Prevention and Combating of Trafficking in Persons Bill [B7-2010]: deliberations

Meeting report

Presentation of Working Draft on the Prevention and Combating of Trafficking in Persons Bill [B7-2010]
The Department of Justice and Constitutional Development (DoJ&CD or the Department) and South African Law Reform Commission (SALRC) tabled a new working draft of the Prevention and Combating of Trafficking in Persons Bill (the Bill) and took Members through the changes.

Clause 19
Ms Lowesa Stuurman, Researcher, SALRC said that the words “certified to be a victim of trafficking in terms of section 13(7)” had been added into  Clause 19(1).

Mr J Jeffery (ANC) asked at what level the Department had engaged with the Department of Social Development (DSD) on the time periods for the recovery and reflection of victims. He also asked for an indication of the time frames for reflection and recovery from other countries.

Ms Stuurman said that in Norway the reflection period was 3 months but the average reflection period, internationally, was three to six months.

Ms Musa Mbege, Director:  Families and Children, DSD, said that the discussions were held with the Chief Director (CD) and Deputy Director General (DDG), and this was where the directives emanated.

Mr Jeffery said that he would need to think about this. 

Clause 20
Ms Stuurman informed the Committee that because it had now decided to adopt the optional version of clause 15, on page 36, clause 20(1)(c) could be deleted. 

Dr M Oriani-Ambrosini (IFP) asked how a child qualified for asylum.

Mr Jeffery raised a point of order and said that the Committee had already dealt with this point last week, and he would prefer that Dr Oriani-Ambrosini not revert to matters that had already been discussed.

Clause 21
Mr Jeffery asked if the provisions in this Bill reflected those that were found in the Refugees Act, or whether they were different.

Ms Stuurman said that the Department had tried to formulate this provision along the same lines as the Refugees Act, which stated that a refugee need not prove that s/he could not go back to his or her country of origin, but that the Director General (DG) of the Department of Home Affairs (DHA) would make a decision based on whatever relevant information was available.

Dr Oriani-Ambrosini said that the provisions in Clauses 19-21 would have unintended consequences, as they had also in the Refugees Act.

Professor G Ndabandaba (ANC) asked for clarification as to where the DG would obtain his/her information when making determinations, and how objective this information might be.

Ms Stuurman referred to Clause 21(2) and said that everything pertaining to that question was spelt out in this clause.

Mr Jeffery said that the Committee had to be mindful of the concerns raised by Dr Oriani-Ambrosini. These were provisions that were required by the United Nations (UN) Protocol.

Clause 22
Mr Jeffery referred to Clause 22(1) and said that the word ‘referred’ should be used.

Mr Lawrence Bassett, Chief Director: Legislative Policy, Department of Justice and Constitutional Development, agreed with Mr Jeffery.

Mr Bassett said that the Department proposed that Clause 22(4) could be split, as different matters were dealt with in that current formulation and that a new sub-clause (5) would then be created.

Mr S Swart (ACDP) asked if there was any provision, in the form of a review, as to what would happen if an accredited organisation’s resources were depleted during the prescribed four-year period for which that organisation’s accreditation was valid. 

Mr Bassett said that there was a quality assurance process that had to be conducted, and such an accredited organisation may be removed from the system.

Ms D Schäfer (DA) asked if the quality assurance process was ongoing, and asked what would happen if  an accredited organisation complied with the norms and standards of the Department up to a point, but stopped doing so thereafter.

Mr Bassett said that these provisions were similar to those in the Child Justice Act, and the details to answering that question would be found in the Regulations to that Act.

Dr Oriani-Ambrosini said that one concern was that the accredited organisations would have a financial interest, in terms of their revenue. Another concern regarding clause 22(5) was that a duty was being imposed, without specifying whose responsibility it was to carry that duty. A specific organ or review panel could be identified for this purpose.

Mr Jeffery addressed the latter point raised by Dr Oriani-Ambrosini, and said that the power of determining the status of a victim remained with the Department. If an accredited organisation ran out of money during the four year period, then the provisions of 22(3)(c) would apply.

Members agreed that, in clauses 22(4)(a) and 22(6), the reference to “Minister” should be replaced with a reference to “Director General of Social Development”, as the provisions related to an administrative function.

