Prevention and Combating of Trafficking in Persons Bill: International Association of Crimes against Children briefing; Protection from Harassment Bill: deliberations

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Justice and Correctional Services

22 February 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development received oral representation from the International Association of Crimes against Children for purposes of the Committee’s work on the Prevention and Combating of Trafficking in Persons Bill. The International Association of Crimes against Children shared its expertise and also proposed a cooperation agreement with South African law enforcement. The Association was present in 60 countries all over the world and had been in operation for almost 15 years. Trafficking was the third largest source of income for organised crime in the world and it was almost impossible to calculate actual figures because there was no access to adequate data and statistics, for example, in a country like South Africa. The Association gathered intelligence, and evidence to counter trafficking and the individuals behind it. The Association also targeted the demand side of child exploitation by tracking the activities of sex tourism operators and their clientele as well as the individuals physically preying on children. The Association was an independent organisation and was not the branch of any government or political entity. The Association operated under five distinct mandates: to gather the intelligence and evidence for the interdiction of organised crime rings and to catalyze existing laws in different countries (e.g. The Protect America Act 2007 [United States of America] and the United Kingdom’s Sexual Offences Act). The second mandate was facilitate the rescue, safety and rehabilitation of missing, exploited, enslaved and endangered children. The third mandate was to compile and disseminate imagery to assist and identify criminals involved in the trafficking of children. The fourth mandate was to play a proactive and dynamic role in raising awareness on the issue of child exploitation. The final mandate was to compile and disseminate empirical data.

The Committee was not satisfied that the Association had provided enough information as to its background despite that it was an undercover organisation. The Committee was also interested to know if the Association had any empirical data available or at the very least data from other jurisdictions in order to ascertain the true size of the phenomena. The Committee also posed questions relating to the knowledge that the Association possessed regarding trafficking in the country. The Committee was keen to know if the organisation had been reporting cases to law enforcement.  The Committee was not impressed that the Association had not read the Prevention and Combating of Trafficking in Persons Bill - which the Committee was currently dealing with - in order to provide assistance from a legislative perspective.

The second part of the meeting was a clause-by-clause deliberation on the Prevention from Harassment Bill. The words ‘harassing behaviour’ in the preamble were not consistent with harassment in the Bill. It was suggested that behaviour should be deleted and only harassment used. The new definitions inserted in the Bill accommodated comments received during public hearings and those requests made by the Committee. The new definitions inserted were: electronic communications identity number; electronic communications service licence; sexual harassment (included in definition of harassment); and harassment with intention.

The Committee was not satisfied that ‘harm’ in the Bill was defined properly. Clause 2(4) was flagged as a potential problem for children to use against their parents. The Committee was concerned about the manner and time frames that went with the serving of an order against a respondent.  It was foreseeable that there would be a flurry of applications for an extension from the police under clause 3B.  The Committee flagged the proposal from the Department that there should be less harsh punishment for non-compliance for an order by the police as opposed to the current provision under clause 15(1).

Meeting report

International Association of Crimes against Children: oral submission
Mr Brian Hovey, International Association of Crimes against Children, said that the International Association of Crimes Against Children (IACAC) was coming to South Africa to offer its help and expertise. The organisation was in 60 countries all over the world and had been in operation for almost 15 years. Trafficking was the third largest source of income for organised crime in the world. The trafficking of children was a large percentage of trafficking in general. It was estimated that more than 20 million children were enslaved or involved in prostitution. The figures were increasing by 1.2 million worldwide. This was a sensitive area. Last week in Johannesburg there were five girls that nobody knew about that had been enslaved. One of the girls had been kept in another room with a bunch of other girls and forced to have sexual relations with men six to seven times a day. This was happening all over the world. It was almost impossible to calculate actual figures because there was no access to adequate data and statistics for example in a country like South Africa. Recently there was an increase in the trafficking of young people for the purposes of organ transplants. The IACAC gathered intelligence, and evidence to counter trafficking and the individuals behind it. Traffickers were also involved in other criminal activities including intimidation, money laundering, identity theft, murder and corruption.  The IACAC also targeted the demand side of child exploitation by tracking the activities of sex tourism operators and their clientele as well as the individuals physically preying on children.

