Prevention and Combating of Trafficking in Persons Bill: deliberations

Meeting report

Opening Statements
The Chairperson noted the meeting was being held so the Department of Justice and Constitutional Development (DoJCD) could respond to questions posed by Members at previous deliberations. Once these questions were answered, the DoJCD would meet with the National Prosecuting Authority (NPA). The DoJCD would then draft a working document to present to the Committee. The DoJCD did not have to go through the Schedule of the Bill as the Members could read through this themselves.

The Chairperson reminded Members they would be addressing the matter of state liability on 9 March 2011. The Committee had received only one written submission on state liability from the Bar Council. There was no need to meet with the Bar Council and the idea that the Committee needed to have public hearings “fell away”. There was no meeting scheduled for 8 March 2011. The sub-committee could take advantage of this time to discuss other matters.

Ms D Schafer (DA) added that the Committee could use the time to discuss the raid on the Office of the Public Protector.

The Chairperson informed Members that there had been a raid on the Office of the Public Protector by members of the South African Police Service (SAPS). This was a disturbing development and he could not believe what had happened. According to the news, the National Commissioner condemned the raid and said that it had not been authorised. He thought as many Committee Members as possible should be at the meeting on 8 March to air their views on the matter. Some Members suggested that the Public Protector be present at this meeting. This left the Committee Secretary the difficult task of persuading the Office of the Public Protector making itself available on 8 March. He asked the Committee Secretary to try his best to persuade the Public Protector to attend the meeting. It was important to look at the procedure for “challenging” a Chapter 9 institution. The Committee could not remain silent under the circumstances.

Ms Schafer welcomed the meeting heartily. Technically, the Public Protector reported to Parliament, but the Committee was the body that would represent them on this issue. She agreed that Members could not remain silent, as it was a very important matter.

Mr M Oriani-Ambrosini (IFP) added that “bad cases made bad laws, which set bad precedents”. He had applied his mind to the situation and thought that it would be better if the Committee could meet before the meeting to understand the parameters of the discussion. The Committee had to contextualise the situation in which the SAPS conducted a ‘search and seizure’ within a Chapter 9 institution. The Committee had not dealt with this kind of situation before and needed to understand the constitutional implications before they were confronted with the facts.

The Chairperson stated that his understanding of Adv Oriani-Ambrosini’s suggestion was that the Public Protector should be present at the meeting as well as a State Law Adviser (SLA) to speak to the Committee on the issues raised.

Mr Oriani-Ambrosini replied that he would like someone from the University of Cape Town (UCT) to talk to the Committee about the search and seizure.

The Chairperson stated that there would be difficulty in justifying why the Committee wanted someone from UCT to talk to them when they already had State Law Advisers, who were paid to do that job.

Mr L Ndabendaba (ANC) commented that he embraced the Chairperson’s suggestion that the Committee meet with the Public Protector on 8 March.

Mr S Swart (ACDP) added that he also supported the proposed meeting. He was already on record condemning the actions of the SAPS. He disagreed with Adv Oriani-Ambrosini’s assumption that the SAPS search and seizure was lawful, as the police already admitted that it was unauthorised. He had no objection to having a State Law Adviser at the meeting.

Ms Christine Silkstone, Content Adviser, suggested that the Committee should also invite a Parliamentary Legal Adviser (PLA) to the meeting with the Public Protector and the State Law Adviser.

The Chairperson noted that the meeting with the State Law Adviser, the Parliamentary Legal Adviser and the Public Protector was scheduled for Tuesday, 8 March 2011. The Committee Secretary would make the necessary arrangements.

The Chairperson informed the Committee that Adv Joe Malahlela, former Member of Parliament and ANC Member, passed away. He was a very young man who was never afraid to express his views. He served on the Justice Portfolio Committee with diligence and integrity. It came as quite a shock to hear of his death. The Committee’s sympathies went to his family.

Mr Swart commented that he was very sad to hear of Adv Malahlela’s death. He would always remember him as being a gentleman. He asked the Chairperson to express the Committee’s condolences to his family.

Ms Schafer stated that although she did not know Mr Malahlela, she wanted to convey the DA’s deepest condolences.

Mr Oriani-Ambrosini stated that he had not had the opportunity to meet the former Member, but he wanted to convey his party’s condolences to his family.

Mr Ndabandaba added that he had not worked with Adv Malahlela directly but he knew him as a comrade. He wished to express the ANC’s condolences to the former Member’s family.

Deliberations on the Prevention and Combating of Trafficking in Persons Bill
Mr Lawrence Bassett, Chief Director: Legislative Developments (DoJCD), informed the Committee that there were Principal Acts that were being amended in the Schedule of the Bill. These were consequential amendments as a result of the provisions in the Bill. Some of the schedules of the Principal Acts were being amended, such as Schedule 3 of the Child Justice Act.

