Prevention and Combating of Trafficking in Persons Bill: deliberations

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Justice and Correctional Services

05 September 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development worked through the Working Draft of the Prevention and Combating of Trafficking in Persons Bill (the Bill), prepared by the Department of Justice and Constitutional Development (the Department). At the outset, the Chairperson reported that the Minister of Home Affairs had expressed concern on some clauses, and it was agreed that the Committee would, for the moment, leave aside clauses relating to refugee status of trafficked victims, the granting of temporary residents and any other duties imposed on the Department of Home Affairs. A Member of the Committee expressed his reservations about this, stating that the Bill should not be unduly delayed because of the consultation process, and that if necessary certain clauses could be made applicable only at a later stage.

In discussing the definitions, the Committee expressed concern about the inclusion of government organisations under Clause 1, as this was not provided for elsewhere in the Bill. The Committee was of the view that forced marriages were covered in the Bill but ukuthwala was deliberately not addressed by the Bill. In respect of clause 4A, the Committee expressed concern about the proposal of the NPA that it should be able to persons whom it suspected of living above their means, due to proceeds gained from trafficking. This was felt to be too wide, and the Committee questioned if this same principle could be applied to other offences. The Committee commented that if a similar provision was already in the Prevention of Organised Crime Act (POCA), there was no reason to insert it here. The Committee noted the removal of “debt bondage” from clause 4, in line with the Kenyan model. However, the Committee was concerned about the proposal from the National Prosecuting Authority to include “directly or indirectly” under Clause 4. A Member said that “indirectly” was too vague and broad, and it was already covered under conduct-facilitating and involvement, elsewhere in the Bill. The Committee decided that for the moment, the phrase “directly or indirectly” would be removed from the main body of clause 4, and inserted under subparagraphs (i) and (j), but that the matter would only be revisited if the NPA could provide examples of specific instances in which conduct could take place “indirectly” that was not already covered elsewhere.

The Committee agreed to re-insert the reference to an “attempt” under Clause 10(b). When considering the sentences, the Committee decided that minimum sentences should not be made applicable to offences committed under clause 4(2), as this could sentence men who practiced forced marriages to life imprisonment. A Member expressed concern at the National Prosecuting Authority’s 15-fold increase of the fines in the penalty provision. Another Member pointed out that under 13(e) it appeared strange to have a R3 million fine or a one-year period of imprisonment, and questioned whether this might not create a legal problem. Members requested that more work be done on the rationalisation of fines and periods of imprisonment.

The Committee reiterated that only the Provincial Department of Social Development (DSD) should conduct assessments in determining whether a person was a victim of trafficking under Clause 15, and not designated organisations.  The Committee debated at length on the issue of whether it should be a requirement for professionals to report that a person was a victim of trafficking. It was agreed that the Committee had to hear research based on South African law on this issue, before weighing up the options. In respect of clause 16, the police and South African Law Reform Commission noted that victims were generally reluctant to give consent and suggested that there should be no absolute requirement for consent. A Member commented that now 50 cases in the Western Cape were being used as a study, whereas the police had initially informed the Committee that “very few” occurred in this province.

The Committee requested that the time periods in clause 19 should be made consistent with other provisions dealing with appeals. Changes had been effected to the wording of clauses 25 and 26 as requested by the Committee. Under clause 28, the Committee questioned the reference to “future or long term needs” and debated whether the clause reflected the DSD concerns. The DSD agreed that the wording may need to be reconsidered. Members felt that witnesses who had exited a care plan should be afforded witness protection, and should not find themselves without access to accommodation and support. The Committee felt that the proposal from the National Prosecuting Authority under clause 30A was too broad and might be constitutionally challenged, which would delay convictions. The Committee was of the view that where forfeiture of assets was concerned, the provisions of POCA should be used.

Meeting report

Prevention and Combating of Trafficking in Persons Bill [B7 – 2010]: Committee deliberations on Working Draft
The Chairperson informed Members and officials from the Department of Justice and Constitutional Development (DoJ&CD) that he had received a call from the Minister of Home Affairs expressing concerns about the duties that the Prevention and Combating of Trafficking in Persons Bill (the Bill) sought to impose on her Ministry and Department. She complained that her Ministry and the Department of Home Affairs (DHA) were not adequately consulted. She added that the Department of Home Affairs was in the process of reviewing the Refugees Act and related legislation; and there were concerns that this Bill would negate DHA’s efforts. The Chairperson suggested that for the moment the Committee should not consider clauses dealing with the refugee status of trafficked victims, the granting of temporary residence and any other duties imposed on the Department of Home Affairs, until the Committee had had a chance to discuss matters with the Minister of Home Affairs.

