Protection From Harassment Bill: adoption; Prevention and Combating of Trafficking in Persons Bill: deliberations

Meeting report

Protection from Harassment Bill
The Chairperson said that the Committee would begin with the consideration and passing of the Protection from Harassment Bill. Were there any last minute considerations?

Mr Lawrence Bassett, Chief Director: Legislative Development from the Department of Justice and Constitutional Development (DOJ&CD) said that there was nothing that the Committee had to be alerted to and the A version was ready.

Mr S Swart (ACDP) said that the Committee should vote on the Bill clause by clause.

Motion of Desirability
The Committee via a vote approved the Motion of Desirability for the Protection from Harassment Bill.

Short Title
Approved by the Committee

Clause 1
Approved by the Committee.

Dr M Oriani-Ambrosini (IFP) said that he had reservations on the definition for ‘electronic communications’, ‘identity number’ and ‘electronic communications service provider’.

The Chairperson said that the time for reservations had passed and it was a yes/no/abstain as this was a formal vote.

Clause 2
Approved by the Committee

Clause 3
Approved by the Committee

Clause 4
Approved by the Committee

Dr Oriani-Ambrosini was opposed to the clause

Clause 5
Approved by the Committee
Clause 6
Approved by the Committee

Clause 7
Approved by the Committee

Clause 8
Approved by the Committee

Clause 9
Approved by the Committee

Clause 10
Approved by the Committee

Clause 11
Approved by the Committee

Clause 12
Approved by the Committee

Clause 13
Approved by the Committee

Clause 14
Approved by the Committee

Clause 15
Approved by the Committee

Clause 16
Approved by the Committee

Clause 17
Approved by the Committee

Clause 18
Approved by the Committee

Clause 19
Approved by the Committee

Clause 20
Approved by the Committee

Clause 21
Approved by the Committee

Clause 22
Approved by the Committee

Clause 23
Mr J Jeffery (ANC) said that the short title should be Protection from Harassment Bill 2011.

The Committee agreed and approved the clause.

The Chairperson put to the Committee the whole Bill as amended and the Committee agreed.

Memorandum on the Objects of the Protection from Harassment Bill
The Committee approved the Memorandum on the Objects of the Bill

Dr Oriani-Ambrosini said that an Act did not have a Memorandum only a Bill.

Mr Jeffery said that in terms of the Rules of Parliament the Committee had to pass the Memorandum of Objects.

Committee Report on the Protection from Harassment Bill
Mr Jeffery referred to page 19 at the second point, which related to the Committee’s recommendation that the Minister of Justice and Constitutional Development should look at the criminalisation of the act where an applicant made a false statement. A reasonable period within which the Minister should report back to the House should be inserted.

Mr Bassett suggested that 24 months would be ideal.

The Committee agreed that 24 months would be a reasonable period.

Dr Oriani-Ambrosini requested that his reservations on the Bill's restriction on Internet Service Providers (ISP) should be noted.

The Chairperson put the adoption of the report to the Committee, which adopted it save for Dr Oriani-Ambrosini.

The Chairperson thanked the drafters and said that the Committee was now going to have the National Prosecuting Authority's presentation on its proposals for the Prevention and Combating of Trafficking in Persons Bill.

National Prosecuting Authority proposals: Prevention and Combating of Trafficking in Persons Bill
Advocate Nolwandle Qaba, Senior Manager for Trafficking in the National Prosecuting Authority’s Sexual Offences and Community (SOCA) Unit said that the NPA suggested extending the heading on Definitions to 'Definitions and interpretation'. The definition for abuse of vulnerability had been amended so that there was sub-clauses (f) and (g). This was because having socio-economic circumstances, as an aspect of vulnerability would have been restrictive. Therefore (f) was a now social circumstance and (g) was an economic circumstance.