Mr Bassett noted that provisions in clause 39 of the Bill, which spoke of the National Policy Framework, did not have statutory timeframes like the Child Justice Act and the Sexual Offences Act. He would appreciate the Committee’s guidance on this matter once the working document was being drafted.

Mr Swart agreed that the matter should be discussed by the Committee. He asked what the practical implications were for the Child Justice Act and if there was sufficient time to implement the National Policy Framework. The Committee needed to assess whether the timelines for the Child Justice Act were too long or too short. He was fully supportive of the regulations being brought before the Committee for discussion.

The Chairperson replied that the Committee would have to check with the rules and procedures of Parliament to see when regulations were tabled and when they could be brought before the Committee.

Ms Schafer agreed that the regulations should be discussed by the Committee; however, she did not want to delay the implementation of the regulations.

DOJ&CD replies to questions posed at previous deliberations
Mr Bassett noted that there had been a number of questions posed at previous deliberations. He asked Ms Lowesa Stuurman, Researcher: SA Law Reform Commission, to address these:

1   Ms Stuurman referred the Committee to clause 40 of the Bill. A question had been asked concerning clause 40(5). A Member had asked why the sub-clause did not allow the Intersectoral Committee to invite universities to its meetings. She noted that clause 40(5)(c) said that the committee could invite persons to its meetings when necessary. This was broad enough to allow for universities to be invited to the meetings. She suggested that the Committee could insert the words “or organisations” after “persons” in clause 40(5)(c). She did not think there was a need to mention universities by name, as it meant that other organisations would also have to be mentioned by name. It was better to leave the clause as broad as it was.

2   She referred to clause 42, which required that the Minister had to submit reports to Parliament on the implementation of the Act. The question asked was if there were any penalties for failure to submit the reports. The DoJCD had looked at the Child Justice Act and the Sexual Offences Act, which contained similar provisions. Those provisions did not provide for any penalty. Also, the DoJCD did not think it was appropriate to legislate for an imposition of a penalty on the Minister, should s/he fail to submit the reports. It was part of Parliament’s oversight function to monitor the submission of the reports.

3   Ms Stuurman noted that Mr Oriani-Ambrosini asked what the status was of a statutory mandated policy such as the National Policy Framework. She referred Members to clause 39(1) of the Bill, which contained an enabling provision that placed a statutory obligation on the Minister to compile an Intersectoral National Policy Framework. The National Policy Framework in itself would not be part of the Act; it would be separate. Clause 39(1) only contained the enabling provisions. The inclusion of the enabling provision in the Act was important, as it ensured compliance as well as accountability. Clause 39 spoke of an obligation to adopt the National Policy Framework, as well as having a uniform and coordinated approach to deal with cases of trafficking. This provision enabled government to monitor whether the Framework was in line with what was provided for in clause 39(1).

4   Ms Stuurman reminded the Committee that a Member had noted that the Bill provided for a specific category of persons of which the DoJCD did not even know how many existed in the country. The Bill also provided that an intersectoral approach should be followed to deal with these people. This would have cost implications. The crux of the question was whether the Committee should deal with issues of trafficking now or if they should wait until they had clarity on the extent of the problem in the country currently. She was not in the position to answer this question. The DoJCD had already ratified the relevant international instrument, which placed an obligation on the government to legislate on the issue. This had to be adhered to. The question had to be answered on a higher level than the departmental level.

5   Ms Stuurman addressed the next question. Acknowledging that the summary deportation of a person was prohibited if s/he was recognised as a victim of trafficking, the question was about those that had not yet been recognised as victims of trafficking. The deportation of such persons could be problematic if persons that were not victims of trafficking claimed to be victims in order not to be deported. Clause 29 of the Bill prohibited the summary deportation of a victim of trafficking only after an assessment was conducted to ensure they were victims. The DoJCD wanted to make an additional recommendation to cater for those that were in the process of being assessed. With regards to adults, the summary deportation should be prohibited if adults have been referred to an accredited organisation and who were in the process of being assessed. The summary deportation of children should also be prohibited if the child has been sent to a designated child protection service to be assessed as whether they needed care and protection. However, the DoJCD was also of the view that the provisions of the Act should not be used to prevent or delay the deportation of any other person.

6   Ms Stuurman referred the Committee to clause 43(3)(c) of the Bill. The question was why the sub-clause stated that any regulation made in terms of this Act may provide for censure for failing to comply with the regulations. The sub-clause was just an enabling provision and the DoJCD was unable to provide for censure in the regulations if they did not have the enabling provision in the Act itself.