The IACAC was an independent organisation and was not the branch of any government or political entity. The IACAC operated under five distinct mandates: to gather the intelligence and evidence for the interdiction of organised crime rings and to catalyze existing laws in different countries (e.g. The Protect America Act 2007 [United States of America] and the United Kingdom’s Sexual Offences Act). The second mandate was facilitate the rescue, safety and rehabilitation of missing, exploited, enslaved and endangered children. The third mandate was to compile and disseminate imagery to assist and identify criminals involved in the trafficking of children. The fourth mandate was to play a proactive and dynamic role in raising awareness on the issue of child exploitation. The final mandate was to compile and disseminate empirical data The IACAC was in South Africa to assist in formulating and instigating an effective tactical initiative to stop child trafficking. The organisation could also assist with the domestic child exploitation issues via an agreement charter with the Minister of Justice that would authorize the IACAC to collaborate with an existing or newly formed entity whose singular task would be to address this problem aggressively. The IACAC’s data system was a remarkable tool that was more secure than the Federal Bureau of Investigation’s (FBI) data system. A joint operation between the IACAC and South Africa would be highly effective as the organisation was already established in 60 countries and this would not come at a huge cost for the country.

The proposal was as follows: the IACAC needed a specific target from the South African Government in order to at collaboratively with a governmental entity like the Justice ministry. The IACAC would deal aggressively with trafficking especially child-related trafficking. This would be a fully-fledged charter that would be assigned international recognition by South Africa’s diplomatic missions and representatives abroad. The IACAC would set up an interim draft charter of costs for development. The IACAC could then draft a long term strategy. Coming here was a great risk and it was not something that was usually done by the organisation. There were major individuals that preyed on children, hence the risk.

Discussion
Mr G Ndabandaba (ANC) asked if trafficking was a one way or two way process, if it was both ways then what incidents were there of children from foreign countries being trafficked into South Africa? How big was the IACAC in terms of staffing size and infrastructure?

Mr Hovey replied that there were South African and foreign children being trafficked out and into the country respectively. Some kids were trafficked via a shipping container to Greece. There was information received that a Nigerian syndicate was trafficking white South African girls. The organisation’s size was something that could not be disclosed, but it was present in 60 countries; 54 000 children were being taken care of and educated all over the world. A lot of the children had AIDS and the organisation would provide anti-retroviral drugs via agreements with pharmaceutical companies.

Ms D Schafer (DA) commented that it was hard to find statistics in South Africa and asked if the IACAC had any idea as to the extent of trafficking in South Africa. Which areas would the Committee have to focus on in South Africa? Were the international statistics from organisations such as the United Nations (UN) accurate?

Mr Hovey replied that data that was being provided was not as accurate as it should be; the data from the IACAC was collected from people on the ground. The IACAC did not exaggerate its figures but in some instances it had estimates based on empirical data from another area where there might be real problems. However the problem was real and the perpetrators were connected all over the world. 

Mr J Jeffery (ANC) said that due to the lack of data the Committee was having difficulty in finalising the Combating of Trafficking in Persons Bill; as legislators, Members of the Committee had to legislate for a problem on the basis of extensive knowledge. There was a need for statistics. Could the IACAC provide statistics from other countries as it did not seem to have data from South Africa? It was not useful to provide anecdotes; the Committee needed to have proper data. IACAC seemed to know about a lot of trafficking that was going on in the country. Was it providing information to the police? If not, why not? The organisation was undercover and not willing to disclose much information about itself, yet it wanted an agreement with the South African Government. The Constitution provided rights for non-South Africans as well, so they would be afforded the same assistance as locals. Was there a structural relationship between the organisation and other local non-governmental organisations (NGOs)?

Mr Hovey replied that there was no empirical data available in South Africa; the IACAC could provide data from other parts of the world. The IACAC was willing to work with the Government to collect and provide empirical data. The IACAC was not looking for accolades or to garner funding. The IACAC had strong relationships with many governments. Interpol could verify the organisation as well. There were 18 operatives who monitored the orgnisation’s computers 24 hours a day as they were being hacked all the time. The organisation tried to do the best it could when working with governments but governments were corrupt; the law enforcement in South Africa had issues; women enslaved in prostitution recently went up to the authorities and requested assistance as their passports had been taken away - the police response was that the women should go back to their pimps because they would be thrown back in prison.