Dr Oriani-Ambrosini said that socio-economic was all inclusive and did not exclude anything else

Ms Malebo Kotu-Rammopo (SOCA National Coordinator) said that vulnerability could be as a result of poverty, which would be economic or social. One could have a class of people who were vulnerable to social and economic circumstances or both. If one had socio-economic only, then the prosecution would be limited as social and economic circumstances had to exist at the same time in a case involving a victim of trafficking.

Prof G Ndabandaba (ANC) agreed with the NPA and said that it was reasonable to separate socio-economic.

Dr Oriani-Ambrosini said that his question was what circumstances were excluded by the definition.

Mr Jeffery said that the list under clause 1 was an open list that was not limited to the set of circumstances listed. He agreed with the proposal. What was the context within which 'immediate family member’ was used in the Bill?

Mr S Swart (ACDP) said that this was a good definition to have as one had to be careful with the resources that were given to victims of trafficking and immediate family members.

Mr Jeffery agreed with Mr Swart and supported the definition.

Dr Oriani-Ambrosini said that he understood the definition as meaning anybody who had dependents who were immediate family so this included parents, uncles, cousins and so on.

The Chairperson said that as long as they were with the victim.

Ms Qaba moved on to the definition on the removal of body parts and said that the deletion of 'sole' before 'purpose' would decrease evidentiary burden for proving intention.

Dr Oriani-Ambrosini said that there were three types of body parts that were dispensable, which were blood, female eggs and stem cells. These were sold and differed in price from place to place. The Committee should seek to criminalise the donation of such things as blood as sometimes people did it for money as a result of their economic situation.

The Chairperson said that this was already criminalised.

Mr Swart said that in trafficking, it was not voluntary to donate body parts, it was often forced on a person.

Dr Oriani-Ambrosini said the victim’s volition was corrupted and they had been manipulated into agreeing.

The Chairperson disagreed with Dr Oriani-Ambrosini and asked the NPA to continue.

Ms Qaba said that it had been agreed that in the definition of trafficking 'sale and lease' should be deleted, as one could not refer to a human being as being the object of sale or lease.

Ms D Schäfer (DA) said that this was the purpose of the Bill as people were being sold.

Ms Qaba agreed but added that the legislation was not endorsing the sale and lease of humans.

Ms Schäfer said that the definition was not endorsing this but it was dealing with the factual situation.

Mr Swart agreed and used the definition for slavery as an analogy where there was a reference to the ownership of humans. The NPA also had to indicate to the Committee the impact of the changes to its prosecution in cases.

Mr Jeffery agreed with Mr Swart.

The Chairperson asked if 'sale and lease' should remain and the Members agreed that it should.

Ms Qaba continued and said that the words 'of a person trafficked or an immediate family member of the person trafficked' has been removed as it appeared twice in the definition for trafficking. The scope of the definition for trafficking was increased through the addition of the words 'any one or more of the following'.

Mr Swart asked if the definition of ‘debt bondage’ had been removed entirely.

Ms Qaba said that it had been moved elsewhere as it was felt that it should be a stand-alone definition.

Mr Jeffery said that he did not understand why ‘debt bondage’ and ‘false pretences’ had been removed from the list.

Adv Thoko Majokweni, SOCA Unit Head, said that the NPA had felt that it was not necessary to have ‘debt bondage’ twice in the legislation and that a person should just be charged with debt bondage as a separate offence if it could be proved. Previously it was a definition and an offence.

Mr Jeffery asked why the NPA would not want to charge a person with debt bondage and trafficking?

Mr Swart asked if the NPA was looking at alternative charges or competent charges. The removal was also a concern.

Ms Schäfer agreed and felt that debt bondage should remain.

Ms Lowesa Stuurman, Researcher: South African Law Reform Commission (SALRC), said that one of the reasons why debt bondage had been removed was that debt bondage was not really part of the trafficking process but came in afterwards. It was a method of keeping a person in an exploitive position.

Mr Jeffery disagreed and said that one had situations where a person would come to South Africa as an exotic dancer and only later get told that they had to engage in prostitution to pay for their air fare and outrageous interest would be charged. This was a situation where debt bondage was used to entrap a person and effectively it became trafficking.

