondage and had their travel documents confiscated. When their debt was paid off they were moved to another brothel in Pinetown where they continued working.
The State vs Amien Andrews case in Cape Town was finalised and the accused was sentenced to 17 years in prison for kidnapping, assault, indecent assault and rape. In S vs Maswanganye the perpetrator received a five year suspended sentence according to s276 (1)(i) of the Criminal Procedure Act for kidnapping, running a brothel and soliciting girls for carnal intercourse. In S vs Wiphatawaithaya the perpetrators received a fine and a suspended sentence for committing commercial sexual exploitation according to the Sexual Offences Act 23 of 1957. In S vs Sawatkan & Others the perpetrators received a fine and a suspended sentence for prostitution in accordance with the Sexual Offences Act 23 of 1957. In S vs Eloff & Another the accused were charged according to the Sexual Offences Act of 2007 and received suspended prison terms.In S vs Sayed and Another the prosecutor had to use racketeering, as the new Sexual Offences Act had not yet been promulgated. The old Sexual Offences Act and the Immigration Act were also used as legislation to convict the accused in cases.
Mr S Swart (ACDP) said that the Committee was trying to understand the nature of the problem and referred to a document received a while back by the Committee. In S vs Patel the accused received a five year prison sentence of which three years were suspended despite 18 cases of prostitution involving 89 victims who were adults and minors. This was the sort of specific data that the Committee needed. There did not seem to be any labour cases. Was the NPA aware of any? Were there any cases where the NPA was aware of South Africa’s ports of entry being used for trafficking?
Mr J Jeffery (ANC) was disappointed with the NPA as they were the one body that had a special unit dedicated to dealing with trafficking and yet the Committee was given hodge podge statistics. The document presented had not been even handed out to the Committee. Adv Van der Byl has been at the meetings and was aware of how the Committee operated. One was still clueless as to the state of the cases involving human trafficking. This was disappointing. There were statistics from the Directorate of Priority Crime Investigation (Hawks), Department of Justice and Constitutional Development (DOJ&CD) and the NPA and it was not clear if there was synchronisation. One would have expected the criminal justice system to provide authoritative statistics. The document from yesterday was all mixed up and all over the place. Were these trafficking or prostitution cases that had just been presented? Was there any evidence in the Eloff case that the women involved were trafficked? The case studies indicated that the sentences were very low. What case number was the Dos Santos case? The cause of the confusion was that the Committee was receiving different documents from various sources.
Mr Ndabandaba (ANC) asked why Thai nationals featured prominently in trafficking cases. What would be the estimation of cases not yet detected through the system?
Adv Van der Byl replied that data including labour exploitation was requested and only cases involving sexual offences came up. For cross-border crimes, the information provided was all that the NPA could come up with. In the Dos Santos case the victim was trafficked across the border between South Africa and Mozambique. The statistics were for November but the case analysis study was for October. The Eloff case was an example of in-country trafficking.
Adv Thoko Majokweni, Special Director of Public Prosecutions, Sexual Offences and Community Affairs (SOCA), said it was difficult to get statistics for these types of crimes. One might find that a judge looks at a trafficking case and treats it as a prostitution case. Awareness had been raised amongst prosecutors to look out for trafficking cases but awareness also had to be raised with magistrates and presiding officers. The NPA could go back and clean the data and look for what was being unraveled via an inspection of the case dockets. There was a dearth of prosecutions where labour exploitation was involved. The system had to be reinforced so that it was better able to handle these cases.
Mr Swart asked what the NPA was doing with the heavily criticised report of the Human Sciences Research Council (HSRC) on human trafficking.
Adv Majokweni said that the NPA had requested the HSRC in the first place to conduct an investigation into human trafficking to determine the extent of the phenomenon and assist the Committee in terms of data. The NPA did not receive the quantitative data that it had really needed. The report did not really reveal much. The NPA did not have funds to engage further with the HSRC. The Information Management System of the Thutuzela Centres had been structured in such a way that it would address the gaps discovered during the data collection of this exercise.
Mr Swart commented that the departments should bear in mind that the Committee wanted to know if there was communication amongst the departments about their individual statistics so that everybody was on the same page. The allocation of money for resources depended on the data.
Adv Majokweni said that the departments did communicate with each other but the data was not linked.
Mr Jeffery expressed concern that having received all the documents it was difficult to understand the figures. The HSRC report was in March, the NPA said that there was a problem with data, it was now November and it was unclear why nothing was done between now and then. The figures from the NPA did not match. The figures for Gauteng South went down from four to three as one turned the page. There were 15 cases on the roll according to the NPA and 20 from the Department of Justice and Constitutional Development (DOJ&CD) in the last two years. One would have expected a joint meeting with the various bodies within the criminal justice system on this matter of statistics.
