The Portfolio Committee on Justice and Constitutional Development continued with its deliberations on the Prevention and Combating of Trafficking in Persons Bill [B7- 2010] (the Bill). The National Prosecuting Authority (NPA) continued to present its proposals for amendments, and comment on submissions. However, the Committee criticized, several times, the fact that documents provided to Members, documents from which the Department of Justice was working, and documents read out y the NPA did not correlate with each other, which made it difficult for Members to engage with the proposals. It was suggested that the presentation proceed nonetheless, that a further corrected document should be supplied, and that the NPA must be present to give clarity when Members deliberated on the clauses.
The NPA presented its proposals on the long title, suggested the addition of the words “not to be treated in a cruel, inhumane and degrading way” to the last paragraph of the preamble, and suggested a new heading for the chapter on definitions and interpretation, in line with other legislation. Members requested more information, including case law, on the interpretation of ‘know or ought reasonably to have known’, which appeared in other legislation, as the NPA felt that the same interpretation should be attached to this across all relevant legislation. The NPA questioned whether it was necessary to include a definition of ‘protective custody’. Members debated the issue and decided that this was necessary, to give the police these powers in respect of a victim who was not a state witness. The NPA suggestions on the formulation of the offence of trafficking were debated, and Members discussed whether it was necessary, firstly, to separate out direct trafficking and indirect trafficking (such as transporting a victim of trafficking) as two separate offences, and the implications of making reference to ‘direct’ and ‘indirect’. The way in which the offence was worded in the Bill would determine whether a separate definition was needed. Although proposals were put for clause 4, Members did not have these options in front of them. Members discussed the need to include references to intention when formulating the crime, particularly around the crime of debt bondage, and the Committee requested more information and case law references for this. Members agreed that it was irrelevant, for the purposes of clause 8, whether a victim of trafficking was in possession of valid travel documents, but the suggestion was made that there needed to be a distinction between inter-country and intra-country trafficking. The NPA presented a new formulation, which was agreed to. The NPA did not support clause 9(4), stating that the National Director of Public Prosecutions had the power to designate any High Court, but it was pointed out that the submission related to something different and the clause should instead be amended. The portion of the Bill dealing with factors to be taken into account when sentencing was to be moved to another place in the Bill. There seemed to be agreement, after discussion, that the wording of clause 15 should refer to any victim of trafficking. In clause 17, the NPA felt that there was no necessity to refer to letters of recognition, although the Department of Justice indicated that discussions were ongoing with he Department of Home Affairs on related issues. Clauses 20, 25, and 27 were flagged for further debate. The Asset Forfeiture Unit outlined some comments on the need to establish a link between assets that were used to lure victims and recovery of the proceeds of the crime, Members commented that the intention of the legislators should be to assist the NPA and AFU in bringing prosecutions more easily. Members asked for further consideration and comment on these issues, including constitutionality, from the Department of Justice. Members also asked for an update on clause 39, and fines and sentences imposed.
Prevention and Combating of Trafficking in Persons Bill: Deliberations [B7- 2010]
The Chairperson reminded Members that the National Prosecuting Authority (NPA) officials still needed to conclude the NPA presentation on the Prevention and Combating of Trafficking in Persons Bill (the Bill), from an earlier meeting during the second term.
Mr J Jeffery (ANC) raised a procedural concern, noting that the Committee had received the presentation only on the previous day and it was not clear what version of the Bill was referred to in the documents. The version that the Committee had received did not contain any options. There was an attached document on statistics, but this had not been updated since the Committee had received it earlier.
Adv Thoko Majokweni, Head, Sexual Offences and Community Affairs Unit (SOCA), NPA, said that the instructions from the Committee were that the NPA should work with the Department of Justice and Constitutional Development (DoJ&CD) or the Department). The NPA had received a Bill labeled “Amendments to the Trafficking in Persons Bill” on 18 July 2011, and had worked on this document. This Bill had been sent to the Committee Secretary.
Mr Jeffery said that he had only received a copy of the document referred to now, although it bore a June date.
