Combating of Trafficking in Persons Bill: deliberations on Clauses 17 to 44

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Justice and Correctional Services

01 March 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Committee deliberated on the Combating of Trafficking in Persons Bill. The Department of Justice and Constitutional Development proposed an amendment for the issuing of a ‘letter of recognition’ instead of a certificate. A ‘letter of recognition’ definition was drafted and read as follows: ‘a formal written letter of recognition that an adult person was a victim of trafficking. Most of the submissions from the public hearings were of the opinion that the reflection period of victims was too short and should be extended. The Department proposed an extension from 90 days to six months and the period for the Department of Social Development should be extended to nine months. The Department of Home Affairs was of the opinion that where a victim of trafficking could not be returned to their country of origin, the victim should be assisted in applying for asylum in accordance with the Refugees Act instead of being provided with temporary residence. The Department of Home Affairs said that once a victim traveled outside of the country, then the visitors permit would expire. Objections had been raised by the Institute of Security Studies and Women’s Legal Centre about the clause which placed the onus of proof on the victim that the victim might be harmed, trafficked or killed if returned to country of origin. The suggestion was that the onus of proof should rather be placed on the Department of Home Affairs, which provided a similar function for asylum seekers. Molo Songololo had suggested that an accredited organisation should inform and educate victims on trafficking and also offer programmes aimed at a holistic psycho-social care of victims as well as to offer legal support to victims.

The Committee still felt that the issuing of a ‘letter of recognition’ was a sort of branding for victims despite the Department’s amendment, which was to replace the issuing of certificates. The Committee discussed at length the provisions providing for the compensation of victims. The Committee was wary of adopting the approach provided by the National Prosecuting Authority, which was to expand Section 300 of the Criminal Procedure Act to accommodate other victims of crime for civil claims. The Committee was of the view that this would clog the criminal court case roll. The Committee suggested that the law of delict in South Africa already had adequate provision for civil claims for victims of trafficking. The Committee was concerned about the level of security that victims had when they left accredited shelters to go to shops etc. The Committee felt that clause 36(1)(j) could possibly usurp the powers of the court.

Meeting report

The Committee resumed its clause-by-clause deliberations.

Chapter 5 Status of Foreign Victims of Trafficking
Clause 17 Recovery and reflection period
Ms Engela Steyn, Principal State Law Advisor: Department of Justice and Constitutional Development (DOJ&CD) said that clause 17 provide for a recovery and reflection period.

Ms Lowesa Stuurman, South African Law Reform Commission (SALRC) Researcher, added that concerns had been raised that the certification of victims was a sort of branding and stigmatisation. The Department proposed an amendment for the issuing of a letter of recognition instead of a certificate. A letter of recognition definition was drafted and read as follows: ‘A formal written letter of recognition that an adult person was a victim of trafficking.’

Ms Steyn said that most of the submissions from the public hearings were of the opinion that the reflection period of victims was too short and should be extended. The Department proposed an extension from 90 days to six months and the period for the Department of Social Development (DSD) should be extended to nine months. SWEAT was of the opinion that the words ‘physical’, ‘psychological’ an ‘social’ should be included before the word ‘recovery’ in the heading. The department was of the opinion that the word ‘recovery’ was wide enough to accommodate ‘physical’, ‘psychological’ and ‘social’ recovery of victims.  SWEAT proposed that a victim should not be required to cooperate with law enforcement authorities in criminal investigations as this posed a threat of deportation. Clause 17(5) provided that the reflection and recovery period afforded to victims was not dependent on the cooperation of victims.

Clause 18 Temporary residence
Ms Stuurman said the Department had discussed clause 18(1) (b) with the Department of Home Affairs which was of the opinion that in instances where a victim of trafficking could not be returned to the country of origin then the victim should be assisted in applying for asylum in accordance with the provisions of the Refugees Act instead of being provided with temporary residence.

Ms Steyn said that the Legal Resources Centre submitted that it was unclear whether a victim could travel in and out of the country once issued with a visitors permit. The Department of Home Affairs said that once a victim traveled outside of the country then the visitors permit would expire. There were concerns that the Bill was silent where a victim refused to cooperate. What recourse did victims have if they could not be repatriated? The Bill provided that victims may not be returned to their countries of origin even if they refused to cooperate. Clause 30 provided that DSD in the case of a child and Home Affairs in the case of an adult ‘may not return that child or adult to his/her country of origin or the country where he/she has been trafficked without giving due consideration to the safety of a victim or the possibility that he/she may be trafficked again’. Clause 18(4) provided that a visitor’s permit could be extended on humanitarian grounds if there was the possibility that a victim was likely to be harmed, killed or trafficked again.’ Clause 19 provided that ‘a foreign victim could apply for permanent residence if it was likely that they would be harmed, killed or trafficked again’. Clause 19 might have to be reviewed again.

