The Department of Justice and Constitutional Development presented a new Working Draft to the Committee, of the Prevention and Combating of Trafficking in Persons Bill [B7-2010] (the Bill). The Department took the Committee through the alterations, and the alternative proposals for some clauses.
In respect of the Long Title, the Committee felt that it was necessary to use the words ‘obligations in terms of international instruments’ to cater for obligations in agreements that had not yet been ratified by Parliament. The Preamble now included the words ‘ not to be treated in a cruel, inhuman or degrading way’. The Committee discussed whether it was necessary to make provision for the Palermo Protocol, felt that the definition of removal of body parts was not linked to trafficking, noted that the issue of debt bondage, which must be deleted from the definition of exploitation and form a specific offence, still needed further debate in relation to penalties. Previous suggestions for a definition of ‘trafficking’ were replaced by a new clause. The penalty clause was moved to later in the Bill. Members asked that clearer wording must be provided, under clause 7, in relation to controlling the commission of an offence, which essentially referred to the mastermind in a syndicate, and the clause was flagged. The first option for clause 8 was preferred, which set out that the offence related to transport of victims both within the borders and across borders. It was pointed out that the airlines would have to make representations during public hearings. The Committee requested consistency in including subclauses in all the offences, to include those who were accessories or conspirators. Members were concerned about the application of minimum sentences, and pointed out that they still needed to discuss the position of someone engaging in the traditional practice of ukuthwala, as well as parents of a woman in a forced marriage situation, and this clause was flagged for further debate. Members noted that both the extent of, and the effect of abuse were factors that could be considered when sentencing. Members debated whether the attorney/client privilege would apply to victims of trafficking, or should be excluded. They discussed the position around temporary safe care in clause 13, which seemed to apply to adults, and whether consent must or may be given. Clause 14 was to be redrafted, and the South African Police Service indicated that it preferred wording that allowed the police to suggest to a victim that s/he should be taken into safe custody, and confirmed that SAPS would take responsibility for the safety of victims when they were transported. Information was needed on where shelters and accredited places of safety were found, and the Committee insisted that assessments must be done by the Department of Social Development, and that appeal mechanisms and prescriptive periods must be set out. The Committee still needed to decide finally whether police who failed to comply could be criminally charged. In respect of clause 15, Members agreed that they would prefer the Children’s Court to determine status of children, and that the children should be assisted to apply for refugee status, although Members still needed to know whether a child in need of care and protection would be entitled to greater benefits than a refugee. It was noted that clause 16 conferred no greater rights than already existed under the Constitution. Clause 17 needed further discussion as to who should make the determination whether a child was a victim of trafficking.
Prevention and Combating of Trafficking in Persons Bill [B7-2010]
Working Draft: Department of Justice and Constitutional Development briefing
Mr Lawrence Bassett, Chief Director: Legislative Policy, Department of Justice and Constitutional Development (DoJ&CD or the Department) tabled a Working Draft on the Prevention and Combating of Trafficking in Persons Bill (the Bill). He then took the Committee through the Working Draft.
Mr Bassett said that wording had been added in regard to the Republic’s obligations ‘concerning the trafficking of persons, in terms of international instruments to which the Republic is a signatory’.
Ms D Schäfer (DA) asked if this insertion covered situations where international agreements were made, but had yet to come before Parliament for ratification before becoming binding on the Republic.
Mr J Jeffery (ANC) said that an international treaty or agreement became binding on ratification, and not signature, so this insertion did not cover the aspect that Ms Schäfer had outlined. He thought that this wording was not correct, because the Bill was not giving effect to the country’s obligations in terms of international treaties. He suggested that it might be better to revert to the original wording.
Ms Schäfer suggested that it would be preferable to insert ‘obligations in terms of international instruments’.
Mr Bassett noted an insertion in the Preamble, which read: ‘not to be treated in a cruel, inhuman or degrading way’.
Mr Basset said that the heading was amended to read: ‘Definitions, Objects and Interpretation’.