Ms Schäfer asked how the provisions of clause 22(7), which were copied across from the Child Justice Act, were functioning in that Act.

Mr Bassett replied that the time periods specified in that Act could ideally be made shorter.

Mr Swart said that he supported the two-month period within which the Regulations must be tabled.

Mr Swart asked what the position would be of any state departments that were not accredited.

Ms Stuurman replied that if such departments wanted to be accredited they would have to apply.

Mr Jeffery said that the Regulations would have to be grouped together in one place. It would have been preferable to have the Regulations come into effect when the Act came into effect. If the stakeholder departments felt that they would need time for implementation, they should inform the Committee of this.

Mr Mandla Matapuma, Legal Services, DSD, said that his Department was busy with the Regulations and it would be necessary to allow for a period between publication of the Bill and the date on which it came into effect. He said that the two-month period was vital. The stakeholder departments should think about this and revert to the Committee.

Mr Bassett said that legislation of this nature was generally implemented in a conventional manner, after everything was finalised.

Mr Jeffery asked that the officials from the other departments should sit down together and come up with a proposal.

Ms Schäfer thought that clause 22(7)(b) had to be more specific.

Mr Jeffery agreed.

Mr Jeffery then pointed that under clause 22(8) the powers of the Minister had in fact been given to the DG, and it was important to bear in mind that only a Minister could delegate. He asked if the Department had considered the consequences that could flow from this, and, if not, asked that it should

Clause 23
Mr Swart asked why “State Security” was added under clause 23(1).

Ms Stuurman said that she would have to revert to the Committee with an answer on this point.

Clause 24
Mr Jeffery referred to Clause 24(1)(b)(i) and said that “rehabilitation” and “therapeutic” seemed to be two different concepts. He wondered why each could not be included separately under this clause. He further pointed out that it was necessary, in respect of subclause (ii) to use the word “may”, although it was correct to use “must” in respect of subclause (i). This provision was a general one, and DSD would be able to determine what capacity it had to provide for what was set out.

Clause 25
No proposals were made for this clause.

Clause 26
Mr Jeffery said he preferred this provision, as it now contained reference to the drawing up of a plan, and was broader.

Clause 27
No proposals were made for this clause.

Clause 28
Ms Schäfer asked why foreign victims were not covered in this section.

Ms Stuurman said that foreign victims were covered in other sections.

Chapter 6, Compensation
Mr Bassett referred to footnote 142, and said that the Department did not know in which direction to go with the provisions of this Chapter, as it was awaiting the views of the Committee.

Mr Swart said that the National Prosecuting Authority (NPA) had pointed out that there was nothing preventing victims of trafficking from claiming compensation, in accordance with Section 300 of the Criminal Procedure Act (CPA). He suggested that it would seem to make sense to make reference to the other pieces of legislation that provided compensation for victims of crime.

Mr Jeffery said that he was concerned about what was new in these provisions. He agreed with Mr Swart. If a totally new system was created then it would have to be taught anew to prosecutors, so for reasons of easier implementation it would better if an existing system was adopted

Advocate Gerhard Nel, Head: Special Operations Directorate, National Prosecuting Authority, said that the only difference between Section 300 of the CPA and the provisions of the Bill was to be found in clauses 29(1)(i) to (iv).

Mr Jeffery said that the procedures provided for in Section 300 of the CPA, and any other existing laws, should be mentioned specifically. The Department should revert to the Committee with anything that was different to what was set out in this clause.

Ms Schäfer said that many victims of other crimes also suffered what was specified in the Bill. She asked if it may not be unconstitutional to differentiate between victims of different types of crime.

Mr Swart said that he supported the provisions of the Bill. The Committee could not simply amend Section 300 of the CPA, as that would require a far more rigorous engagement. The Committee could, however, recommend to the Minister of Justice that attention should be given to the possibility of making Section 300 of the CPA wider (particularly for victims of sexual offences). Such a recommendation could be inserted in the Committee’s Report.

Mr George Hardaker, Asset Forfeiture Unit, said that victims of trafficking would not have direct access to the Criminal Assets Recovery Account Fund (CARA) as only law enforcement agencies or institutions established to assist victims of crime could access that Fund.  