Clause 19 Permanent residence
Ms Steyn said objections were raised during the public hearings by the Institute of Security Studies (ISS) and Women’s Legal Centre (WLC) on the provisions of the Bill, which placed the onus on the victim of proving that the victim of trafficking might be harmed, trafficked or killed if returned to country of origin. The suggestion was that the onus of proof should rather be placed on the Department of Home Affairs, which provided a similar function for asylum seekers. The Department suggested that clause 19 could be amended to be in line with Section 27(c) of the Refugees Act.

Discussion

Adv S Holomisa (ANC) asked what the difference was between a certificate and a letter of recognition. Did they both not result in the same thing which was the branding of a victim? Did the Bill differentiate between a person who was unwilling to cooperate and on one who was unable to?

Adv S Swart (ACDP) asked if it was assumed that the victim would be issued with a visitor’s permit, if not, what would be the legal status of that person. Was there a final position on the way forward between the Department, Home Affairs and DSD on the ongoing legal status of victims?

Ms Stuurman replied that there was no difference between a letter of recognition and a certificate. The reason there was a proposed amendment was because the issuing of certificates was raised during public hearings. The definition for a letter of recognition was adopted from the Refugees Act because if a person was recognised as a Refugee under this Act then they were issued with a letter of recognition. There would be instances where a person would not be able to cooperate because they would be too traumatised; this was why there was a recovery and reflection period provided for in the Bill. Research had shown that if victims were provided with a recovery and reflection period then they usually cooperated at later stage. A victim would not automatically be issued with a visitor’s permit if they were permitted to stay for the duration of the recovery and reflection period. A further possible option for victims was to provide them with assistance for the application of asylum. The Department had had discussions with Home Affairs and DSD. Final positions from the other Departments would be highlighted during the presentation.

Adv Swart asked what was the position of Home Affairs on clause 17(1), would this department recognise a certain status pending an investigation from DSD?

Ms Stuurman replied that one had to realise that one was dealing with a victim that has been removed from an exploitive situation. It was important at this stage to provide the victim with the necessary protective measures. It was important to get the victim to a point where they felt safe enough to cooperate. One had to consider each individual case on its own merits and ensure that a victim’s lack of cooperation was not due to mute refusal. Home Affairs had not raised any concerns about clause 17(1).

Chapter 6 Services to Adult Victims of Trafficking
Clause 20 Accreditation of organisation to provide service
Ms Stuurman said that it was suggested during public hearings that the word ‘may’ must be changed to ‘must’. The Department supported this view.

Clause 21 Minimum norms and standards
Ms Steyn said that the Department had received a submission from World Hope South Africa (WHSA) that there should be adequate access to healthcare facilities and nutrition as the latter was not provided for in the Bill. Consultations with DSD revealed that nutrition was provided for in their norms and standards already. The Department supported the recommendation that provision should be made for facilities where children could play.

Mr Lawrence Basset, Chief Director: Legislative Development for DOJ&CD, said that although the Department supported the recommendation as per what was stated in the Response Document, there had to be caution due to costs.

Ms Steyn continued by saying that it had been submitted that clause 21(3) did not provide for the assessment of children in the care of adult victims of trafficking in order to determine if they were in need of care and protection. This was already catered for under clause 22(5). Molo Songololo  submitted that the Bill should provide for disabled victims of trafficking. The Department supported this submission but it should be borne in mind that the accredited organisation should in any case take care of disabled victims. There was no need to legislate for this in the Bill.

Clause 22 Programme offered by accredited organisation
Ms Steyn said that Molo Songololo suggested that an accredited organisation should inform and educate victims of trafficking and also offer programmes aimed at a holistic psycho-social care of victims. The Department was of the view that the programmes requested were already provided for under clause 22. The Department also consulted with DSD, which supported the inclusion of psycho-social care. There was a suggestion that there should be a programme that offered pre and post-integration. DSD stated that they could assist within the borders but not on an extra-territorial basis. World Hope recommended that an accredited organisation should provide recreational facilities, the Department supported this. There was a suggestion that accredited organisations should offer legal support to victims, the Department supported this. There was a recommendation that the words ‘and in the best interests of the child’ should be included. This was already provided for in Section 9 the Children’s Act.