Mr Jeffery followed up by asking for more details on the example given of the shipping container that was going to Greece. The problem cannot be addressed unless it was reported. The police in the example mentioned earlier could be reported and action could be taken. Was the IACAC suggesting that it could not work with law enforcement because it was corrupt?

Mr Hovey said that he knew that there was a problem on a worldwide basis. The organisation worked with law enforcement all the time and had already met with the local police. When the container reached Greece each child was followed individually as tipping off the Greece government would have made things difficult.

Ms Schafer said that the concern from Mr Jeffery was that the IACAC was asking for the Government’s trust, but this had to be reciprocal. The Committee could make recommendations to the Government, perhaps to somebody more senior - perhaps Mr Jeffery could do that. Was it correct to say that the orgnisation was being set up in South Africa only now?

Mr Hovey replied in the affirmative; he had met with Government officials as well as other NGOs and law enforcement.

The Chairperson asked if, in his view, Mr Hovey thought that the Prevention and Combating of Trafficking in Persons Bill was adequate.

Mr Hovey said that he had read it but this was not his area of expertise. The organisation had experts who could look at the Bill and provide suggestions in writing.

The Chairperson followed up by saying that Mr Hovey had said that law enforcement in South Africa was weak.

Mr Hovey said that he had found the system to be weak and not individuals; this was confirmed by the officials themselves.

The Chairperson asked if Mr Hovey would be able to tell the Committee who those people were.  

Mr Hovey said that he would ask those officials to contact the Committee.

The Chairperson explained the Committee’s power to subpoena anybody to appear before it.                   

Mr Hovey still said that he would ask those officials to contact the Committee. The IACAC was trying to assist in any way it could.    

Adv S Holomisa (ANC) commented that he was confused as to how Mr Hovey could advise the Committee on the Bill it was working on when he has not read it, and asked if this was not the basis of the day’s meeting.

The Chairperson also asked if the IACAC’s role would be operational as opposed to legislative.

Mr Hovey replied that the IACAC would assist in whatever manner the Committee deemed fit.

Mr Jeffery said that his difficulty with the approach from the IACAC was that there was no cognizance of what had already been done in the country. It was problematic that somebody from outside came before the Committee to inform it that everything was wrong; what the Committee needed was empirical data. The IACAC would be encouraged to report crimes to the police.

The Chairperson added that 30 days before the start of the World Cup the Committee had the Bill before it but decided to deal with it after the World Cup despite pressure to finalise it beforehand. There were huge figures bandied about as to the influx of women into the country for trafficking purposes that would occur because of the World Cup. The reasons for not finalising the Bill before the World Cup was that the Committee wanted to properly apply its mind and also that it did not legislate for the Federation of International Football Association (FIFA) but for the people of the Republic of South Africa. In hindsight, this was a wise decision by the Committee as it would have been “burned” if it had rushed through the Bill. The Committee’s concerns today were legitimate and it was not trying to catch out the IACAC.

Mr Hovey said that the IACAC was trying to help and not push what it had already done nor ignore what had been done so far in South Africa. The role envisaged for the IACAC was to work with organisations in the country to try and gather empirical data.

Ms Schafer said that Mr Hovey was brought in at short notice and the Committee should bear in mind the context in which he was brought before it.

The Chairperson said that another reason why the Committee was seeking specific answers was that this would be necessary in the event that he Committee requested funding from the Minister of Justice and Constitutional Development who could in turn request the funding from the Minister of Finance who would seek motivation.

Mr Hovey said that the IACAC could assist in gathering the empirical data.

The Chairperson thanked Mr Hovey for coming at such short notice.

Protection from Harassment Bill: Deliberations
Mr Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development (DOJ&CD), said that the procedure of the meeting would be to go through the Bill clause by clause whilst highlighting the problematic clauses.

Preamble
Mr Robbertse said that it had been pointed out pointed out from comments received from the public hearings that the words ‘harassing behaviour’ in the preamble were not consistent with harassment in the Bill. It was suggested that behaviour should be deleted and only harassment used. Harassing would be used instead of harassing behaviour. 

Definitions
Mr Robbertse said the new definitions inserted in the Bill accommodated comments received during public hearings and those requests made by the Committee. The new definitions inserted were: electronic communications identity number; electronic communications service license; Sexual Harassment (included in definition of harassment); and harassment with intention (comment received from Avusa). The Respondent had paragraphs inserted that catered for some of the new clauses that had been added to the Bill.