Mr S Swart (ACDP) said that it was disappointing to hear this, 18 months down the line. The consultation process should be finalised as soon as possible, and if necessary perhaps a transitional provision could be included to delay the operation of certain clauses. The Committee should finalise this Bill as soon as possible.

Ms D Schäfer (DA) said that it was quite strange that the Minister had raised concerns only now. She suggested that this must be addressed within a set time frame, as it was accepted that the Ministers concerns should be taken into consideration.

The Chairperson said that he would try and deal with the matter expeditiously.

Mr Lawrence Bassett, Chief Director: Legislative Policy, DoJ&CD, said that in August he had told the Committee of a meeting between the Deputy Minister of Home Affairs and officials from the DoJ&CD. There were in fact consultations with all the departments involved during the South African Law Reform Commission (SALRC) process. The DoJ&CD had also tried on numerous occasions to get officials from the Department of Home Affairs on board, but experienced difficulties in this regard.

Mr J Jeffery (ANC) said that this was not a major issue as the question of the status of foreign trafficked victims had not yet been resolved.

Members then turned to consideration of the clauses in the Working Draft of the Bill.

Clause 1
In respect of the “Accredited Organisation” definition, Mr Jeffery said that there had to be another way for government organisations, who provided a similar service as accredited organisations, to be dealt with in this Bill. He suggested that the issue be flagged for now but that thought needed to be given in the meantime to the wording.

In respect of the definition of “Exploitation”, Mr Bassett said that references to forced marriages had been taken out as requested by the Committee.

Ms Lowesa Stuurman, Researcher, South African Law Reform Commission (SALRC) said that the definition of “Provincial Department of Social Development” was taken from the Children’s Act.

Mr Bassett noted that the words “the possession of” had been deleted from the definition of “Removal of Body Parts”, as requested by the Committee.

Mr Bassett noted that in the definition of ‘sexual Exploitation”, the option that the Committee preferred had now been inserted.

For the definition of “Temporary Safe Care”, Option 2 had been inserted, as the Committee had requested.

The Chairperson said that the issue of ukuthwala had been in the public domain, even though it had been addressed in the Bill. The Committee should flag it for now.

Mr Jeffery said that this has been covered, the Bill did not relate to ukuthwala. Forced marriages were covered in the Bill.

Mr Swart asked if a decision was taken on the definition for “consent”, but then noted that the Committee may not need to take a decision on it.

Chapter 2, Clause 4A
Mr Jeffery said that the concern with the insertion by the National Prosecuting Authority (NPA) was that it may have gone too far. It was a wide power for the NPA to investigate persons where it was suspected that they were living above their means due to proceeds gained from trafficking. He wondered if then the same reasoning could be applied to other offences such as poaching, or drug smuggling.

Mr Swart said that he would like to hear from the NPA on this matter. The Committee would support any measures that would facilitate the prosecution of trafficking, but these had to be balanced against other crimes. The NPA should indicate precisely how this might assist its prosecutions.

Ms Schäfer agreed with Mr Jeffery.

Mr Bassett said that during the Department’s discussions with the NPA he had echoed the Committee’s sentiments.

Advocate Gerard Nel, Office of the National Director of Public Prosecutions, said that the provisions of this clause were a combination of sections 28 and 29 of the NPA Act. The main objective was not just to use this provision during criminal prosecutions, but also to prevent the crime, and this provision could be used to allow the NPA to start taking a closer look at syndicates and their activities. Although this provision was taken from the corruption legislation, the provisions of that also applied to proceeds of unlawful activities, and this could well include other crimes like poaching. He stressed that corruption and organized crime were most likely to be involved in all instances of trafficking. The legislation pertaining to the Directorate for Priority Crimes Investigation(DPCI/Hawks) also allowed for the head of the Hawks to approach the National Director of Public Prosecutions (NDPP) and use Section 28 and 29 of the NPA Act. The provisions proposed in the Bill were nothing new. In the past, prosecutors had not used this power as much as they should have, and there was training ongoing to encourage them to use it.

Ms Schäfer said that Adv Nel had given the Committee every reason to not include the provision in this Bill, by saying that it already applied in other legislation. Most trafficking that occurred fell under organised crime activities, and the Prevention of Organised Crime Act (POCA) would apply anyway.