Adv Majokweni said that the document was received on 18 July.
Mr Lawrence Basset, Chief Director: Legislation, DoJ&CD said that the Department was up to date with its working document, and this had been submitted to the other stakeholder departments in line with the Committee’s request. The Department had not finished with that working document at the time that it was submitted to other parties.
Adv Majokweni suggested that the meeting should continue and all documents handed out should be used. When this was agreed to by the Chairperson, the document setting out the amendments was tabled and presented to the Committee.
Adv Marshal Mokgatle, Deputy Director, NPA, said that the word ‘Republic’ should be removed from the long title.
Mr Jeffery asked for the motivation behind this suggestion.
Adv Gerhard Nel, Head: Policy Development and Legislative Inputs, Office of the National Director of Public Prosecutions (NDPP), corrected this statement, saying that the proposal was that it should be removed from the definitions section, not the long title. The reason for this was that the word was already defined in the Interpretation Act. It was very rare to have a definition of Republic in any separate statute. Similarly, the words ‘binding on the Republic’ could be removed from the Long Title, as the provisions of an international Convention were sometimes not binding on the Republic. A country could attach certain conditions and obligations to its accession to a convention, so that the entire Convention may be regarded as not binding.
Mr Jeffery said that the NPA appeared not to support the removal of the word ‘Republic’ from the Long Title of the Bill.
Mr Basset suggested the alternative wording ‘to which the Republic is a signatory’.
The Chairperson confirmed with Members that the alternative suggested by Mr Basset was preferable.
Adv Mokgatle said that the NPA proposed the insertion of the words “not to be treated in a cruel, inhumane and degrading way” into the last paragraph of the preamble. This would be in line with Section 12(1)(e) of the Constitution.
Ms D Schäfer (DA) asked where exactly this should be inserted.
Adv Nel said that the wording would be inserted after the word ‘cause’.
The Committee accepted the proposed amendment.
Adv Mokgatle said that the NPA proposed inserting a heading ‘Definitions and Interpretation’ for the Chapter. This would be in line with the Prevention of Organised Crime Act, No 121 of 1998 (POCA), the Prevention and Combating of Corrupt Activities Act, No 12 of 2004 (PCCA) and the Protection of State Information Bill. The request for including a reference also to ‘interpretation’ was necessary, because the words ‘know or ought reasonably to have known’ were included in the Trafficking Bill. The NPA was of the view that the same interpretation should be attached to these words in the Bill as had been attached to them in the other pieces of legislation.
Ms Schäfer asked if ‘objects’ should be removed.
Adv Mokgatle replied in the affirmative.
Mr S Swart (ACDP) asked if the idea of doing so was to make the prosecution easier.
Adv Mokgatle replied in the affirmative.
Adv Nel also agreed and said that if this was in legislation the state would not have to refer to case law.
Mr Swart asked if there was an interpretation in case law.
Adv Nel replied in the affirmative.
Mr Jeffery said that the clause was fundamental to the Bill. He requested that the Committee be provided with the references for sections of the pieces of legislation mentioned, as well as an indication of cases where there was litigation. He also asked what would happen to clause 2, which dealt with objectives, but had nothing to do with interpretation, saying that if this was to stand in its current place, then either the heading of the Chapter should be changed to ‘Definitions, Interpretation and Objectives’ or clause 2 should be moved to a new chapter altogether.
The Committee agreed with the suggestion from Mr Jeffery.
Adv Mokgatle said that the question had been asked whether a definition of ‘Protective Custody’ was necessary. Section 185 of the Criminal Procedure Act already empowered the NDPP to request the detention of witnesses who were in danger.
Ms Lowesa Stuurman, Researcher, South African Law Reform Commission, explained that one of the reasons this proposed definition was included was that the Department of Social Development (DSD) did not have the capacity to deal with cases where a victim’s life was threatened or in danger. In such instances, DSD indicated that it would need assistance from the South African Police Services (SAPS). SAPS indicated that it, in turn, did not have the capacity to guard a facility housing a victim whose life was in danger. The suggestion was that the victim should then be taken into protective custody. Section 185 of the Criminal Procedure Act only provided for state witnesses, so it was necessary to include this provision specifically in this Bill to cater for those who were not state witnesses.