Mr Bassett said that the heading to this clause now read ‘Definitions and Interpretation’. The Committee had suggested that the references to ‘physical’ and ‘psychological’ should be removed. As the clause now read, the social and economic circumstances were factors for consideration for determining vulnerability, and this was endorsed by the Committee.
The definition of ‘carrier’ was changed to read as follows: ‘Carrier means a person who is the owner or employee of the owner or an agent, an operator, a lessor, a driver, a charterer, or a master of any means of transport’.
Mr Jeffery asked about the status of the Palermo Protocol, and whether it had been ratified.
Mr Bassett said that it had been ratified.
Mr Jeffery asked where the reference to the Schedule was in the Bill.
Mr Basset replied that it was in the definition section.
Mr Jeffery asked where else it was referred to in the Bill.
Mr Bassett said that it was not referred to at all anywhere else in the Bill.
Mr Jeffery asked then what the point was of giving a definition to something that was not mentioned in the main text of the Bill.
Mr Bassett explained that the Protocol was not part of the legislation, but it was attached to it for information purposes.
The Chairperson pointed out that there was reference to this also under the objects clause, and Schedule.
Mr S Swart (ACDP) agreed that it was referred to in the objects clause, which stated that the Bill gave effect to the Republic’s obligations.
The Chairperson pointed out that the important point to note was that it was attached.
Mr Jeffery thought that the issue could be flagged, as he thought that the point of having the protocol attached was not clear. He suggested that Schedule 2 could also be removed.
Ms Schäfer agreed. She asked if there was conflict between the Bill and the Protocol.
Mr Swart said that there were other protocols, hence international agreements. Perhaps, on reconsideration, the protocol should not be attached.
Mr Jeffery asked if a ‘carrier’ included any juristic person.
Mr Bassett replied that the definition for ‘person’ included natural and juristic persons.
The Chairpersons asked if the list for carriers was exhaustive.
Mr Bassett said that it might be wise to add the word ‘includes’ before the list, so that it would not seem exhaustive.
Mr Bassett asked if the Committee was satisfied with the definition of debt bondage, and pointed out that the only change was the removal of the penalty provisions in another part of the Bill.
The Chairperson said that the elements of coercion and duress were not explicitly provided for, but these were implied. The issue on the penalty provisions would be flagged pending input from Advocate Nel.
Ms Lowesa Stuurman, Researcher, South African Law Reform Commission, said that it had been suggested that debt bondage should be deleted from the definition of exploitation, because it was not a form of exploitation. Debt bondage was included under the offence of trafficking.
Ms Schäfer agreed that debt bondage should be removed from this definition, and that it should be stated in the Bill as a separate offence, in line with the request of the National Prosecuting Authority (NPA).
Removal of Body Parts
Ms Stuurman said that the Department of Health supported the definition. This definition was included here because the National Health Act did not criminalise the removal of body parts.
Mr Jeffery asked where the removal of body parts was referred to in the Bill. The question was whether this Bill had anything to do with the removal of body parts.
Mr Bassett said that the Department had inserted the NPA proposal under Clause 3. There was mention made, in the original version of the Bill, to the removal of body parts.
Mr Jeffery said that he was concerned that the current wording, which made reference to ‘possession of body parts’ may not establish a close enough link to trafficking.
Mr Bassett said that the Department would look at this issue further.
Mr Bassett asked if the Committee agreed that all the previous versions of the definition of trafficking could be deleted.
Mr Jeffery said that he was concerned about the accessories to the crime, and those who had conspired to commit trafficking. He wondered if it might not be a safer option to include crimes of conspiracy, conspiring and being an accessory.
Mr Bassett said that everything involved with the trafficking in persons was in a separate clause.
The Chairperson said the options could be deleted.
Mr Jeffery referred to page 16 and asked if the text in the version of the Bill, as introduced, could not remain.