The Chairperson asked if this would mean that accredited organisations would be able to access it.

Mr Hardaker replied that they would.

Ms Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor, said that the provisions of the Bill, including the provisions under discussion, were certified as complying with the Constitution.

Mr Bassett said that there were ramifications for proving matters such as life threatening diseases and psychological injury in court.

Dr Oriani-Ambrosini said that he did not see any justification for the differentiation between victims of crime.

Mr Swart said that the prosecution would have to lead quite a lot of evidence in proving the legitimacy of claims under the provisions of Clause 29(1). He thought that the NPA needed to comment on this.

Mr Jeffery said that these provisions were in the Bill, as introduced, so they would have been subject to a lot of scrutiny. The provisions were relevant, and they would probably be used to prove aggravating circumstances at the stage of sentencing.

Clause 30
Mr Jeffery said that this clause was an order for compensation to the state in terms of transportation, accommodation and repatriation costs. These victims were quite costly to the state, as compared to other victims of crime. The clause was satisfactory. Insofar as the forfeiture provisions were concerned, however, he questioned that surely the Prevention of Organised Crime Act (POCA) could be used. There may be unintended consequences if this was widened, and the POCA provisions could still be used for the forfeiture of assets.

Mr Swart said that this should be flagged for further discussion.

Mr Jeffery said that in the next meeting more information should be provided by the Department. If this was organized crime, then he wondered why POCA could not be used to charge perpetrators.

Mr Hardaker said that the asset forfeiture provisions did not specifically set out a procedure for the state or victim. The state or victim would have to institute a civil claim for property, which may be restrained or placed under preservation.

Adv Nel suggested that even people who were with the victims should be enabled to claim, so provision for claimants should be made.

Mr Jeffery said that the Bill provided for victims of trafficking, and he did not now think that the other individuals were necessarily relevant. This was not a civil provision but a criminal one. He suggested that if this provision were widened, it would become unmanageable.

Ms Schäfer said that the provision should not be extended to other persons, as only victims of trafficking should be provided for in the Bill.

Clause 31
Dr Oriani-Ambrosini said that this section prohibited “summary deportations” but not “deportations”, and asked what the difference was between the two. He also asked how this related to the previous provisions, which dealt with the right to residence.

Mr Jeffery said that he had the same concerns, and asked what the point was of this section.
 
Ms Stuurman said that the clause was inserted to make provision for the period before the DG of DHA stepped in under Clause 9. It was essentially to prevent victims from being deported.

Mr Jeffery said that if it was absolutely necessary, then these provisions should not be placed here, but rather under the section dealing with the status of foreign victims of trafficking.

Mr Bassett asked if this clause should not be moved to the portion of the Bill dealing with the ‘recovery and reflection period’.

Mr Jeffery said it would make more sense if it was in the portion that dealt with foreign victims of trafficking.

Clauses 32 and 33
There were no proposals under these clauses.

Clause 34
Mr Jeffery referred to Clause 34(a)(i) and asked why there had to be provision for the repatriation of South African permanent residents who were trafficked in other countries.

Ms Stuurman said that this was in the Trafficking Protocol, and the relevant section would be provided.

Mr Jeffery said that he had noticed that the Protocol referred to permanent residents as well.

Clauses 36 and 37
It was noted that these clauses would remain as previously worded.

Clause 38
Dr Oriani-Ambrosini said that he had a major problem with the involvement of the State Security (Intelligence) services in the investigation of crimes, and urged this should be the prerogative of the police alone.

Ms Schäfer said that it was not necessary to keep the reference to the National Intelligence Agency (NIA) in this clause.

Mr Jeffery said that he thought intelligence involvement might be necessary where, for instance, the South African ports of entry could be involved. He suggested that the Committee should try to avoid being too specific about enabling provisions, because some would be more relevant than not relevant. He asked whether in principle it was not desirable to have more, rather than less consultation.

Mr Jeffery also referred to Clause 38(6) and said that the wording should be “in consultation with” as opposed to “after consultation”.

Dr Oriani-Ambrosini said that he had a problem with directives and policies in general. A directive should not affect the rights and obligations of citizens, and should relate only to departments. Regulations should only affect citizens.

