The National Prosecuting Authority (NPA) gave a detailed presentation on its proposals for changes to the Prevention and Combating of Trafficking in Persons Bill (the Bill), which were directed to bringing this Bill in line with the Criminal Law (Sexual Offences and Related Matters) Act (SOA), the Prevention of Organised Crime Act (POCA) and the sentencing legislation, as well as ensuring successful prosecutions. Specific proposals were made in relation to definitions of “socio-economic” (under vulnerability), “debt bondage” and “removal of body parts”, as well as various phrases within the definition of “trafficking”. Technical amendments to Clause 2, and the heading of Clause 16 were proposed. The NPA proposed that the content of Clause 3 should not be included in legislation, but rather in a policy framework or directives. Inconsistencies were highlighted in Clauses 4(1) and (2), and it believed that the same sanctions should apply to both, which must also be consistent with what was already stated in the SOA. A new subclause should be inserted into Clause 8 to cater also for a lessor who, subsequent to entering a lease, became aware that his property was being used for criminal activities. Clause 9 should be amended, to cater for internal carriers, and the sanctions under this clause should be raised, consistent with the SOA. The National Director of Public Prosecutions should retain the function of authorising prosecutions contemplated in Clause 10(6). The nature of the relationship between victim and perpetrator should be added as another consideration under Clause 11. Clause 16 should be altered by removal of sub-clause (1), renumbering, and the insertion of a new subclause incorporating the provisions of Section 71(5) of SOA. The NPA had some conceptual difficulties why this Bill should cater for victims of trafficking, to the exclusion of victims of other crime, and suggested a possible amendment to Section 300 of the Criminal Procedure Act. If this amendment was made, then Clauses 36(7)(g) and (h) would need to be amended. The NPA finally reported that since 2005, only 30 prosecutions for trafficking had either been completed or were ongoing.
Members sought clarity on Clause 9, pointing out that internal carriers would need to be included in a separate clause, and consideration must be given to whether knowledge of trafficking should be an element of the crime. Members discussed whether it was appropriate for the NPA to suggest wording for the amendments, but concluded that this would enable Members to understand what elements would need to be included to aid prosecutions, and noted that ultimately the Committee must decide whether to accept, reject or amend those suggestions. The drafters from the Department of Justice and the NPA would liaise on this. Members also sought clarification on Clause 16, interrogated the statistics, and asked also for further details around the prosecutions. Members discussed in principle whether the allocation of resources for victims would remove resources from other sectors, and, although they were cautious of over-regulation, pointed out that inclusion of timeframes and intersectorial groups did force procedures to be implemented, and assisted the Committee’s oversight. An IFP Member questioned perceptions of “vulnerability”, pointing out that if sex workers continued to be criminalised whilst victims of trafficking were not, many sex workers might claim to have been trafficked, and proposed that a solution may lie in de-criminalising sex work. The inclusion of extra-territorial jurisdiction was questioned, but the NPA explained that this, as well as the compensation provisions, were in line with the Palermo Protocol. A Member noted her concern that not enough awareness was created in rural women of their rights and the threat of trafficking, and urged that national policy frameworks and advocacy must be pursued with vigour. The Department of Justice drafters indicated briefly that they agreed with many of the suggestions but had some concerns about the proposal to amend Section 300 of the Criminal Procedure Act. They expanded on the possible options for intersectorial committees.
Prevention and Combating of Trafficking in Persons Bill: National Prosecuting Authority (NPA) briefing
Adv Pierre Smith, Deputy Director: Public Prosecutions, Sexual Offences and Community Affairs Unit (SOCA), National Prosecuting Authority, noted that on 17 November the National Prosecuting Authority (NPA) had requested a review of some provisions of the Prevention and Combating of Trafficking in Persons Bill (the Bill). The NPA held a round-table discussion in December, attended by NPA, members of the SOCA Unit and the Department of Justice and Constitutional Development (DOJ). Their input was combined in his presentation.