Adv Majokweni said that there had to be an alignment between the departments.
Adv Van der Byl replied that she had received an email from the Portfolio Committee researcher and had forwarded the final statistics to her. There was a misunderstanding as the impression was that she would distribute the documents at the meeting. She apologised for this.
Adv Majokweni said that the discrepancies in data between the NPA and DOJ&CD was because the NPA had manual data whilst the Department had electronic data and the cases must have been lost during the communication process between the two of them.
Mr Jeffery asked if there were five cases analysed and over what period.
Adv Van der Byl replied in the affirmative.
Mr Jeffery said that researcher worked for Parliament and it was not clear why the NPA had to communicate with her in order to talk to the Department of Justice. This was all confusing. Why was one case lost from Gauteng South, the figures decreased from four to three as one turned the page?
Adv Van der Byl replied that this was a typing error and there were four cases on the roll.
Mr Jeffery said that the DOJ&CD figures should be the most accurate as they were from the Integrated Case Management System (ICMS), who ran this system?
Adv Van der Byl of the NPA replied that she was running the system.
Mr Jeffery then asked how DOJ&CD could come up with different statistics having read these from the NPA’s database?
Ms Van der Byl said that the DOJ&CD should answer, as she was not aware of the 20 completed cases.
Ms D Schaefer (DA) asked with what the ICMS was integrated. It was supposed to have been implemented 12 years ago and it was clearly not functioning properly.
Ms Van der Byl replied that it was not an integrated system. The statistics were being kept by the NPA on instructions from the NDPP as from June 2010. The statistics were provided to the Department of Justice for their costing report.
Ms Kamogele Lekubu-Wilderson, Director for Victim Support and Specialist Services: DOJ&CD, said that there was a request for statistics relating to the Sexual Offences Act and drawn from the ICMS to be presented to the Committee. The integration was in the form of the collection of the cases from the magistrates desk by the clerk of the court and entered into the database. The Department of Justice had not been given an opportunity to present the statistics and highlight the gaps as opposed to responding in the way that they were now.
Ms Schaefer commented that it has been quite clear for a while now that the statistics were not forthcoming or reliable. Could there be another presentation focusing specifically on the ICMS.
Mr Jeffery said that he was not sure if the Committee would get anything different from the ICMS. It was a problem that the records form the clerk of the court did not correlate with the NPA’s record. The reliability of the statistics from the Department were questionable.
Mr Swart suggested that the Hawks, NPA and DOJ&CD should get together and come up with reliable statistics. He agreed with Mr Jeffery there had to be reliable statistics, as the Committee needed them for the allocation of resources so it was for departments’ own benefit. How many cases had been withdrawn, this also had to be provided.
Ms Lekubu-Wilderson said that the data could not be integrated. The first problem was that outside of the Sexual Offences Act and Children’s Act there was no offence of trafficking. DOJ&CD realized that it had to go the extra mile to determine the extent of trafficking. Currently the data collection process was being closely monitored so as to execute a proper data analysis comparison.
Mr Jeffery said that the problem was that the Committee was told yesterday that the ICMS was working and that statistics would be provided. The Committee was aware that there was a problem with a definition of trafficking at the moment but the statistics from cases involving the Sexual Offences Act should have been provided. DOJ&CD should collect statistics so as to determine the amount of money that the needed, it was not clear how the Committee could have been given any costing; the costing was basically a thumb suck. The statistics provided by the Department of Justice could be a duplication as the charges were under section 71(2) and section 71(1) of the Sexual Offences Act.
Adv Majokweni said that this was similar to the Sexual Offences Act where at its inception the sentences were low. There was still a lack of understanding about trafficking and impact thereof.
Ms Schaefer asked how many appeals had been taken up by the NPA.
Adv Van der Byl replied that there were no appeals. The sentence was low in the Eloff case because the victims did not want to continue with the case and testify.
Ms Nolwandle Qaba, Project Manager: SOCA Unit: NPA, said that she had criticised the sentencing in the S v Mashangane case during a presentation to the International Association of Women’s Judges.
Mr Jeffery asked in which cases was there plea-bargaining.
Adv Van der Byl replied there was plea-bargaining in Patel, Eloff and another and Wiphatawaithaya.
Mr Jeffery suggested that the Committee should receive an analysis where there was plea-bargaining.
Adv Majokweni said that this would be provided but not today.