Mr Swart said that it seemed the wording was taken from the Child Justice Act. When the Committee drafted that Act, it had deemed it fit to deviate from Section 185. However, the suggestion was that the wording be left in, as it would not do any harm.
Mr Jeffery said Section 185 of the Criminal Procedure Act dealt with witnesses in a criminal case. This clause, as set out on pages 26 to 27, in clause 12(2), concerned a police official taking a victim into protective custody, but there was no involvement of the NAP. He agreed that the definition should remain as the police needed this power.
Ms Schäfer agreed.
Sexual Exploitation provisions
Adv Mokgatle said that the NPA had no problems with Option 1.
Mr Jeffery said that he was now confused as to which option was being mooted, because the presentation before Members did not set out what was contained in the options.
Mr Basset agreed that there was going to be confusion amongst Members, as the Department was working off its own Working Draft, which did not contain this option. He conceded that the Department should have sat down with the NPA prior to this meeting.
Mr Swart said that the issue was covered in the Criminal Law Sexual Offences Bill and it need not be repeated in the Bill.
Mr Jeffery said that the Bill was complicated and complained again that the Committee had not been provided with the proper documentation. The document that the Committee had been sent only contained the clause as introduced, but not all the options.
Adv Mokgatle said that the NPA proposed that the Bill should be uniform and consistent in its approach to criminalise the offence of trafficking.
Adv Nel indicated that the NPA was provided with four options. The NPA was proposing that there should be a traditional description of the offence, starting with the words “Any person who…” The NPA wanted to include a reference to both direct and indirect trafficking. The NPA also wanted to add a reference to the immediate family member of the victim.
Mr Jeffery said that he had a problem with the wording that created the offence of trafficking. It seemed that the NPA wanted to have both trafficking, and involvement in trafficking, listed in the same offence. This did not make sense and he thought that combining the two would result in confusion. The idea of setting a more detailed offence of trafficking in the offences section, rather than in the definitions section, was supported. However the previous clause 3(2), which set out the offence of involvement in trafficking should remain. Then the words ‘directly or indirectly’ should be removed. This would mean that there were two offences. The first offence, of trafficking, was more serious than the second offence, of involvement in trafficking. He then asked if the other references to trafficking in the Bill were going to be defined.
Adv Mokgatle referred the Committee to the NPA’s submission on Clause 3, which made reference to involvement in trafficking.
Mr Jeffery again asked if there was a need for the phrase ‘directly or indirectly’. ‘Indirectly’ implied something similar to involvement, and not actual trafficking.
Adv Nel said that if this issue was considered, for example, in the context of fraud or abduction, then it was possible to do so indirectly. The NPA was submitting that the portions of the Bill dealing with involvement and participation should be moved to the end of the chapter dealing with the offences. This was how the POCA legislation was drafted.
Mr Jeffery asked under what circumstances a person could be ‘indirectly’ trafficked. There had to be clarity on this; as presently worded it was amorphous.
Adv Nel said that an intermediary could be used to transport victims. The NPA did not want the Bill to effectively create a lower or lesser offence. Anyone transporting victims should be equally guilty of trafficking as one who was actually arranging the trafficking in a more direct way.
Mr Jeffery said that the essential issue was that recruitment of a person must be proven, regardless of the number of intermediaries involved. The ‘direct or indirect’ references did not make this clear.
Mr Swart said that the overriding concern for the Committee should be to facilitate the prosecution of these crimes. If this wording already existed in other legislation then it should be considered, and he asked if there was indeed similar wording used in other cases.
Adv Nel replied that all the other definitions, both in existing South African legislation and international conventions used similar wording.
Mr Swart said in that case he did not have a major problem with including these words. Insofar as the removal of the definition was concerned, this would depend on the way in which trafficking was referred to and referenced elsewhere in the Bill.