Adv Smith noted various proposals around Clause 1. The first related to the definition of “vulnerability”. It was suggested that the expression “socio-economic“ factors should be separated out to read “social and/or economic factors” to allow for cultural practices, even in the absence of economic factors, to be considered.
In relation to the definition of “debt bondage”, it was suggested that this was a separate offence from trafficking in persons, and should be removed from that definition. Debt bondage was included under “exploitation” already, and should remain there, since a victim could be kept under debt bondage and exploited.
In relation to the reference to “removal of body parts”, the NPA suggested that the word “sole” should be removed, so that a prosecutor would not have to prove purpose in relation to removal of organs. The removal of body parts might be catered for in the National Health or Human Tissue legislation.
The definition of “trafficking” was also discussed. The NPA pointed out that “sale and “delivery” were different actions and should be left as they were. Issues that the Kenyan definition did not include, but which would need further attention, were isolated. It was recommended that the definition of “lease” should be removed, since a person could not be leased. However, both “disposal” and “delivery” should remain, since disposal was not covered under delivery.
A new formulation was proposed for the phrase “a person trafficked or an immediate family member of the person trafficked”. There had been a suggestion that this phrase should be removed from subclauses (b) to (k) and only included under subclause (a). The NPA did not support this proposal and thought the original wording should be retained. In relation to this phrase, the NPA further suggested that “false pretences” should be removed, as covered under “fraud”. It recommended that the sub-clauses (j) and (k) should be
retained, as they focused on different aspects. The NPA agreed that the words from “sexual grooming or abuse” to “sexual act with such person” should be deleted, to avoid an over-emphasis on trafficking for sexual purposes. The last part of the definition should merely refer to “any form or manner of exploitation of such person”.
Adv Smith pointed out that Clause 2 referred to a national policy, and the word “draft” was inconsistent and should be removed.
Adv Smith noted that Clause 3 was quite contentious. NPA held the view that the content of this clause should not be legislation, but instead should be covered by directives or the policy framework, as it dealt with operational issues.
Adv Smith outlined the main elements on which the NPA would focus, in relation to Clauses 4(1) and 4(2). Unlawfulness and intention were relevant, although consent was not required because of Clauses 4(3)(a) and (b). NPA was concerned about the apparent discrepancies between Clauses 4(1) and 4(2). A sentence of life imprisonment was contemplated under Clause 4(1), but not under 4(2), which would suggest that the offence in the former was more serious. The NPA had compared this to Sections 71(1) and (2) of the Criminal Law (Sexual Offences and Related Matters) Act (SOA), which dealt with the same subject matter. Both of these SOA sections were on the same level, and he read out their wording in relation to sentencing. The NPA urged that there should be uniformity between SOA and this Bill. The courts would no doubt pick up on the disparity. NPA believed that the offences should be on par, and that both subclauses should refer to “imprisonment for life”.
Adv Smith then turned to Clause 8, dealing with conduct facilitating trafficking in persons. The NPA had no problem with Clause 8(1), but pointed out that there was a gap, because this referred only to arrangements made when the parties were aware of the purposes of the lease. Currently, the Bill did not cater for the situation where the parties, subsequent to entering the agreement, became aware of the purpose, but could not be prosecuted under Clause 8(1). NPA therefore suggested that the current Clause 8(b) should become 8(c) and that a new Clause 8(b) be inserted to deal with parties who, despite subsequently becoming aware of the purposes for which the property was used, nonetheless allowed the lease to continue. The NPA agreed with Clause 8(2)
Clause 9 related to liability of carriers, and concerned the removal of people who did not have a passport or valid travel documents. Firstly, the NPA was concerned that the current wording did not appear to cover internal carriers, and suggested that the clause must be rephrased to cover both internal and external carriers. Secondly, it recommended that the sanctions should be raised, to a R5 million fine and ten years imprisonment. Once again, he noted that this offence was similar to Section 51, read with Schedule 2, of the SOA, which outlined imprisonment of not less than ten years for a first offence, with heavier sentences for repeat offenders. The NPA had also had regard to the Adjustment of Fines Act 101 of 1991 and the Magistrates Court Act, Section 92(1)(b). He stressed that a court would not be obliged to apply the heaviest sentence.