Dr Oriani-Ambrosini said that he agreed with Mr Jeffery and added that if the value of the services equalled the value of the services rendered in payment of the debt than there was no debt bondage.

Ms Schäfer said that to say 'if the value of the services equalled the value of the services rendered in payment of the debt than there was no debt bondage' was missing the point completely. The point was that one was being forced to provide services they did not want to provide.

Mr Swart added that the word bondage emphasised that it was not just any debt and amounted to something that was more than a debt. The definition though was not properly crafted.

The Chairperson said that the definition had to be re-considered as the current draft looked like a very normal contract between two persons who reached an agreement but then at some point it became excessive. Compulsion and bondage was missed completely in the definition.

Ms Qaba said that ‘false pretenses’ was removed, as it was repetitive when placed alongside deception. The entire part on sexual grooming was removed, as there was already an emphasis on trafficking for sexual purposes.

Mr Swart agreed with the removal of sexual grooming and the reasoning behind it.

Ms Qaba said that a new definition was added which was 'trafficking related activities’; this was done for the purposes of section 11B.

Mr Swart asked if the new term was for investigations and forfeiture under 11B.

Ms Qaba said that that was the thinking behind the addition of the new term.

Mr Swart asked if it would not be preferable to make a cross-reference to the Acts mentioned under 11B with the new term. Did the way it was set out assist in the NPA's prosecution?

Ms Qaba said yes it did.

Mr Marshall Mokgatlhe, Deputy: SOCA Unit, said that the reason was to simplify the process instead of having to satisfy an asset forfeiture application post conviction. It would be easier for a prosecutor to use the Bill when it became an Act for restraint and forfeiture purposes.

Dr Oriani-Ambrosini said that he had reservations about the Prevention of Organised Crime Act (POCA) as the assets of an innocent person would be seized on the expectation that the person could be fund guilty. Given that trials were long made things more difficult. The language in the new term was problematic there and elsewhere in the Bill. This emanated from the Palermo Convention. There should be a requirement of intent where being an accessory or assisting in the commission of trafficking was involved.

Mr Swart said that he supported POCA and the Constitutional Court (CC) found it to be constitutionally compliant. The IFP also supported the legislation at the time it was passed. Would the NPA not open itself to constitutional challenges again by including derivatives of POCA in this section?

Ms Schäfer asked if POCA did not apply to trafficking anyway?

The Chairperson said it did.

Ms Schäfer asked why it had to be in this section?

Ms Malebu Kotu-Rammopo, National Coordinator of the SOCA unit from the NPA said that Mr Willie Hofmeyer who was head of the Asset Forfeiture Unit (ASU) provided strong motivation for why there had to be a reference to sections of POCA. A further reason was that if the same legislation was used to prosecute throughout proceedings, the time of trial would be shortened.

Mr Swart asked if this meant that the NPA could go the POCA route or use the Bill and would this be beneficial?

The officials said yes.

Mr Bassett said that the definition for the new term made reference to Chapter 3, this should be Chapter 2 instead.

Ms Qaba said that there was a new proposal for a definition of 'victim of trafficking'. There were two options for this.

Mr Swart asked which option was preferred by the NPA.

Ms Qaba said that the NPA preferred Option 1, which read: ‘victim of trafficking’ means a person who is a victim of the offence of trafficking in persons as referred to in section 4. This was because the NPA felt that the certification of victims constituted a secondary form of victimisation.

Mr Jeffery asked what the first option entailed; did it mean that somebody would have had to be found guilty of trafficking first before a victim could be declared a victim for instance? Why did the NPA want to define victim of trafficking.

Ms Qaba replied that the NPA's analysis was not from a prosecutorial viewpoint but it was felt that a lack of definition for a ‘victim of trafficking’ was an omission.

Mr Jeffery said that the instruction to the NPA was to look at strengthening the Bill for purposes of prosecutions only. The section that dealt with the identification of victims was surely sufficient. Since this was something that did not assist in prosecutions then they should move on.