Mr Jeffery said that the Trafficking Convention did not refer to ‘direct or indirect’.
Ms Schäfer said she did not understand why the definition had to be taken out, as she could see no harm in it remaining.
Ms Schäfer asked why the wording for debt bondage, as well as the words “giving or receiving of payments, compensation, rewards, benefits or any other advantage” was removed.
Adv Mokgatle said that the proposal from the NPA was that debt bondage should be a stand-alone offence.
Ms Stuurman said that she wanted to propose a definition of trafficking in persons that was in line with the Kenyan legislation, which would then read ‘Trafficking in persons has the meaning assigned to it by Section 3’.
Adv Nel said that the parts referred to by Ms Schäfer should be included, as they were in his version of the document.
Mr Jeffery complained again that the approach to documentation was not professional on the part of the NPA. This was a complex document. The NPA should come back with a text of its proposal on sub-clauses 2 and 3.
Adv Majokweni apologised for any difficulties
Adv Nel said that the NPA did have a text for this clause, but he was not sure if the Members had the same wording in front of them. He summarised that proposals had been made for a new clause 4(1), including proposals around involvement by participation, incitement and other instances.
Mr Jeffery said that this was precisely the substance of his earlier concerns. He had absolutely no clue what Adv Nel was speaking of, and he questioned how the Committee could be expected to consider what was being said when all the relevant information had not been provided. It was tempting simply to dismiss the NPA from this meeting. However, he suggested rather that the NPA be permitted to continue with the presentation, send the proper documentation, but make sure that it was present when the Committee went through the Bill clause-by-clause.
Ms Schäfer added that this was unprofessional and embarrassing.
The Chairperson said that all Members, including himself, were struggling to understand the references made by the NPA to the proposed amendments to clause 4.
The Chairperson asked if somebody could address the legal aspects around the elements of the offence, particularly where the main offence did not set out intention.
Adv Nel said that in all other pieces of legislation, intention was not specifically cited, because of the need to provide for dolus eventualis. There were various cases that said that mens rea should be implied, and here it was necessary to consider both the context and the purpose of the legislation, for purposes of determining whether mens rea was going to be dolus eventualis.
Ms Schäfer said that from what she recalled of her legal studies, dolus referred to intention – and there were broadly three categories of dolus directus, dolus indirectus and dolus eventualis. This seemed to make it clear that dolus was in fact intention.
Mr Swart asked for more information on this proposition. Dolus eventualis referred to intent.
Mr Jeffery said that he would have thought that intention was specified for the crime of debt bondage because this was quite specific. Other issues could intervene that resulted in a person getting into debt bondage where there was no intention. Debt bondage should not include an instance where a person was trying to recover his or her money and ended up in debt bondage.
Adv Nel said that he had not intended to imply that dolus eventualis did not include intention. It was already included in terms of legislation and case law.
Mr Jeffery asked if it would not be easier simply to include intention under the elements of the crime of debt bondage.
Adv Nel said that he would have to do more research on the matter, as he had no particular experience in dealing with debt bondage.
Mr Jeffery said that there was nothing lost by including intention in the related crimes.
Mr Swart asked whether the concern was that, by including the word ‘intentionally’, this would depart or detract from the proposed deeming provision, which was ‘ought reasonably to have known’. Intention, as stated was direct, and if this was included, then perhaps ‘ought reasonably to have known’ provision would not apply. He asked if the courts had ever given an interpretation whether the word ‘intentionally’ excluded dolus eventualis.
Adv Nel said that he agreed with Mr Swart. If the word ‘intentionally’ was used, then this would have to be a specific intent.
The Chairperson said that the matter should be flagged and the Committee would await the case law on this issue
The NPA was of the view that the possession of a passport or visa was irrelevant. The question was whether the carrier ‘knows or ought to have known’ that a person was a victim of trafficking, but nonetheless assisted in transporting such a victim.
Ms Schäfer agreed that whether or not a person was in possession of a passport had no bearing upon whether or not the person was being trafficked.