Adv Smith noted that, in regard to Clause 10(6), the NPA believed that the National Director of Public Prosecutions (NDPP) should retain the authorisation function, which again would be consistent with SOA and the Prevention of Organised Crime Act (POCA)
The NPA had suggested, in relation to Clause 11, that an additional consideration of “the nature of the relationships between victim and perpetrator” should be added.
Adv Smith pointed out some anomalies in the heading to Clause 16. The use of the word “prohibited” appeared to give an instruction to the NPA, and he suggested that the heading should merely refer to “Criminal prosecution against victim of trafficking”. The NPA then thought that Clause 16(1) should be removed, and the wording contained in Clause 16(2), which related to the process, should be moved up and renumbered as subclause (1). A new Clause 16(2) should then set out what was included in Section 71(5) of SOA. He clarified that there were circumstances in which the NPA could prosecute a victim of trafficking, where the offence was not directly linked to the trafficking. Guidance on dealing with victims of trafficking was set out in SOA.
Adv Smith then noted that there had been much debate around compensation to victims. The NPA had some difficulty with Clauses 27 and 28, because they meant that this Bill would cater for victims of some crime, to the exclusion of victims of other crime. He suggested that it would be preferable to amend the clauses to bring the Bill in line with Section 300 of the Criminal Procedure Act (CPA), which focused on lost or damaged property, and possibly to extend that section. Another argument related to a criminal court effectively determining levels of damages. The asset forfeiture process already catered for compensation, and although the NPA was aware that there were some difficulties with this, he suggested that this might be the safest option to follow.
Adv Smith corrected a mistake in the hard copies, pointing out that the NPA agreed with the sentencing provisions set out in Clauses 4(1) - but not Clause 4(2) - 5, 6, 7, and 8(1)(3). It recommended that Clauses 9 and 4(2) should be amended.
Adv Smith then noted that the NPA had also looked at Clause 36(7), which was applicable to the NPA. Subclauses (a) to (d) and (f) were in line with the SOA. Subclause (e) was explanatory in nature and was also acceptable. However, if the NPA’s recommendation on compensation to victims was accepted, then subclauses (g) and (h) would need to be amended to fall in line with Section 300 of the CPA.
Adv Smith then outlined that the SOA was passed on 16 December 2007. That Act covered trafficking for sexual purposes. Despite the lapse of three years since its promulgation there had been very limited prosecutions under that section. The NPA was already examining the references to trafficking across other pieces of legislation. Between 2005 and the end of January 2011, there had been 30 cases of trafficking prosecuted, although he pointed out that there was some difference in the methodology used by the NPA and other departments to identify these issues. The NPA would, if the Bill were to be passed, need to provide statistics in relation to a number of trafficking offences, and it would have no problem in providing statistics on compensation, or submitting reports under Clause 36(8).
Mr J Jeffery (ANC) asked for more clarity on Clause 9, and the suggestion that internal carriers must be included. However, the elements of the crime included knowledge that the person being conveyed did not have a passport or visa, and thus were relevant only to cross-border carriers. It would make more sense to cater for internal carriers in a separate clause. The external carrier did not have to be aware that the person being conveyed was a victim of trafficking, merely that he or she was not in possession of the necessary travel documents.
Adv Smith agreed that ideally there should be a separate clause, but the NPA was concerned that internal carriers should be able to be prosecuted as well. Clause 4(2) could possibly be used to formulate a charge, if all elements were present, but if not then Clause 9 would have to be used.
Mr Jeffery suggested that the NPA should indicate to the Committee what elements of the crime should be included in the new clause.
Dr M Oriani-Ambrosini (IFP) was uncomfortable with this suggestion. The issue was canvassed more fully later in the meeting.
Mr Jeffery then asked for clarity on the proposed amendment of Clause 16.