Mr Bassett replied that during the Committee’s deliberations in June, it was suggested that the text could go elsewhere in the Bill.
Mr Bassett informed the Committee that the penalty clause had been shifted.
M Jeffery asked if it was necessary to continue to use the phrase ’ought reasonably to have known’, given the deeming provision.
Mr Bassett said that many of the provisions worded in this way would have to be adapted accordingly.
Mr Jeffery referred to Clause 7(b)(iv) and asked what was meant by controlling the commission of an offence. This had to be defined more clearly.
Adv Marshall Mokgatle, Deputy Director, National Prosecuting Authority, gave an example that in a racketeering case, this would be applicable to the person who was the mastermind behind a particular syndicate.
Mr Jeffery said that then it should be defined, as it was not clear what it meant currently.
Adv Gerard Nel, Office of the National Director of Public Prosecutions, said that perhaps the Committee could consider the word ‘managing’.
Mr Bassett said that the Department would come back to the Committee with suggested wording.
Mr Jeffery said that the NPA should also look at this.
The Chairperson said that this clause would be flagged for further debate.
Mr Bassett pointed out that there were two options for this clause. Option 2, on page 22, seemed to find favour with the Committee during the June deliberations. However, the Option 1, which was set out on page 21, was introduced on the previous day, and the NPA and Committee then seemed to lean more in favour of this option.
Adv Nel said that the NPA preferred to the first option.
Mr Jeffery said that his main concern was that the heading wrong; it should be ‘Liability of Carriers with regard to Cross-border transportation’. He reminded Members that the Committee wanted to cover carriers who transported across borders, as well as internal carrying. The wording in this clause, however, related only to the cross-border trafficking situation, not the situation where victims were carried internally.
Adv Nel said that the provision could then rather refer to ‘a carrier who transports a victim’. This would be broad enough to cover both trans-border and internal trafficking.
Ms Schäfer suggested the following wording: ‘brings the victim of trafficking into, removes a victim of trafficking from, and transports a victim of trafficking within the Republic’.
The Chairperson agreed with this proposal. He stressed that it should also be a crime to transport victims within the Republic.
Major General Tertius Geldenhuys, Legal Division, South African Police Services, said that he agreed with Ms Schafer’s suggestion to use broader wording around transporting victims, to create the offence. The issue of transporting of victims would be particularly important when arguing, at prosecution stage, for consideration of aggravating circumstances.
Mr Bassett summarised that the Committee would then prefer to use the first option on page 21 as a basis for the phrasing, but there would be reference made to internal and external trafficking, as well as the reference to transporting the victim.
Mr Jeffery inquired about the inclusion of the word ‘repatriation’.
Ms Stuurman said that usually, when
Mr Swart asked if there had been consultations with the airlines.
Mr Bassett said that the Department had not had interaction with them as yet.
Mr Jeffery said that the responsibility lay with the carriers to make representations during the public hearings on the Bill.
Involvement in Trafficking of Persons
Ms Stuurman said that the aim was to keep sub-clauses (2) through to (6) in this clause.
Mr Jeffery said that surely this was supposed to apply to the trafficking section as well.
Ms Stuurman confirmed that it would apply to trafficking.
Mr Jeffery said that an accessory offence was being created under this clause, and any other offence in this Chapter. He said, therefore, that surely the provisions of subclauses (2) to (6) also had to apply to the main offence of trafficking, and not just the offence of the involvement in trafficking of persons. He suggested that either all these subclauses must be stated in respect of both offences, or they must be removed.
Clause 11: Proposed Penalty Clause suggested by NPA
Adv Nel said that the provisions set out in Clause 11(1) (a) were regarded as trafficking. Clauses 4, 6 and 17 referred to the ten-year term.