Mr Jeffery said that the intention behind the NPA ‘s submission was to widen the offence of trafficking, as this had not quite been covered in the Bill as originally worded. There was, however, a wide gap in relation to internal trafficking overland, where there were no passport requirements. The Committee should be careful about wording this provision so widely. The Committee should consider having two sections, one that would relate to trans-border trafficking, and could apply to airlines, and one catering for trafficking overland, within the country. It would be interesting to get input from the airline companies.
Ms Stuurman drew the Committee’s attention to the NPA’s previous submission, where it had made provision for internal trafficking. That was contained on page 23, in clause 9.
The Chairperson said that the Committee did not have this document.
Adv Nel said that the document from which he was working did make provision for this. The wording read as follows: ‘A carrier who (a) knows that a person is a victim of trafficking or (b) ought to have known that a person was a victim of trafficking, and who brings or removes a victim of trafficking from the Republic is guilty of an offence.’ He added that now a new sub-clause (2) had been added, to the effect that a carrier who suspected that any of the passengers was a victim of trafficking must immediately report it. Then sub-clause (3) provided that a carrier who failed to comply with these provisions would be guilty of an offence.
Mr Swart said that the Committee agreed with the insertions, and suggested that Mr Bassett could make the necessary amendments.
The Chairperson agreed.
Adv Mokgatle said that the NPA did not support this clause. Section 111 of the Criminal Procedure Act had a similar provision, where the NDPP had the power to designate a court. For this reason it was suggested that this sub-clause should be deleted.
Mr Jeffery asked which court would adjudicate upon offences committed outside the country.
Adv Nel said that this would be done in a South African court.
Mr Jeffery asked if a case could be brought in any High Court.
Adv Nel replied in the affirmative, and added that the NDPP would consider matters such as the location of the witnesses before deciding which High Court would be suitable.
Mr Jeffery said that the proposal for deletion was incorrect. In fact the submission had requested that the NDPP should have the power to determine in which court a matter would be prosecuted.
Mr Swart said that the clause should be amended, and supported Mr Jeffery’s recommendation that instead the clause needed to be amended.
The Chairperson agreed.
Factors to be Considered when sentencing
Adv Mokgatle said that the provisions setting out the factors to be considered for sentencing should be moved to appear after Clause 39, as this was the penalties clause.
The Committee agreed.
Adv Mokgatle said that Clause 15(1) could only refer to a victim of trafficking if the suggested definition of a ‘victim of trafficking’ was inserted.
Mr Jeffery asked if the clause did not already refer to a victim of trafficking.
The Chairperson said that he did not understand the submission, as the clause already referred to a victim of trafficking.
Adv Nel said that the clause referred to a child who was a victim of trafficking. However, he agreed that there was no reason why it should not refer to a victim of trafficking.
The Chairperson said that he understood.
Ms Schäfer concurred with the Chairperson.
Adv Mokgatle referred to Clause 17(1) and said that it was not necessary to refer to clause 13(7), concerning the definition of a letter of recognition.
The Chairperson asked why this was so.
Mr Jeffery explained that it was already defined.
Mr Bassett alerted the Committee to the fact that during the deliberations between the DOJ&CD and Department of Home Affairs (DHA) the latter department had indicated that it was trying to tighten up on refugee and asylum-related legislation, and some of the provisions in this Bill might be in conflict with that. The Deputy Minister of DHA had requested that there be liaison with that office.
Mr Jeffery suggested that the NPA be allowed to finish its presentation, and that the other issues could then be addressed.
Adv Mokgatle referred to clause 20(1) and said that the NPA proposed that the word ‘transferred’ be used. The relevant Department should comment on whether two months would be sufficient under Clause 20(7)(a).
The Chairperson said that this would be flagged for further discussion.
Adv Mokgatle said that the NPA proposed that the responsible Department should issue guidelines and directives.
The Chairperson said that this would also be flagged.
Chapter 6, Clause 27
Adv Mokgatle said that the NPA proposed that the Committee should consider the inclusion of a proviso that in the case of the amendment of conditions, the victim should be consulted.