Mr Jeffery said that there was another process in the Bill, where the power to determine whether a person was trafficked or not was being delegated to accredited organisations. He would be concerned with any removal of the power to determine whether there should be a prosecution from the NPA, and did not agree that the State should delegate a determination to an outside body. This was a different scenario to what was contained in subclause (2), and he agreed that it may be preferable to have another authority to determine whether a person had been trafficked. He thought that in certain circumstance the NPA should perhaps give strong consideration to whether it wished to prosecute, rather than actually preventing it from doing so.
Adv Smith took the point, and said that ideally this Bill should be line with the SOA. A victim who was merely aware of the commission of a crime should not be prosecuted. The NPA had suggested that other State authorities, who were in a position to determine the status of victims who possibly were trafficked, should submit their recommendations to the NPA. This would not take away the final discretion of the NPA whether to prosecute.
Mr Jeffery noted the comments about the statistics but was concerned because the NPA seemed to be suggesting that it was in effect not aware of how many people were being prosecuted for trafficking. Whilst it was possible for the NPA to devise its own systems of collecting information, it did not help when it suggested that these statistics may not be accurate.
Adv Smith took his point on statistics but clarified that on the methodology used by the NPA, 30 cases had been presented to date, including two under Section 71 of the SOA. The NPA knew that other departments used different methodology, and may differ in how trafficking was identified, and how many matters there were. Because this Bill had not yet been promulgated the concept and number of cases was “in limbo”. However, he could confirm the NPA’s statistics.
Mr Jeffery said that he had misunderstood the presentation. He asked for, and received confirmation that 30 cases had been prosecuted.
Adv Smith said that this was so. The methodology was quite detailed and the NPA could confirm the numbers categorically.
Adv Bronwyn Pithey, Deputy Director: Public Prosecutions, NPA, added that some of these 30 matters were still in progress.
Mr Jeffery said that it would also be useful to obtain more information on the numbers of convictions and withdrawals, whether acquittals were related to problems with the law or evidence, and, if so, whether these could be corrected by the Bill, as well as details of the sentences and whether these were considered correct and reasonable.
Ms D Schafer (DA) added that she would like detail on whether these cases involved one person or a group of people.
Mr Jeffery then made a point that was not covered in the submission. It was clear that the law needed to be tightened to make it easier to prosecute and obtain a conviction on trafficking. However, he was concerned that the Bill, in allocating State resources for victims of trafficking, was effectively taking such resources away from other people. He also enquired about the systems in place to deal with trafficking at SOCA. Experience with the Child Justice Act and SOA showed that new and considerable resources had to be found for implementation. The prosecution of sexual offences could still be improved. Although there had been a suggestion of an overarching intersectorial committee, he was still worried about the amount of regulation, and questioned whether the general provisions, national instructions and directives and administration required did not amount to over-regulation. Parliament wanted the NPA to be able to institute successful prosecutions.
Adv Smith said that there were currently separate intersectorial committees dealing with child justice and with sexual offences, and now another was proposed. The NPA agreed that ideally, there should be an umbrella body, under which different teams would deal with different pockets of operations, with responsibility to ensure measurement and monitoring of implementation by all the departments. His experience, from serving on the Intersectoral Committee on Child Justice, was that sometimes decisions taken by this committee might not link up with decisions by another committee. Whilst this was not a major challenge at present, it could become so in future.
Mr Jeffery added that the implementation of the Child Justice Bill had not been entirely satisfactory, pointing out that the NPA and other State agencies had fallen short of requirements, even though they were bound to time requirements, and perhaps it was necessary to regulate.
The Chairperson reminded Mr Jeffrey that the Child Justice Act implementation would be coming up for review.
Mr Jeffery agreed, and said that there would be some overlaps with this Bill. Whilst the Committee would not necessarily have to delay matters until April, it could be useful to get some reports on policy development components, some of which were similar.
Mr G Ndabandaba (ANC) asked whether the removal of “sole” in relation to the definition of body parts would not create problems around broad or restrictive interpretation.
Adv Smith said that the NPA was concerned that it may not be able to prove “sole” purpose but still wished to ensure that it would be able to prosecute.