Mr Jeffery said the issues involved the offence of trafficking, adopting a child, and forced marriage for purposes of trafficking, and these were to be made subject to minimum sentences on conviction. This clause still had to be cross-referenced. The Committee had to decide if minimum sentences should apply to a forced marriage, and adoption of a child for purposes of trafficking. If a marriage was proven to be a forced one and not ukuthwala then he asked if minimum sentences would apply. He noted that the Committee must still discuss the issue of ukuthwala. The concern with minimum sentences in a case of a forced marriage was that an arbitrary case could come up, where a person could receive a minimum sentence, and he wondered if it would be wise to make minimum sentences apply to a man who, in his own mind, was practicing a traditional form of ukuthwala.
The Chairperson added that in some cases the parents could also be liable to have minimum sentences imposed on them.
Mr Swart said that the Committee had to be mindful that according to Section 51 of the Criminal Procedure Act, minimum sentences already applied in terms of the interim provisions of the Sexual Offences Act.
The Chairperson requested Mr Bassett to assist the Committee in this regard, even if his advice was given at a later stage.
Mr Bassett said that trafficking, as referred to in the Sexual Offences Act, under Section 1(1) (2) could attract the minimum sentence. Section 71(1) was the main trafficking offence. Any trafficking related offence by a carrier also fell in the minimum sentence category.
Adv Nel said that he agreed. The adoption and forced marriage aspects, however, did not seem to have minimum sentences apply.
The Chairperson said that the Committee would look at this further.
Factors to be Considered in Sentencing
Ms Schäfer asked if ‘suffered abuse and the extent thereof’ was not a duplication of paragraph (f) of this clause.
Mr Jeffery replied that the one related to the extent of the abuse, and the other related to the effect of the abuse.
Mr Pierre Smith, Deputy Head: Sexual Offences and Community Affairs (SOCA) Unit, NPA, said that the reason why the NPA had requested the addition under (g) was that direct trauma syndrome would have a psychological or even physical affect on the victim, depending on the extent of the trauma.
Chapter 3: Identification and Protection of Victims
Ms Schäfer said that she would have to revert to her DA caucus on the exclusion of lawyers from disclosing whether a person was a victim of trafficking, which was linked to lawyer-client privilege. Those who were compelled to disclose should not have too onerous a burden placed on them also to disclose confidential information.
Mr Jeffery said that the lawyers were totally excluded under sub-clause (2) because the attorney/client communications were privileged. However, there should be a duty of disclosure on doctors who examined a child victim.
Mr Swart said that the Committee had lengthy discussions on this issue. A professional code may exist that might cover Ms Schäfer’s concerns. The duty to disclose existed in other pieces of legislation, such as the Financial Intelligence Centre Act. This Bill was dealing with vulnerable trafficked victims, and there should be a duty to disclose.
Ms Schäfer asked why the definition of temporary safe care only applied in respect of adults.
Ms Stuurman said that the definition referred specifically to the clause in the Bill that related to adults. The safe care mentioned in this clause was only in relation to Section 152 of the Children’s Act.
Ms Schäfer said that the definition in the whole Bill was only applicable to adults, because ‘temporary safe care’ had a specific definition in the Bill, which applied to adult victims.
Ms Stuurman said that the definition of ‘temporary safe care’ specified that this was for purposes of Section 12.
Mr Jeffery referred to footnote 96, and said that he wondered whether the Committee had made the right decision. The Committee could insert the words ‘must’ and ‘may’, so that if a victim reported that she was being trafficked, then this must be reported. However, if the victim refused to report trafficking then the wording should read that it ‘may’ be reported.
Ms Schäfer said that the insertion of ‘must’ or ‘may’ did not solve the dilemma, as the issue was not to deprive the individual of her right to consent.
Mr Jeffery asked about the international approach to this issue.
Ms Stuurman said that the Kenyan legislation did not deal specifically with the issue of consent from the victim. The Domestic Violence Act provided for consent from the victim.
Mr Jeffery said that the Domestic Violence Act was different, because the victim was in a domestic situation, and may have to return to that situation.