Ms Schäfer agreed with this point.

Mr Jeffery said that he preferred the option set out in the Bill. It spelt out sub-clause 2(b) and (c) on page 37 in greater detail.

Mr Pierre Smith, Deputy Head: Sexual Offences and Community Affairs (SOCA) unit, NPA, said that there was no reference to social context training, although this had been mentioned in both the Child Justice Act and the Sexual Offences Act. He suggested that this should be included in clause 38(8).

The Committee agreed. 

Clauses 39 to 41
There was no discussion on these clauses.

Clause 42
Ms Schäfer said that she was somewhat tired of hearing about the provisional two-year period in which the National Policy Framework ought to be drafted. She asked for the Department’s comments and views on the matter.

Mr Swart said that the Committee had experienced problems with the National Policy Framework for the Sexual Offences Act.

Ms Kamogelo Lekubu-Wilderson, Director: Victim Support and Specialised Court Services, DoJ&CD suggested that perhaps a period of one year could be set.

Mr Jeffery said that one year could be specified. The NPA and the Department should ascertain whether it was realistically viable.

Dr Oriani-Ambrosini said that he did not believe it was appropriate to include the provisions as set out in Clauses 42,43 and 44 in legislation. Officials of departments should not be forced to meet, whether there were issues to discuss or not. Once again, his comments also applied that it would be inappropriate for the Ministry of State Security to be involved.

Mr Jeffery said that Inter-Sectoral Committees (ISCs) were difficult to manage, and it must be asked whether there was really a need to have them. was there a need for them. There was nothing stopping departments from meeting, but he too questioned if this had to be set out in the legislation. He also wondered if there would be enough work, in light of the fact that there were not too many trafficking cases. He thought that the ISCs Child Justice and Sexual Offences were sufficient.

Mr Smith said that there were 34 cases, of which five had been finalised.

Ms Lekubu-Wilderson said that the Directors General who sat on the ISC had managed to work around their busy schedules to make provision for meetings. Issues were dealt with quickly at a DGs’ forum.

Mr Swart said that the Committee should give this more thought, before deciding not to have an ISC in this Bill. It was also possible that a sub-committee could be established instead.

Ms Schäfer said that she was leaning more in favour of not having the ISC specifically provided for in the Bill. If officials were meeting in any case, then there was perhaps not a need to formalise this in the legislation.

Dr Oriani-Ambrosini said that the statistics for trafficking were miniscule when compared to the statistics for other crimes, and he felt that too many structures and too much time was being devoted to this problem, when this could be better used where it was more needed.

Mr Swart said that the Committee should be careful about describing the problem as “minuscule” on the basis of statistics. It was well known that there was a problem with accuracy of data.

Ms S Sithole (ANC) agreed.

Ms C Silkstone, Committee Content Advisor, asked how many victims were involved in the 34 reported cases.

Mr Smith said that he would provide the information but there were far more victims than 34..

The Chairperson said that the issue of the ISC would be flagged. 

Mr Jeffery said that the reporting requirements should remain in the Bill.

Ms Schäfer agreed. 

Clause 43
Mr Jeffery said that the provision of an annual report should not be a problem, given the number of cases.

Clause 44
Ms Schäfer asked if there was any legislation that compelled professionals to disclose information relating to their patients, and also asked if there were any international guidelines. She asked that the Department should come back with more information in this regard.

Mr Jeffery said that the wording of clause 44(2)(b) should be included under clause 44(2)(a). There should be a deeming provision under clause 44(4), with an option. 

Mr Jeffery asked which regulations would require there to be a criminal sanction. It was not quite clear from the wording in front of the Committee.

Ms Stuurman referred to footnote 171, and said that the amendment was included at the Committee’s request.

Mr Jeffery said that if Mr Bassett and Ms Stuurman could find regulations that required criminal sanctions, then they should inform the Committee. Ms Stuurman and Mr Basset were also asked to determine whether there was a need for so many delegations. If not, then this would be covered in the Public Service Act, which contained a section on delegations.

Mr Bassett noted that this took the Committee to the end of the main portion of the Bill. The rest of the Working Document dealt with the schedules.

The meeting was adjourned, to resume in two weeks’ time.