Registered Cases of Trafficking in Persons for Sexual Purposes: DOJ&CD
Ms Praise Kambula, Chief Director: Promotion of Rights and Vulnerable Groups: DOJ&CD, said that the ICMS was already in place and was piloted in certain areas. The ICMS tracked cases from registration to finalisation. The ICMS had also incorporated the sexual offences as per the Sexual Offences Act. There were efforts to implement the system. As it was a pilot, it was under revision so that it could be perfected. The ICMS did not cater for trafficking as it was in legislation that had not been promulgated yet. Clerks of the court were still being trained on how to capture the information and input the data in the DOJ&CD system. The cases noted in the presentation were the registered cases from the time of the implementation of the Sexual Offences Act. The finalised and withdrawn cases were excluded from the figures presented. The registered cases were 15 and the finalised cases were 5 as already mentioned by the NPA; these figures were also part of the total figure.
Mr Jeffery objected to the presentation. The Committee had requested statistics during an October meeting. DOJ&CD as the leading department should have coordinated the process with all the other stakeholder departments. The officials should have done their jobs and provided the information to the Committee and this was outrageous. Ms Kambula had assured the Committee that the ICMS could produce data relating to the Sexual Offences Act, but these figures were not for the number of registered cases. These were in fact representing the number of charges. For example, Mpumalanga was one case with probably six charges. Receiving information on the number of charges did not help the Committee.
Ms Kambula replied that the division responsible for the ICMS was the author responsible for the data provided. The ICMS division would be best placed to respond to questions and give an analysis of the data.
Mr Jeffery asked if Ms Kambula was not sure if there were 20 registered cases or whether it was a lot less than that and these were in fact charges.
Ms Kambula replied that it would depend on the interpretation that Mr Jeffery would provide for registered cases. The cases provided were registered and came through the system under the specific sections of the Sexual Offences Act. Mr Jeffery may be correct but the answers would be provided later.
Mr Jeffery said that it was clear Ms Kambula did not know. There should not be a dispute between cases versus charges.
Ms Kambula said that there were persons who dealt with the cases and to have them present would omit all the presumptions.
Ms Schafer asked that in future the officials who did not know how to interpret information should bring those who did know so that there would be no postponements of meetings. If officials did not know how to work with the ICMS then they should bring along somebody who did.
Ms Kambula said that had the Department had the opportunity to bring the officials responsible for the ICMS, they would have done so.
The Chairperson said that it would have been better for the Department to ask for a postponement until they were ready.
Extent of Human Trafficking in South Africa: presentation by Hawks
Mr Ebrahim Kadwa, Acting Head of the Organised Crime Investigation: Hawks, said trafficking was a new phenomenon. There was limited factual data and most would be based on experiences. As time went by there would be better statistics available. Women in the sex industry were recruited as second-wave traffickers. Trafficking occurred mostly in affluent countries where there was a demand. There was a blurring of lines between human trafficking and human smuggling. Domestic trafficking was being detected more frequently especially from the Eastern Cape and Lesotho. The victims were normally recruited under false pretences and promised non-existent jobs. Prostitution should not be seen in isolation nor women working in strip clubs and brothels. Debt bondage was a rising issue especially in developing towns as opposed to the cities. The biggest problem was the fear factor amongst the victims who did not cooperate with the police; this was the case in massage parlors and sauna places.
The Sakie, Hoola Hoop and Lookout cases were all handled by the Eastern Cape organised crime unit. There were 25 cases in 2008/09; 24 cases in 2009/10 and 16 cases for 2010/11 so far. Under the Children’s Act there were 12 cases for this year, none for the previous year. There were delays where trans border trafficking was involved. There would be costs for some of the operations to be performed successfully.
Mr Ndabandaba asked if there had been any correlations between human trafficking and illegal mining.
Mr Jeffery asked if the figures on slide 25 referred to dockets or charges. Was there somebody who was working with the NPA in terms of data collection? Was there a link between the police and labour inspectors for the purpose of detecting labour trafficking? Was there any evidence that South Africa was a transit country?
Ms Schaefer asked how many of the figures for 2007 were international trafficking cases. Did the Hawks conduct any pro-active investigations on human trafficking? It did not seem like there was a huge number of cases. According to the Bill the consent of adult victims had to be obtained before the fact that they had been trafficked could be reported, how problematic was it for the police to get victims to consent?
Mr Kadwa replied that the cases conducted by the Hawks were done pro actively. Human trafficking did exist and it was a growing problem, more knowledge and expertise was needed however. The issue of consent was a messy one. Each case had to be taken on its own merits however. The whole issue of illicit mining was being dealt with but it was a growing concern. For the purposes of trafficking there had been no comparative analysis between the NPA and the Hawks. The International Organisation for Migration (IOM) was the authoritative body that laid the platform on trafficking in the country. Thai and Chinese nationals were operating in the airports despite intensive police interventions.