Dr M Oriani Ambrosini (IFP) said that there seemed to be some difficulties in practical application. He noted that if the Bill were to be passed as currently worded, sex workers could also be prosecuted, although victims of trafficking were protected, and could even receive benefits from the State. The difference in these categories hinged on “vulnerability”. However, it must be remembered that physical or psychological abuse, and even socio-economic circumstances, could also result in vulnerability. The difference between the activities of a (potentially criminal) sex worker and (non-criminal) victim of trafficking lay in the perception of their position. The task of determining the status was likely to be given to a non-government organisation that would have a vested interest in identifying as many people as possible as victims of trafficking. One entity that had applied for accreditation had said that all sex workers were trafficked, and that they would not be sex workers if their socio-economic conditions were different. The distinction between these two categories could well result in many sex workers opting for “a retirement plan” of seeking a revised status. He believed that the solution would lie in de-criminalising sex work, and amending wording relating to the repeal of Section 13 of SOA.
Adv Smith agreed that this was a difficult issue. The NPA was an implementing agency. It had realised that a sex worker might also be a victim of trafficking, and although this was not a direct answer to Dr Oriani-Ambrosini’s question, this was as far as he could comment at present.
Dr Oriani-Ambrosini referred to a comment that the law was not always being enforced to the letter. He drew an analogy to the situation with refugees, pointing out that the passing of the refugee legislation resulted in South Africa taking in many illegal immigrants who became asylum seekers, resulting in the collapse of the system. Whilst he was aware that the NPA could not cover absolutely everything, an international treaty obliged
Dr Oriani-Ambrosini referred to the suggestion for the insertion of a new Clause 8(1)(b) and had a problem in principle with the notion that a citizen must become a law enforcer, as he believed an ordinary citizen had the right not to intervene to prevent commission of a crime.
Adv Smith clarified that the NPA wished to cover the existing loophole where a person might, when signing the lease, not be aware of the use to which that property would be put, but who did subsequently become aware of it. Similar provisions existed in POCA, where property leased allegedly for one purpose but used for criminal activities could be subject to forfeiture.
Dr Oriani-Ambrosini pointed out that Clause 9 contained an inconsistency. It dealt with carriers who illegally transported people across borders, knowing that they were not in possession of valid documents. He cited a hypothetical example of two carriers who might be doing exactly the same thing, whose passengers lacked the necessary documents and who shared an intention to transport illegally. One, however, might unknowingly be transporting a victim of trafficking, and would, under the current wording, be liable for a harsher sentence than the other, who happened not to be transporting trafficked passengers. This did not make sense.
Mr Jeffery noted that this was linked to his suggestions about the new crime of “internal trafficking”, and the same comment about knowledge of the trafficking would apply. He agreed that the cross-border trafficking provisions would need to be looked at again, to include the element of knowledge of the trafficking.
Adv Smith and his team agreed.
Dr Oriani-Ambrosini said he was suspicious of including extra-territorial jurisdiction, saying that he would consider it inappropriate to consider cultural issues if a foreign person was trafficked.
Adv Smith said that extra-territorial jurisdiction was included in many other pieces of legislation. It was also in line with the Palermo Protocol and the NPA believed that it was correctly placed.
Dr Oriani-Ambrosini wondered why it was necessary to have this Bill, in view of the other provisions to be found on trafficking in other pieces of legislation, particularly given that there were few prosecutions.
Adv Smith said that the most dominant reason was to ensure that there was one holistic piece of legislation that dealt with trafficking, rather than having provisions included in the Children’s Act, SOA, and POCA. The move to holistic legislation was also in line with the Palermo Protocol.
Dr Oriani-Ambrosini said that this Protocol merely created an obligation but had not required one specific piece of legislation. He wondered if the issues could not be dealt with in a guideline or unified consolidated text.
Ms S Shope-Sithole (ANC) noted that her question was of particular relevance to rural women. She was concerned about the comment that the content of Clause 3 should be in a national policy framework rather than legislation. She said that victims of trafficking tended to be rural women, who had little understanding of trafficking, and they should be assisted to understand and exercise their rights properly. She urged the Department to raise awareness, and wondered how binding responsibilities would be if they were not couched in legislation.