The Chairperson asked if it should be removed.

Mr Jeffery said yes. Could there be clarity on the provisions on page 14 of the Draft Bill.

Mr Mokgatlhe said that the NPA was of the view that trafficking almost always involved organised crime therefore the POCA provisions were considered in order to strengthen the prosecution where syndicates were involved.

Dr Oriani-Ambrosini said that the inclusion of 'ought reasonably to have known' placed an enormous burden on a person especially where they were part of a gang but were not privy to everything that was going on. A distinction would be drawn between the intention and effect of an act.

Mr Jeffery requested from the officials a comparative analysis between the POCA provisions and the relative provisions in the Bill.

Ms Qaba said that the 'Public Awareness' provision has been removed under clause 3 and inserted under clause 41. The heading of the new Chapter 2 has been expanded to include investigations as well as forfeiture. This was crucial for the prosecutorial function.

The Chairperson said that he liked the Chapter and it was very good.

Ms Qaba continued to clause 4, which was narrowed down to trafficking and excluded those acts, which related to committing, acquiring another person and conspiring to commit an offence. It was felt that it was not necessary to include that somebody was subject to Section 51 of the Criminal Law Amendment Act in clause 4(1). Clause 4(1) was divided so that punishment was under sub-clause 2 and 4(1) was 'A person was guilty of an offence of trafficking in persons if that person trafficked another person'. The fine had been increased to a maximum of R100 million.

Mr Jeffery said that he noticed from the other documentation that the sentences in trafficking cases were light, why? Should the Committee not consider minimum sentences in this provision even though he was not a fan of them?

Adv Pierre Smith, Deputy Director of Prosecutions: SOCA, agreed with Mr Jeffery and said that the NPA was also shocked with some of the sentences. The NPA was also concerned about this. The reasons behind the light sentences could have been that trafficking was a relatively new thing at the time that was not sufficiently covered in legislation.

Mr Azwi Malange: Office of the Prosecutorial Director in the NPA, said that some of the sentences were plea and sentence agreements however the sentences were very low. Clause 4(2) was intended to introduce minimum sentences as it referred to Section 51 of the Criminal Law Amendment Act.

Dr Oriani-Ambrosini said that minimum sentences prevented judges from considering the exceptional circumstances of a case.

Mr Jeffery said that the Committee should not be having the debate around minimum sentences now.

Ms Schäfer said that the NPA was also responsible as it agreed to these low sentences in plea bargain agreements. The will of the NPA to take these matters seriously was questionable.

Mr Jeffery requested an analysis from the NPA on the sentences and re-assess why plea agreements were reached in some of the sentences.

Ms Schäfer added that it should be specified which of the sentences involved plea agreements and which were taken on appeal by the NPA.

Ms Qaba said that the proposal for the deletion of clause 4(2) was that it should be moved to another part of the Bill. It was felt that the offence of involvement to trafficking should be applicable to all offences and not just trafficking in persons.

Mr Jeffery asked to where it had been moved.

Ms Qaba replied clause 9A and B on pages 23 and 24 of the Working Draft of the Bill.

Mr Jeffery asked for the opinion of the SALRC drafters.

Ms Stuurman replied that the re-arranged offences were only applicable to the offence of trafficking; the amendment was supported, as it would be applicable to all the other offences. Where there were disagreements with the NPA, the SALRC would raise them.

Ms Qaba said that under clause 8(1)(a) the penalty formulation had been removed and placed under clause 8(1)(b). Provision was made for the criminal sanctioning of landlords who became aware or should have been aware of trafficking activities on their premises after leasing whatever buildings.

Mr Swart said that a fine of up to R50 million sounded steep for a person who was just leasing a room. The provision was not being opposed though.

Mr Jeffery asked why the NPA wanted to quantify the fines.

Ms Qaba said that the NPA wanted to leave it to the presiding officer but still direct their discretion with the size of the penalty.