Adv Mokgatle said that the content of clause 28 was catered for in Clauses 11A and 11B. The Asset Forfeiture Unit (AFU) could expand further on this.
Mr George Hardaker, Senior Special Investigator, Asset Forfeiture Unit, said that this organisation operated under the POCA provisions. One of the shortcomings that was possible in asset forfeiture applications could be that courts might not be inclined to see the link, or nexus, between the instrumentality of the trafficker exerting power over the victim through using financial assets which exerted an impression of aura and wealth, and the proceeds of crime. The AFU would have difficulty in convincing a court of this link, using the current provisions of Chapter 6. However if the instrumentality – namely the financial assets – were in the hands of the trafficker, and were subject to seizure, then the situation might be made easier. There were other instances where Chapters 5 and 6 might not be viable from the AFU standpoint.
Mr Swart said again that the intention of the legislators must be to assist the NPA and AFU in bringing prosecutions more easily. He asked if there was likely to be a problem if these provisions were tested in court.
Mr Hardaker said that criminals were likely always to test the boundaries of new legislation. He noted that Chapter 5 required there to be a conviction. Chapter 6 required a direct nexus between what had been used to attract the victim and commit the offence, and what could be seized as the proceeds of unlawful activity. There would be advantages in the long run in making amendments.
Mr Jeffery said the main concern related to what was being changed in the existing legislation, POCA. This was not quite clear from what had been presented. The proposal seemed to be trying to cater for the situation where a prosecutor might not have filed an asset forfeiture declaration, and it would not seem correct, in principle, to allow this as essentially this would be covering up a prosecutor’s mistakes. The Committee should balance all the rights. He conceded that obviously the NPA would like to have the route that best facilitated the prosecutions.
Adv Majokweni said that that was the brief the NPA received.
Ms Schäfer said that there seemed to be no logical reason why the proceeds of crime should not be attached.
The Chairperson said that he was a little concerned that more would be taken than the damages actually proven.
Mr Hardaker said that the nexus between the proceeds of crime and instrumentality might be difficult to prove, under POCA.
Mr Jeffery asked for a detailed comment on this from Mr Bassett and Ms Stuurman. He would also like them to consider and provide their views on the constitutionality of the provision, for discussion by the Committee when it returned to this issue. He asked whether the AFU was hoping that the relevant section of POCA would be included. He also enquired what the difference was between the proposed clause 11B and the provisions of the PCCA.
Mr Hardaker replied that these provisions of the legislation had not been applied since the legislation was enacted in 2004, even though it would be useful in asset forfeiture cases. There were instances where a criminal case had been finalised, but asset forfeiture proceedings still had to follow and the application of the Criminal Procedure Act would now be problematic. Chapter 6 would assist, as it could be used in cases where the Criminal Procedure Act was no longer available. There would also be an opportunity to gather evidence from those closely associated with the suspect, as well as other information that could contribute to taking the matter forward.
Mr Jeffery asked where the line would be drawn and wondered if it would not be the thin end of the wedge to extend these provisions to trafficking, which should be easier to detect.
Mr Hardaker said that there was already a provision in the PCCA that referred to proceeds of unlawful activities, and not proceeds of corrupt activities.
Adv Nel said that similar provisions also were included in the terrorism legislation.
Mr Swart added that these were also in income tax legislation.
The Chairperson said that the Committee should consider this further.
Adv Mokgatle suggested that the Bill should not rely on the Adjustment of Fines Act of 1991, especially where juristic persons were charged, as these fines were likely to be insufficient. Instead, it was proposed that a specific fine should be imposed. The National Environmental Management: Biodiversity Act, No10 of 2004, Marine Living Resources Act, No18 of 1998 and Environment Conservation Act, No 73 of 1989, were some of the examples where this had been done in the past.
Mr Jeffery asked for more information, and an update of the document presented in June 2011, where some specific cases, sanctions and sentences imposed were set out.
The meeting was adjourned until the following day.
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