Ms Christine Silkstone, Content Advisor, Portfolio Committee on Justice and Constitutional Development, said that it had been pointed out in one of the meetings that the definition of harm basically meant harm and did not define harm at all.

Mr Robbertse replied that harm in its ordinary meaning meant something that would adversely affect a person; the definition contained in the Bill told one exactly what harm meant e.g. mental harm, etc. If harm was not defined then its ordinary dictionary meaning would be referred to.

Ms Dellene Clark, Researcher at the South African Law Reform Commission (SALRC) added that the aim of the Bill was to prevent physical harm.

Mr G Ndabandaba (ANC) asked for a further explanation of the word ‘unwelcome’

Ms Clark replied that this word was usually used in the context of sexual harassment as it was incumbent upon the person who was the object of the attention to indicate that it was not welcome. The definition was also included in the employment equity legislation and it was a standard definition.

Mr Robbertse said that certain circumstances in a case would have to be taken into consideration and the courts would deride each case on its own merits.

Adv Holomisa said that the definition of harm was not adequate and it did not define the word harm.

Mr Robbertse said that when the legislation was drafted it would be difficult to define harm.

Adv Holomisa asked how one would know if there was harm.

Mr Robbertse replied that he was aware the definition was not substantive but it gave effect to what could guide the court.

Adv Holomisa said that the law must be clear for the benefit of ordinary citizens.

The Chairperson said that this would have to be flagged. 

Clause 2
Ms Schafer said that 2(4) could be a problem as every second child might take their parents to court. Was it not possible to have an insertion that provide for the assistance of an adult at all times?

Mr Robbertse pointed out that the current Domestic Violence Act had a similar provision and the courts were not inundated with requests from children.

The Chairperson echoed Ms Schafer’s concerns.

Clause 3
Mr Holomisa asked how the order would be served.

Mr Robbertse replied that the order would be served in the manner prescribed in the Magistrates Court Act unless the court had made specific provisions as to how the order was to be served. In terms of the Bill this would be provided for in subordinate legislation.

Ms Clark added that the Bill did not provide for the order to be served by the complainant.

Ms Schafer said that any anomalies should be provided for in the Bill and not subordinate legislation. Why was clause 3(4) in the Bill?

Mr Robbertse replied that this was an Ex Parte application and the respondent never knew about this. The respondent might claim that the matter was not brought to his attention and might use this as a defence. Once the order was granted it had to be served to the other person.

Ms Schaefer asked what if the sheriff took two weeks to serve the order.

Ms Clark added that the aim was to bring to the attention of the respondent the order. A further reason was that the order came with a suspended warrant of arrest; this was serious and it had to be brought to the attention of the respondent.

Mr Robbertse added that there was a similar provision in the Domestic Violence Act.

Ms Schafer said that just because the Domestic Violence Act had a similar provision it did not mean that the same mistake had to be repeated again. The Committee had to impose time frames; there had to be a time factor.

Mr Robbertse referred to clause 3(3)(a) and said that the ‘prescribed manner’ referred to subordinate legislation that was yet to be drafted that could allay the Committee’s concerns.

Ms Schafer replied that this would not allay the concerns of the Committee and she was opposed to the use of subordinate legislation. Could the Bill not refer directly to the Magistrates Court Act?

Mr Robbertse said that the Act made provision for an order to be served to a place where a person resided or worked or to his /her attorney and by registered post.

Clause 3A
Ms Schafer asked for an explanation on the anonymity of cyber stalkers, which was a subject of the previous day’s meeting with Department.

Mr Robbertse replied that there was a preliminary application where the court would satisfy itself that there was a real possibility of harassment. Then the court would ask for more information regarding the identity of the stalker.

The Chairperson commented that, not withstanding Dr Oriani–Ambrosini’s concerns about abuse, it was not that easy to say that someone should just delete material that they had received as harassment was a life changing experience that could harm someone.

Clause 3B
Ms Schafer commented on clause 3(b) that it was foreseeable that there would be a flurry of applications for an extension from the police.

Mr Robbertse replied that the court still had to apply its mind to a request from the police before giving an extension.

Ms Schafer pointed out that the clause did not provide for good reasons to be furnished before an extension was granted; that had to be included in the clause.

Clause 3C
The Chairperson raised concern over 4(b) and asked if it was legitimate.