Mr Mkgatchi said that the provisions in the POCA guided the NPA. The Adjustments of Fines Act and the Magistrates Court Act were also considered but were not of much use.

Mr Jeffery said that if the NPA wanted to quantify fines then it would have to do it all the way through. There could be a section on sentencing guidelines to address this issue.

Ms Qaba moved on to clause 9A(1). It was sub-divided in order to deal with the penalties separately from the main charge. The fine under sub-clause (b) has been increased from R1 million to R50 million, as carriers were juristic persons.

Ms Schäfer expressed caution at the size of the fines as not all juristic persons had huge sums of money.

Ms Qaba said that the view was that juristic persons involved in or facilitation for trafficking would have received huge sums of money.

Ms Kotu-Rammopo said that the new clause 9A(1) now covered internal trafficking as well.

Mr Swart asked why the defence was being removed under clause 9(2)A. Would the common law defence of impossibility not apply here? Should not the defence remain?

There was no response from any of the officials.

Mr Swart said that this should be re-considered.

Ms Qaba said that clause 9A had been removed under clause 4 so that it was a stand-alone offence and was applicable to all offences. There was no prescribed sentence under the offence in clause 9A(2).

The Chairperson asked how this would work practically.

Mr Smith said that in the Domestic Violence Act there were similar provisions where there were no sentences for some offences, this did not mean that one could not still use the offence, the court had the discretion even where the legislation was quiet and did not provide for a specific offence penalty. There was sufficient case law to demonstrate this.

Mr Swart asked why there was no specific penalty clause. Was there a specific benefit to the prosecution? This was a concern.

Mr Smith said that this was a valid point and given that the Bill was in draft form, a penalty clause would be considered.

Ms Qaba moved on the clause 9B and said that the provisions therein provided scenarios, which would not constitute defences. Clause 9B(2) constituted an important amendment as the conduct of an employee, agent or any other representative acting on behalf of another could be attributed to the employer or principal. The employee or agent was not devoid of responsibility.

Mr Swart said that this was similar to vicarious liability, was it common practice to use this for criminal law as well?

Ms Qaba said that this was not a common law doctrine. It was inserted so as to make it easier to prosecute more persons

Ms Stuurman informed Members that the SALRC proposed changes to paragraph 9A and 9B. Paragraph 9A should read as follows: A child who is a victim of trafficking or a person who had control over a child who was a victim of trafficking, consented to the intended exploitation, the action which was intended to constitute an offence under this chapter. Paragraph B could be amended accordingly.

The Chairperson asked if the Committee was happy with this.

The Committee agreed.
 
Ms Qaba said clause 9B(4) introduced the revocation or cancellation of any business licence in addition to any criminal sanction.

Ms Kotu-Rammopo said that this was also a deterrent for business.

Mr Swart cautioned that if there was going to be attachment in terms of POCA or the Bill, one would not want the licence to be taken away when a business was yet to be sold as a going concern by the state. Could the NPA just clarify this with Willie Hofmeyr and find out if he was happy with this.

Ms Qaba said clause 10 which dealt with extra-territorial jurisdiction had had sub-clause 3 deleted in its entirety.

The Chairperson asked why?

Mr Swart said that there was a definite need for an offence clause in this clause and this needed to be looked at again.

Ms Kotu-Rammopo said that it would be looked at again.

Ms Qaba said that the deletion was made in order to facilitate the National Director of Public Prosecutions (NDPP) once again designating in which courts prosecutions could be made. Previously that authority resided with the Minister of Justice in consultation with the Chief Justice.

Mr Swart asked if it was the Chief Justice’s new function to decide from which court prosecutorial proceedings took place. Was it normally the NDPP? The use of the word ‘designated’ seemed to suggest the court be used in terms of hierarchy or level.

Ms Kamogelo Lekubu-Wilderson, Director: Victim Support and Specialized Court Services from the Department Of Justice and Constitutional Development (DOJ&CD) said that the sentiment that the NPA wanted to establish should be re-hashed. The use of the word designate referred to the power of the judiciary as they designated courts. The Minister established them.