Mr Bassett added that this was included in a lot of legislation that the DoJCD had been involved in. It was quite a standard provision.

7   Ms Stuurman noted that clause 39(2) provided that the Minister had to adopt the National Policy Framework. The question was whether the Minister had the power to adopt the National Policy Framework. A similar provision had been included in the Sexual Offences Act and the Child Justice Act. She suggested that instead of using the word “adopt”, it might be more appropriate for the Minister to “approve” the framework.

Ms Stuurman stated that these were all the questions the DoJCD had to respond to.

Discussion
The Chairperson asked Members for follow-up questions.

Mr Oriani-Ambrosini said that his question had concerned the formal status of the National Policy Framework. One did not need an enabling provision, as “any executing authority was mutually enabled to adopt policy papers”. This was not an enabling provision, it was a mandatory provision. He had no idea what a “summary deportation” was as opposed to a “full deportation”. What needed to be stopped was the deportation of someone that claimed to be a victim of trafficking before s/he reached a social centre. The treatment for people claiming to be victims of trafficking should be the same as that for asylum seekers.

Ms Stuurman replied that giving the same treatment for asylum seekers and people claiming to be victims of trafficking could open up the system to abuse. Anyone subject to deportation could lie and say they were a victim of trafficking and the deportation process would be abused. It was better to determine first if the person really was a victim of trafficking.

Mr Swart said this was a valid point. As far as he knew, the Department of Home Affairs was not deporting victims of trafficking. The Committee had to be careful to avoid the abuse of the deportation processes.

The Chairperson referred the Committee to clause 43(3)(c). He understood what Mr Bassett was saying but the Committee was providing for a sanction within subordinate legislation. The Committee had raised its concerns about this. Why could they not provide for an offences clause there and include this in the offences clause rather than leaving it in the hands of the Minister? The Committee felt very uncomfortable with this matter.

Mr Bassett asked for clarity on what would be included in the offences clause.

The Chairperson answered that Clause 43(3)(c) would be included in the offences clause. Any person that contravened the provision of the sub-clause or failed to comply with it was guilty of an offence.

Mr Basset answered that there were often penalty clauses in regulations if there was a need to criminalise certain actions.

Ms Schafer wondered how the Minister would decide which offences would be criminalised and which would not.

Mr Basset noted that this was problematic and this was why the regulations had to come back to Parliament for approval. He asked if the DoJCD could have another look at this when they returned to their office.

Mr Oriani-Ambrosini asked if the DoJCD could make a provision for an amendment in the working document, where in addition to the repeal of section 70 and 71 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act on page 37 of the Prevention and Combating of Trafficking in Persons Bill, there was also a repeal of section 11. This would help to avoid the problem of inconsistency between the category of “victims” and the category of “villains”.

The Chairperson asked the DoJCD to consider Adv Oriani-Ambrosini’s request. He hoped section 11 of the Sexual Offences Act was not dealing with the repeal of prostitution.

Adv Oriani-Ambrosini replied that he did not think that anyone would be able to repeal prostitution.

The Chairperson noted that he did not want Adv Oriani-Ambrosini to “bring in through the backdoor” the issue of prostitution.

Mr Oriani-Ambrosini answered that he was bringing the matter through the “door of rationality”. If the Committee did not deal with this issue, the Bill was doomed. This was a matter that had to be debated. Members had to discuss the matter as rational people, not emotionally. He felt duty-bound to put it forward as a matter to be discussed.

The Chairperson asked Mr Bassett to take note of the prostitution issue and to note that a decision had not yet been taken on the matter.

Mr Swart commented that the Committee could consider the issue, but they were “opening up a can of worms”. He disagreed that the Committee should even be including prostitution as an option. Once a working draft was available, the Committee could consider Mr Oriani-Ambrosini’s suggestion.

Ms Schafer added that she did not think it was the right time to raise the matter, as the issue was an entire debate on it own. It was a controversial matter as well. It was inappropriate to try and slip it into the Prevention and Combating of Trafficking of Persons Bill. She supported Mr Swart’s suggestion.

The Chairperson concluded that the topic of legalising prostitution was not off the table completely. However, it was not addressed in the Bill, which meant it would require the Committee to ask the Executive if they would be in favour of the matter being included in the Bill. This would mean having to send the Bill back and would result in a much longer process.

Mr Swart said that the Transport Portfolio Committee had a similar situation with the Road Accident Fund Act, where the Committee wanted to fundamentally change the Act. The Executive then withdrew the Bill and that was the end of it.

The Chairperson concluded that the matter of legalising prostitution would then be off the table. He thanked the DoJCD for their input.

The meeting was adjourned.