Mr Robbertse said that there was already a similar provision in Section 41(1) of the Criminal Procedure Act. This has not faced a constitutional challenge.

The Chairperson asked what ‘other information’ related to.

Mr Robbertse replied that it related to other means by which the person could be identified i.e. their identity document or driver’s licence.

Ms S Sithole (ANC) asked what protection was there for a person who was wrongly detained once it was found that he or she not the respondent.

Mr Robbertse replied that under the civil law a person could institute a claim against the police for wrongful arrest.

Ms Sithole said that many individuals, especially those that hailed from the rural areas, would not know that such avenues even existed; she asked how the law protected an individual in such an instance.

Mr Robbertse said that there was the Independent Complaints Directorate (ICD) and Public Protector (PP) that one could complain to.

The Chairperson said that all the dilemmas that the Committee faced would eventually have to be resolved by it.

Clause 4
No Amendments/Issues for consideration

Clause 5
Mr Robbertse said that clause 5(4) was inserted as a result of the submission from Avusa.

Clause 6
Mr Robbertse said that clause 6(7) was not a new insertion but an amendment as a result of representations made by the South African Police Services (SAPS).

Adv Holomisa referred to clause 6(3) asked if there was a similar provision in any other law.

Mr Robbertse referred to the Domestic Violence Act and said there was a similar provision.

Adv Holomisa followed up by asking if such a provision existed for purposes of rape cases as well.

Mr Robbertse replied in the negative and added that in rape cases there were protective mechanisms, e.g. in some courts a victim could testify in camera.

Mr Lawrence Basset, Chief Director: Legislative Development, DOJ&CD, said that, for the benefit of the Committee, the Department would make available copies of the SALRC’s reports on this matter.

Adv Holomisa referred to clause 6(7) and asked why there was a prescribed period.

Mr Robbertse replied that, as already indicated, the police had a huge administrative burden in terms of other legislation and the prescribed period added some relief for that.

Clause 7
Mr Robbertse indicated that there was a new insertion, which was clause 7 (2)(b). The Department was of the opinion that there should be less harsh punishment for non-compliance for an order by the police as opposed to the current provision under clause 15(1). Clause 7(4)(a) was contended during the public hearings.

Ms Schafer asked why the Department was of this opinion.

Mr Robbertse pointed out that there were already duties and penalties imposed on civil servants if they failed to act properly and, save for the Public Finance Management Act (PFMA), there were no other laws that were as harsh as this provision.

Ms Clark explained that during deliberations (including those on the Domestic Violence Act) from the SALRC’s side it was decided that the police should rather face disciplinary action because if there were harsher penalties then one would have run the risk of not having any police officers deal with such cases.

Ms Schafer said that the actions of the police would only be criminalised if they were doing something wrong. She asked on what basis they would not want to be involved in these cases.

Ms Clark said that from a practical perspective the police were faced with a lot of procedural issues in this section and if they were to overstep the mark unintentionally then they could face a serious criminal charge against them.

Mr Basset said that the Department would have more discussion on this proposal and get back to the Committee.

The Chairperson said that the Committee would have to consider clause 7(4)(a) more closely; it was effectively saying that a complainant might not have a second bite at the cherry.

Clause 8
Mr Robbertse said that there was a proposed amendment from the Department on 8(1)(b)(2); if the Committee opted for the five year lapsing period for a protection order, then the word ‘exposed in terms of clause 6(7) would have to be inserted in this clause.

Clauses 9, 10
No Amendments/Issues for consideration

Clause 11
The Department had inserted a ‘or (b)’ at the end of clause11 (2)(1)(a).

Clauses 12, 13, 14
No Amendments/Issues for consideration

Clause 15
Mr Robbertse said that this was the offences section. Offences had been created in respect of electronic communications service providers and their employees. There were offences created relating to SAPS.

The Chairperson said that the Committee would have to decide if electronic communications service providers should be fined R10 000 as these providers earned millions of rands. In the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) they stood to lose their licence. This should be flagged.

Clause 16
Mr Robbertse said that this was the Regulations section.

Clause 17
Mr Robbertse said that this related to policy directives. Clerks of the court should be included under clause 17(3)(4).

Clause 18
Amendments of other legislation, column three of the Schedule.

The Chairperson said that the fact that the Directives and Regulations were subject to Parliament’s approval should be flagged.

The meeting was adjourned.



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