Adv Smith noted that public awareness was a vital issue for SOCA, whose five sections all bore responsibility for raising awareness. SOCA participated in relevant activities. NPA still believed that policy issues should not be included in legislation, but in national policy frameworks that placed responsibility on specific departments.
Ms Shope-Sithole countered that she would like to know who was responsible if this did not happen. She was not aware of the awareness-raising, and stressed that until this happened, the struggles to ensure safety for all women were being undermined.
Adv Smith said that Clause 39(1) required the Minister to ensure that the adoption of a national policy framework, a unified and coordinated approach, and enhancement of service delivery within available resources. The NPA would be involved in improving service delivery. An overarching body must ensure that the policy framework was drafted, and there was specific reference to public awareness that must be debated.
The Chairperson pointed out that this clause did not say that the Minister would have to address the women in the deep rural areas, merely that the Minister must see to the development of the policy framework. The Committee, therefore, would need to decide if these provisions were sufficient. He thought that the NPA must concentrate on successful prosecutions rather than visiting deep rural areas.
Ms Shope-Sithole confirmed that it was not important who created awareness, as long as it was created and promoted.
Mr Jeffery said it would be useful to get these amendments in writing, in the form of suggestion insertions to the Bill. It would also be useful to have someone remain in close contact with this Committee, so that the NPA was satisfied that the Bill could be properly implemented.
Mr Lawrence Bassett, Principal State Law Advisor, Department of Justice and Constitutional Development, confirmed that his Department had been involved in some of the preliminary issues. During a previous briefing on the status of various Bills, the Department had indicated that it was in the process of preparing working documents that included suggestions from the Committee, and the suggestions from the NPA could also be included. The Department agreed with a number of the issues raised by the NPA. In particular, it agreed with the comments on Clauses 4(1) and 4(2) and the drafters would attend to this.
Mr Bassett commented that Members had previously made the point that Clause 3, which Ms Shope-Sithole had queried, was probably incorrectly placed, and this would be moved near the end of the Bill.
Mr Bassett noted some concerns around the suggestion that Section 300 of the CPA might be amended. He understood why the recommendation was made, but noted that Adv Smith had identified a possible problem. Although
Mr Bassett also noted that the intersectorial committee considerations had previously been raised. It was difficult from a drafting point of view to establish an umbrella body under trafficking legislation that would also be dealing with sexual offences and child justice issues. One possible option was to amend all three pieces of legislation, to provide for a national policy, and then have regulations. The other option was to have something similar to the Children’s Act, which set out the need for coordination, but said that this must be achieved through a framework policy to be done. It would be quicker and easier to amend regulations rather than primary legislation.
Mr Bassett noted Mr Jeffery’s comment that the NPA should propose some amendments and undertook that the Department and NPA would engage on the wording.
Mr Jeffery clarified that he had hoped that the NPA would draft what it wanted, for comment by the Department’s drafters.
Dr Oriani-Ambrosini disagreed. Although he had no problem with the NPA outlining its views, he did not think that it was proper for it to submit policies, as the NPA should not have anything to do with legislation.
The Chairperson could not understand this objection, pointing out that the NPA would not be “imposing” its view, as ultimately this Committee had the responsibility to consider, and accept or reject the NPA’s proposals.
Mr Jeffery added that some of the provisions were quite complex and it was important from the Committee to hear what elements the NPA needed to include in order to implement the legislation properly. In particular, he had thought that Clause 9 needed more work.
The Chairperson asked the NPA to try to produce something for the Committee within the next two weeks. If more time was needed on Clause 9, then it could be requested.
Mr Bassett noted that the Committee still needed to deliberate on clauses, from Clause 17 to the end of the Bill, which could be done while the Committee awaited the draft from the NPA.
Mr Jeffery then commented further on regulation around a policy framework and implementation, saying that, ideally, none should be needed. However, he cited the instance of a specially-built Child Justice Centre in
Ms Shope-Sithole added that an American President had once commented that it was in the nature of human beings that they must be made to account.
The meting was adjourned.
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