Mr Swart was in agreement with the suggestion made by Mr Jeffery. He pointed out that it would be difficult to insert a requirement that consent ‘must’ be given. He pointed out that the victim was quite likely to have been intimidated by the traffickers, and would be unlikely to give consent, because she would know that her life would be under threat if it came out that her status as a victim of trafficking had been disclosed.
Mr Jeffery further suggested that if there was suspicion of trafficking, then the consent of the victim must be sought. However, if the victim refused to give consent, but the official believed, or had reason to believe, that the consent was being withheld because the victim was scared, then the official should report the matter. The Committee should have more information on international comparisons, as well as options for this clause.
Ms Schäfer said that she liked the second suggestion, and the concern of Mr Swart would seem not to apply if officials had to disclose whether or not consent was given.
Mr Jeffery referred to Clause 14 (1)(a)(i), as set out on page 32, and said that the police would be given the power to search without a warrant. In terms of clause 14 (1)(a)(ii) the police had to take a victim into protective custody.
Ms Stuurman said that this would be re-drafted.
Major General Geldenhuys said that SAPS preferred the words ‘obtain the consent of the victim’, because this would allow the police to encourage the victim to be removed by the police from certain premises if his/her life was in danger. If the words ‘upon the request of the victim’ were included, then the victim would have to take the initiative to request the police to take the victim with them, without being encouraged or asked for this, by the police officers.
Ms Schäfer said that she would have expected the Department of Social Development (DSD) to be responsible for the transportation of victims, and not SAPS.
Mr Jeffery said that SAPS had vehicles at each station, and it was more practical, even if SAPS did not have to transport the victim immediately.
Major General Geldenhuys said that the problem was that there were only 13 shelters, and in some provinces this meant that a person had to be transported more than 600 kilometres to a shelter. SAPS had thus requested the inclusion of a provision that a victim could be placed in a temporary place of safety. DSD pointed out that it would have to vet such facilities, would notify SAPS of its approval, and that the temporary place of safety would have to be within a reasonable distance from a police station.
Mr Jeffery said that SAPS had to take a victim to an accredited organization, or the nearest DSD office, of which there were many.
Major General Geldenhuys said that the point was that officers of DSD in some provinces were located only in the main centers, and the distances involved were immense.
Mr Jeffery said that information should be gathered as to where DSD offices were located.
Ms Stuurman said that one of the concerns of DSD related to the safety of victims whose lives were under threat, and whether, during the transportation, this would be the responsibility of officials, or of the police.
Major General Geldenhuys said that SAPS would render the protection. However, there was a difference between providing protection and actually transporting a person. In some instances transport could be provided by SAPS, but in others the victim could be transported in a DSD vehicle, but with police presence. Arrangements could always be made.
Mr Jeffery said that sub-clause (8) did not seem to make sense. Obviously the accredited organisation would request using the police as a last resort. There was no need to state this in terms, as the discretion already existed. If there was in fact a duty, then the word ‘must’ should be used.
Mr Jeffery felt that subclause 9(b) had been improved. However, the power to assess resided with the accredited organisations. The power to assess should be with the DSD. Currently, the Bill was catering for a small number of trafficked victims. Accredited organisations may take the view that the more victims they had, the more funding they would get. Government could not delegate this power away from DSD.
Ms Stuurman suggested that it should first be ascertained whether DSD was able to carry out this function.
Mr Jeffery replied that if it did not, then DSD must find a way to do it. This power, which has a lot to do with money, could not be delegated.
Ms Schäfer agreed and said that DSD should inform the Committee as to how it was going to implement, and could not inform the Committee that it did not have capacity.
Mr Jeffery said that the appeal mechanism in sub-clause (12) also had to apply in sub-clause (11). The victim must have the right to appeal against the provincial head’s decision. There must also be prescription periods set out for the appeal mechanism.
Mr Swart agreed that there should be prescription periods.