Clause 23 Access to programme offered by accredited organisation
Ms Steyn said that the South African Human Rights Commission (SAHRC) had made a submission on the certification of victims. The Department was working on this.

Clause 24 Plan to address needs of victim of trafficking
Ms Steyn said that the submission received was that this clause should provide for the immediate, medium and long term needs of the victim. The Department initially supported the recommendation but after deliberations with the Committee it was pointed out that medium term would be included with the long term.

Clause 25 Return of adult victim of trafficking within Republic
Ms Steyn said that this clause was inserted after initial submissions pointed out that there were no provisions in the Bill that provided for in-country trafficking.

Clause 26 Information management
Ms Steyn said there was a recommendation that clause 26(1) should read as follows: “an accredited organistion must in the prescribed manner collect information on victims of trafficking’. The Department was in agreement with the submission. Clause 26 was one of the clauses identified for improvement.

Discussion

Adv Swart asked if the provisions on accreditation in the Child Justice Act were in the Regulations or the Act itself. There were concerns raised by the Committee during previous deliberations that a balance had to be struck between trafficking victims and victims of other crimes.

The Chairperson agreed with Mr Swart, it would be a challenge to balance the benefits received under the Bill and the needs of other ordinary victims of crime.

Ms D Schafer (DA) asked if it was possible to explore other options as opposed to looking at accreditation facilities only. How long did it take to accredit?

The Chairperson referred to clause 20(4) (d), and asked which institution would receive the reports referred to there. Education was not on the list of things that had to be done for children under Clause 21. Who monitored accredited organisations and the things they had to do?

Ms Stuurman replied that the issue of the limited number of accredited organisations was discussed with DSD and the South African Police Service (SAPS). SAPS was worried about who would be responsible to transport victims to shelters. The two entities had an agreement that SAPS would be responsible for transportations of victims if it was within a reasonable distance. The system for accreditation was provided for in the Bill.

Ms Joan Groenewald, DSD Deputy Director: Victim Empowerment Programme, said that she was concerned that South Africa did not have an international social service desk as well as one that operated in the Southern African Democratic Community region as well. In order to resolve this DSD had engaged in talks with the Department of International Relations and Cooperation (DIRCO).

Ms Tsholofelo Moloi, DSD Director: Victim Empowerment Programme, said that where there were victims who did not speak any of the indigenous languages, members from the International Organisation for Migration (IOM) were roped in. This was to try and extract information from victims and repatriate them. The unit that dealt with child matters rendered assistance where victims were children. DSD would also try and identify more shelters in addition to the 13 that have already been identified. Negotiations were underway with civil society to also take in more victims.

Adv Swart said that the Committee could determine what other SADC countries had signed the Palermo Protocol.

Ms Schafer asked how long did accreditation take and perhaps a time frame could be included in the Bill, which specified how long accreditation should take.

Ms Moloi replied that this could be done but there were currently no legislative time frames for accreditation. The shelters were not accredited but they adhered to strict norms and standards.

The Chairperson asked if nearby police station were involved in the personal security of victims in shelters especially if they left a shelter to go to a shopping mall for example. Were the police aware of where the shelters were located?

Ms Moloi replied in the affirmative. The locations of shelters were circulated to the National Prosecuting Authority (NPA), DOJ&CD as well as SAPS. DSD could not require of SAPS to accompany victims on visits to shops outside the shelters. Thus there were no guarantees once they were outside of the shelter unless they left on medical grounds or to go to court.

Ms Stuurman said that there had been discussions with SAPS on this. SAPS made it clear that they did not have the capacity to accompany a victim wherever they wanted to go. In addition SAPS pointed out that they would not be able to provide round the clock security for a victim whose life was in danger. However a witness could be placed under the witness protection programme. Where a victim was not a witness but their consent was obtained to be placed under protection, then such protection would amount to being locked up in a police cell.

Ms Steyn said that the Department had to consider the fact that at times victims were exposed to drugs. Such victims then needed rehabilitation from addiction. Currently the accredited shelters did not have drug rehabilitation facilities. The Committee could look into this in order to find a way to make it easier for victims to access drug rehabilitation facilities.

Chapter 7 Compensation
Clause 27 Compensation to victim of trafficking / Clause 28 Compensation to State

Ms Steyn said that the Palermo Protocol had specified that victims had to be provided with compensation. World Hope South Africa recommended that social service professionals involved in trafficking cases should get legal support and be compensated for matters arising from the cases they handle. The Department was of the opinion that a social service professional included a probation officer, a development worker, a child and youth care worker, a social auxiliary worker and a social security worker who were registered in terms of the Social Service Professions Act, 110 of 1978. These persons would be compensated by the organisations that employed them.