Mr Swart asked how many cases were withdrawn due to uncooperative witnesses. More had to be done on the monitoring of the border posts. Did the Hawks have projects to curb police and Home Affairs officials’ collusion with perpetrators of trafficking? The Hawks would require more resources.
Mr Ndabandaba asked why Swaziland was not mentioned in the presentation.
Mr Kadwa replied that there were a lot of dynamics involved in withdrawn cases. Border post corruption was one of the cancerous issues in general. The Hawks had targeted Home Affairs and border post officials.
Mr Chris de Kock, Major General of the South African Police Services (SAPS) Crime Intelligence explained to the Committee that crime statistics were generated via a crime incident being reported. A case docket would be opened including the statements. A person in the station would then report on which crimes were committed based on the statements collected. Each person that dies in a crime incident would be considered as a count for example. The crimes committed and counts per incident would then be registered on the crime administration system. The Sexual Offences Act was a new form of legislation. Mistakes could occur in the registration of crimes and the Bill could compound the problem for example how a case of human trafficking could be registered as the police could arrest the clients, sex workers and owners of clubs and brothels; the main question would be under what these arrests would be registered. The fact that trafficking was hidden also made the crime complicated especially when there was labour exploitation involved. Proper and thorough debriefing of the sex workers would be necessary to establish whether they were victims or perpetrators. Counts were complicated in sexual offences matters, for example when ascertaining counts for gang rape, did one consider the number of perpetrators, victims or number of penetrations because strictly speaking according to the law each penetration should be considered as rape. There was no way that one could have 100% full proof statistics of rape.
Mr Jeffery said that there should be more interaction between the criminal justice departments, as it seemed like the sentences were too light and did not discourage trafficking. Did the Hawks interact regularly with the Department of Social Development (DSD)?
Mr Kadwa replied that the Hawks did not request states from DSD, but this was an important consideration. It should be kept in mind that there was no proviso for the Hawks to obtain statistics from DSD and even with the advent of the new law; it would not change a situation where a victim wanted to go home for example.
Mr Jeffery suggested that the Hawks should make additional comments on the Bill as there were parts of it that affected them only.
Mr Kadwa said that the legal services team had already done that.
Presentation: Department of Social Development Additional Information on the Implementation Plan
Ms Joan Groenewald presented to the Committee that the statistics were from January to April. The provincial offices reported that they had worked with 98 victims of trafficking during this period. Mpumalanga had the highest figures followed by the North West province. The information management tool had been developed in April 2010 and was based on the requirements of the Bill. The staff at the 13 shelters reported that 73 alleged victims were accommodated in the shelters. The shelters were run by Non-Governmental Organisations and the centers were run by government. 4 Child victims were accommodated in the North-West province. 21 Alleged victims were in-country trafficking and 52 were foreign victims. 23 Victims were from Thailand, 8 from Malawi, 7 from Lesotho, 5 from China, 4 from Argentina, 2 from Mozambique, 1 from Congo, 1 from Zambia and 1 from Swaziland. The three victims in the Eastern Cape shelters had been there for over a year as they were witnesses in a criminal trial.
Mr Jeffery asked on what basis were individuals regarded as alleged victims of human trafficking. Were the shelters provided with guidelines of what an alleged victim of trafficking would be? Were there details available as to the costs involved in keeping victim at the shelters and how long did they stay? Has DSD shared any information with the police?
Ms Groenewald replied that the staff at the shelters were oriented and given in depth training on how to identify an alleged victim of trafficking. In the assessment tool there were questions around the recruitment phase, transportation and exploitation phase. It took time for victims to be identified due to the language barriers, fear factor and medical situation of some victims. The unit cost per day was R160. Victims resided t shelters for about three to four weeks especially where the IOM was involved. Those victims who were witnesses resided for up to a year in shelters. The departments responsible for the Bill were still working in isolation in certain instances.
Mr Jeffery asked if there was any distinction between women in the shelters and other ordinary women.
Mr Swart asked how much did the IOM contribute.
Ms Groenewald replied that shelters were mainly for victims of domestic violence. However the 13 shelters were mainly for victims of trafficking. The shelters received a government subsidy for each victim per night.
The Chairperson suggested that IOM should be given an opportunity to present to the Committee as they seemed to be the experts in a lot of trafficking cases and worked with a number of departments.
The Committee agreed.
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