Ms Stuurman questioned the need for sub-clause 3 as under sub-clause 5 there was already mention of the NDPP which decided the forum and place where prosecutions took place.

The Chairperson said that he would like to know what that meant well. Different terminology was being used as now a forum was being referred to.

Mr Malange said that the relevant provision was the one that referred to a forum as the NDPP could specify in which jurisdiction a case was held in accordance with Section 111 of the Criminal Procedure Act.

Ms Schäfer said that ‘appropriate court’ was not relevant as High Court was already specified in the Bill. There was no need to specify whether it was a higher or a lower court. It also had to be ‘Chief Justice after consultation with the Minister’ instead of ‘in consultation with’.

The Committee agreed that clause 10(3) should come out.

The comment was made that the reason in clause 10(5) that there was mention of the NDPP deciding the forum and place was because trafficking cases would most likely be complicated - where a certificate of authority from the NDPP would be needed.

Ms Lekubu-Wilderson said that it would be better to have the NPA operational provisions in the Directives, as there might be problems later.

Mr Swart suggested that the Committee should consider other legislation that made reference to extra territorial jurisdiction. This could be flagged for the moment.

The Chairperson agreed.

Ms Qaba said that three other factors were added for the courts consideration during sentencing under clause 11. These were under sub-clauses (c), (j) and (k). These were not aggravating factors. The NPA would like to have the requirement of reasonable grounds removed and replaced with ‘knows or suspects or ought reasonably to have known or suspected’.

Ms Schäfer asked what was the difference between reasonable grounds and reasonable suspicion?

Adv Majokweni said that reasonable suspicion was a less onerous burden then reasonable grounds.

Ms Qabi said that there were also concerns that officials would be subject to civil liability if the reasonable grounds requirement remained in the Bill.

The Committee agreed with the changes.

Ms Qaba said that the same recommendation was made for police officials under clause 12(4) in the Bill. Clause 13 dealt with adult victims and was couched along the same lines as clause 12, which related to child victims.

The Chairperson asked why clause 13(1)(b) was deleted.

Ms Kotu-Rammopo replied that the NPA felt that 13(1)(b) was prejudicial to victims.

Ms Schäfer said that this should be flagged and the Chairperson agreed.

Ms Stuurman referred the Committee to clause 13(8) and proposed that it should be brought in line with the wording in clause 12(6). So that it was a person who failed to comply as opposed to listing the various professionals.

The Chairperson asked if the Committee agreed and there was general consensus that it would be flagged.

Ms Qaba referred to clause 16 and said that the NPA was in agreement with the prior proposal from the Committee for the NPA’s prosecutorial discretion to be removed, this has been effected. A new sub-clause 1 has been proposed. The previous sub-clause 2 has been deleted.

Ms Stuurman said that there was a danger in that accredited organisations could certify every victim that came through their door in order to secure more funding. In the new working document a clause had been inserted: all certifications had to be referred to the relevant provincial authority from the Department of Social Development, which would also have the final say.

The Chairperson agreed and said that there had to be some sort of control.

Ms Qaba said that the words “or stopping” after “withdrawal” in relation to criminal prosecutions had been added because it could transpire that whilst the trial was ongoing, the prosecutor may want to stop the prosecution. This simply enabled them to do so. This was under clause 16(3).

The Committee decided to flag this clause, as the Committee had not dealt with it after previously debating it and not reaching consensus.

Ms Stuurman said that under clause 16(1) the ‘shall’ should change to a ‘must’, under paragraph 1 the word ‘certified to be’ should be deleted because SALRC would like to include both children and adult victims. There seemed to be no relevance for the inclusion of paragraph 16(1)(c) for the purposes of deciding whether or not to prosecute. More clarity was needed on 16(1)(d).

The Chairperson said that it seemed a valid point that Ms Stuurman was making about 16(1)(c).

Mr Swart said that the NPA need not answer now and the matter should be flagged for later.

The Chairperson agreed.

The meeting adjourned.