The International Association of Women Judges (IAWJ) pointed out that although this Chapter provided for the recovery of claims in the civil courts, this could effectively deny the victims of trafficking proper access to justice, as civil proceedings were lengthy and expensive. The recommendation was that an expeditious procedure should be provided for. Legal representation, at the expense of the State, should be provided for victims of trafficking to institute civil claims. Consideration should be given to amending clauses 27 and 28 to provide for the freezing and forfeiture of the assets of traffickers. The Department was of the view that in terms of clause 27(2), in cases where the amount of the damage, injury or loss exceeded an order for compensation, a civil action may be instituted by the victim for the recovery of the excess. Furthermore, the person instituting the civil proceedings must be ordinarily resident in South Africa and there must be a reasonable prospect that the civil action will be successful. However, foreign victims of trafficking present in South Africa for the duration of the proposed recovery and reflection period or the duration of criminal proceedings against traffickers would not qualify as being ordinarily resident in South Africa. The Department of Justice and Constitutional Development, in consultation with the Legal Aid South Africa (LASA), should give due consideration to providing victims of trafficking with legal representation in civil proceedings in order to enable them to claim compensation for damage suffered.

The definition of ‘court’ in the Bill included a regional court. Molo Songololo recommended that provision should be made for an accredited organisation to receive compensation. A new sub-clause could be added which would read as follows, ‘Upon application by the prosecutor the court may make an order for payment by the convicted person to an ‘accredited organisation’ to compensation for expenses incurred for services rendered to the victim(s) of trafficking and children in their care’. The Department was of the view that this would be discussed with the NPA.

Discussion

Mr Basset said that only last week the NPA had said that clause 28 could be dropped and Section 300 of the Criminal Procedure Act could be adopted and used for obtaining compensation. This would mean that all victims of crime would benefit. It should be noted however that proving psychological harm or loss of a particular kind could prove difficult to prove in a criminal court. Section 300 of the Criminal Procedure Act allowed for claims of up to R300 000.

Adv Swart said that Section 300 of the Criminal Procedure Act could be amended and made broader however the implication of that on the criminal court case roll would be vast. In the delictual system of South Africa there was provision for compensation and this was in line with the requirements of the Palermo Protocol.

Ms Schafer said that to prove psychosocial loss in court would be extremely difficult within a South African context. The time to finalise these types of cases may also clog up the criminal justice system.

Mr Basset said that he was concerned about going the Section 300 route. One could argue that according to our law of delict, South Africa was already compliant with the Palermo Protocol.

Ms Stuurman said that one of the reasons behind clause 27 and 28 was that in all likelihood a victim would not be able to afford a lawyer in order to claim compensation. Currently Legal Aid South Africa (LASA) made provision for assistance in civil claims. Foreign victims of trafficking would have to be resident in South Africa to qualify for legal aid, this was a problem. A further problem was that civil proceedings took years.

Adv Swart said that the question would be the fine balancing act between victims of trafficking and other victims of crime. There had been rape victims who had successfully sued their rapists in the civil system so there was a way to obtain compensation as a victim of criminal in civil proceedings.

Adv Holomisa asked if it was justified for victims of trafficking not to be enabled to claim compensation just because other victims of crime could not do the same. The Department would have to consider this. Clause 28 was too prescriptive.

Ms Stuurman said that she had noted the concerns and would engage with the NPA on this.

Chapter 8 Deportation and Repatriation of Victims of Trafficking
Clause 29 Summary deportation of victim of trafficking prohibited
Ms Steyn said that the reason for clause 29 was for the protection of victims.

Clause 30 Repatriation of victim of trafficking from Republic
Ms Steyn said that the ISS and Women Legal Centre (WLC) submitted that there should be additional safeguards around the repatriation procedures. They recommended that a definition of voluntary repatriation should be included in the Bill. The Department suggested an amendment to clause 33, which would read as follows, ‘Provided that the victim has been given information on the protective measures of the protection of victims in terms of this Act and (b) a clear explanation
and adequate description of the procedures to be followed in respect of repatriation.”

Clause 31
Assistance to foreign victim of trafficking
Ms Steyn said that this clause should be read with clauses 30, 32 and 33.            