Mr Swart noted that in respect of sub-clause (16), the Committee had not reached finality during its previous deliberations as to whether police officials who failed to comply with the requirements of this Bill should be charged. It was necessary to bear in mind that there were internal disciplinary actions that could be taken against non-complying police members.
Mr Jeffery said that in the Protection from Harassment Bill the Committee expressly decided not to provide for criminal charges to be laid against police members who did not comply, or who were guilty of an offence. Should the Committee wish to provide for something different in this Bill, the Committee must have good reasons for doing so.
Ms Schäfer said that internal disciplinary processes of the police were not effective.
Major General Geldenhuys argued that the internal disciplinary hearings of the police were generally effective, although he could not say that this was so in respect of every single case.
Ms Stuurman said that there were two options set out for this clause, to cater for the situation where the court order from the Children’s Court might expire in respect of a child who was a victim of trafficking. The first option was that the child should be assisted to apply for refugee status. The second option was to have a child assisted to be given temporary residence status. The Department of Home Affairs preferred to have the first option apply.
Mr Jeffery agreed with the option selected by the Department of Home Affairs. The concern was that adults were classified as victims of trafficking, but it was not certain what would happen to the children. He asked who would be responsible for determining the status of children – and whether this would be done by the Children’s Court or the Department of Home Affairs.
Ms Stuurman said that clause 13 made reference to the Children’s Act, noting that such a child would be brought before the Children’s Court, who would then make the determination.
Mr Jeffery said that the clause referred to a child in need of care and protection. He said the main question was whether a child would get any benefits, when he or she was considered ‘in need of care and protection’ that could not be received by a child who was a ‘victim of trafficking’.
Ms Stuurman said that the provisions in the Children’s Act would also be applicable to child victims of trafficking.
Mr Jeffery requested more information on his previous question, as that would be a determining factor.
Mr Jeffery said that there seemed to be a gap here. He questioned what would happen to a victim who was in need of health care, as clause 16 did not seem to apply before a determination had been made that the person was indeed a victim of trafficking. He suggested that some interim provisions should cater for this situation.
Ms Stuurman said that DoJ&CD would consult with the Department of Health on this issue.
Mr Jeffery asked what exactly would be under discussion with the Department of Health.
Ms Suraya Williams, Principal State Law Adviser, Office of the Chief State Law Advisor, said that under Section 27 of the Constitution everybody had the right to access health care.
Mr Jeffery asked if that meant that clause 16 was irrelevant.
Ms Williams confirmed that essentially this was correct. Clause 16 was merely stated to re-enforce the provisions of the Constitution, for those who may not be aware of its existence.
Mr Swart said that the problem lay with foreigners who did not have any form of identification, meaning that no file could be opened.
Mr Swart said that where a child was being prosecuted, the Child Justice Act would apply, and a social worker would already be working on the case.
Mr Jeffery said that this clause had to be re-considered, as a child would have to wait for a decision by the Children’s Court, and this was a longer determination. He wondered why the DSD could not make a determination in relation to a child.
Mr Swart said that that was the point of the Child Justice Act. A social worker would compile a report and decide if the child was one in need of care, and then refer the matter to the Children’s Court.
Mr Jeffery said that the point he was making was that some determination was needed in respect of a child in conflict with the law. Currently, it seemed that the Children’s Court would determine if this child was a victim of trafficking, but that was too vague. He felt that DSD should be able to make the determination, as was done with adults.
Mr Swart said that the Committee should bear in mind the possible abuse of this process, where children who were being used by syndicates could claim that they were being trafficked. There had to be some form of accreditation.
Ms Schäfer said that she suspected that matters would move faster if the Children’s Court was involved, rather than with the involvement of the DSD.
Mr Jeffery said that the Children’s Court should continue to determine if a child was in need of care. The problem was that nobody was making the determination that a child was a victim of trafficking. Something had to be inserted in this clause, so that the prosecution could not proceed until after it had been determined whether the child was in need of care and had been trafficked. He said that perhaps this power should be given to the Children’s Court.
The meeting was adjourned.
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