Chapter 9
General Provisions
Clause 34
Trafficking of child by parent, guardian or other person who has parental
responsibilities and rights in respect of child
 
Ms Steyn said this clause contained provisions similar to those found in Section 287 of the Children’s Act. It was recommended that the words ‘other person’ in the heading should be replaced with the word ‘caregiver’ as defined in the Children’s Amendment Act, 2007. The Department’s response was that the words “other person” were in line with the provisions of the Children’s Act, 38 of 2005 as any person is entitled to approach the Children’s Court to have certain rights and responsibilities in respect of a specific child. The words “other person” are also in line with section 287 of the Children’s Act, 38 of 2005, which also makes reference to the words “other person”.

Clause 35 International cooperation
Ms Steyn said that the Department had received no submissions on this from the public hearings.

Clause 36 National instructions and directives
Ms Steyn said the clause had been identified as a clause, which could be amended in order to provide for in-country trafficking, especially for purposes of data collection and analysis. It was recommended that the national instructions and directives should apply to all government departments. The Department’s view was that clause 39 provided for the adoption of a National Policy Framework to ensure a uniform, co-ordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters relating to trafficking in persons. The Counter Trafficking Coalition (CTC) asked why the Department of Labour was not mandated to collect data, as the Department was a key role player when dealing with the detection of in-country trafficking for the purpose of labour exploitation? The Department’s response was that the Department of Labour did not need to put in place an internal information management system. Clauses 12 and 13 stipulated that a labour inspector must report cases of child and adult trafficking respectively to a police official for investigation. Cases reported to SAPS would be entered into the Crime Administration System of SAPS. In terms of the Bill, SAPS must collect and analyse information on reported cases of trafficking. These would include those cases reported to them by labour inspectors. DSD did not have Directives in the Bill, as there were many in the Children’s Act already. There were concerns that the Directives on adult victims were not enough.

Clause 37 Legitimacy of documents
Clause 38 Annual report on abuse or deliberate neglect of child and findings by children’s court
Ms Steyn said that there were no submissions.

Discussion
Ms Schafer referred to clause 36 and said that she had serious reservations on the National Police Commissioner drafting Directives on any matter. Was clause 36 (1)(j) not a usurping of the powers of the court?

Ms Stuurman said that at the end of the day it was the court’s function however the police would be responsible for investigations and for ensuring that the prosecution was provided with the necessary evidence.

Lunch Break

Chapter 10 Administration of Act
Clause 39
National Policy Framework
Mr Basset informed the Committee that there were statutory deadlines under this clause. The deadlines also extended to the Directives and Instructions. The World Aids Organisation recommended that the following sub-clause should be added: ensure that legislation in related areas serves to expose trafficking, and if it does not, seek reform of such legislation. The Department’s response was that the responsibilities, functions and duties of the ISC relate to the implementation of the proposed trafficking legislation. The ISC can therefore not assume the task of law reform. The Inter Sectoral Committee (ISC) would, however, be able to make recommendations for law reform to the relevant departments or institutions.

Clause 40
Establishment of Intersectoral Committee on Prevention & Combating of Trafficking of Persons
Ms Steyn said that this clause provided for the establishment of the ISC as well as their meetings. There was a submission that the Ministry of Women, Children and People with Disabilities as well as the Basic Education Department should be included in the ISC. The Department supported this recommendation.

Mr Basset added that the current provisions would have amendments to allow for an umbrella ISC with sub-committees dealing with Sexual Offences, Child Justice and Trafficking.

Clause 41
Responsibilities, functions and duties of Intersectoral Committee
Ms Steyn said that the Activists Networking Against the Exploitation of Children (ANEX) recommended that the Intersectoral Committee must be responsible for providing the framework for the establishment of Provincial Intersectoral Committees. The Department was of the view that the Intersectoral Committee established in terms of the Child Justice Act had established Provincial Intersectoral Committees. This had been done on an administrative level. These provincial committees had been successfully implemented. The Intersectoral Committee established in terms of the Bill could do the same.

Clause 42
Report to Parliament
No Submissions

Clause 43 Regulations
Ms Steyn said that CTC was of the view that the Ministry of Women, Children and People with Disabilities should be included. The Department supported this.

Clause 44
Delegation of powers and assignment of duties by National Commissioner of South African Police Service or Director-General to senior officials
Ms Steyn said that this clause dealt with the delegation of powers and duties by the relevant Director-Generals (DG).

The Chairperson said that time was up and the Committee would continue with its deliberations tomorrow.

The meeting was adjourned.




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