Mr Jeffery said that it was understandable for the NPA to want as much power as it could get, but agreed that the anti-corruption legislation could be used. He believed that it would be dangerous to give the NPA such a wide power if it had not been used and tested sufficiently in other cases. A further concern was that this power was not included in the Bill as introduced, and thus had not been subjected to public scrutiny and comment during the public hearings.

Adv Nel said that there was a difference between the proposal in the Bill and that of other legislation. In other legislation, the request would be made to the police whereas in this legislation it would be to the Director of Public Prosecutions (DPP), which meant that NPA would thus not have to wait before commissioning an investigation. However, the NPA would abide by the Committee’s decision.

Clause 4
Mr Bassett said that the Committee had approved the Kenyan model, which was currently in the Bill, and references to Debt Bondage were removed as requested.

Mr Jeffery said that the other issue in relation to this clause was whether trafficking could be committed “directly and indirectly”.

Mr Bassett said that he could not think of an example where an offence of trafficking was committed as a result of something that was done indirectly.

Mr Jeffery said that the question related to proof, and this could include an omission.. An omission was already covered in the Bill, under Clause 2(3). The use of “indirectly” was too vague and broad. In any event this concept was already covered under the conduct-facilitating and involvement provisions.

Ms Schäfer asked if this was a serious concern. If there was anything that indirectly contributed to trafficking, then surely it should be covered in the Bill, and she would prefer to err on the side of broadening the scope of the Bill.

Mr Bassett” said that the Department’s view was that it would not do any harm to leave “indirectly” in the Bill.

Mr Jeffery said that this was too vague, and the examples given involved corruption and taking of an advantage, directly or indirectly. He asked how it would be possible to “indirectly” recruit a person for trafficking purposes in a situation that was not already covered under involvement. He heard the concern that this would apply in corruption cases where there was an indirect benefit received. However, the provisions on involvement would cover that, and this dealt with physical things, not indirect benefit.

Ms Stuurman said that the NPA had based the provision on the Kenyan model. The Kenyan trafficking legislation did not use the word “indirectly”.

Adv Nel clarified that the proposal from the NPA to use “directly and indirectly” was not based on the Kenyan or corruption legislation. There were plenty of examples of other legislation where this was, however, used. The United Nations (UN) Convention made provision for trafficking to take place “directly and indirectly”. In the POCA and anti-terrorist legislation, and generally in all organised crime legislation, similar provisions were found. He thought that it was necessary also to make provision for any unforeseen circumstances, and avoid any loopholes.

Mr Jeffery said that the Palermo Protocol did not refer to “direct or indirect”. The law had to be clear, and he asked if any examples could be given where someone had committed the offence of trafficking in persons by doing something “indirectly”, which was not already covered in the involvement and conduct facilitating offence.

Adv Nel said that it was difficult to come up with an example, as already pointed out by the Department. He did not agree with the comment on the Palermo Protocol, as it included a clause referring to “Organising or directing other persons to commit an offence”. He pointed out that an example of something being done indirectly might be posting something on Facebook.

Mr Jeffery said that the Facebook example was covered under facilitating.

Adv Nel asked what the court’s view would be if it dealt with legislation that provided for “directly and indirectly” and then all was suddenly confronted with a Bill where the legislator had removed “indirectly”. This could be interpreted as meaning that the legislature no longer wanted intermediaries to be covered. He pleaded that there should be consistency across all the legislation.

Mr Jeffery repeated that intermediaries were already covered under conduct facilitating or involvement. This was not in the original Bill, but was a new NPA proposal, and he was not sure that it was correct to create a crime when it was not certain what that crime would entail. He reiterated that the Palermo Protocol did not provide for “indirect” actions.

Adv Nel maintained his view that there was nothing wrong with the provision, and said the Committee had to be consistent.

Mr Jeffery said that the provisions in POCA were intended to address corruption. The NPA proposal amounted to a “blunt club”, as the provision was meaningless. In addition the anti-terrorism and corruption legislation was not consistent with the proposal from the NPA.

Adv Nel read out from a Supreme Court of Appeal (SCA) decision, where it was stated that the Court agreed “that …the definition of proceeds of unlawful activities in Section 1(1) includes benefits received directly or indirectly, which in its ordinary meaning includes benefits obtained indirectly through another person or entity”.

Mr Jeffery said that the case referred to a benefit, which could indeed be indirectly received. The NPA’s proposal, however, referred to an “indirect” commission of an act. He insisted that the NPA, in order to persuade the Committee, would have to come with a relevant example that showed an act being committed indirectly.

Mr Swart said that the Committee should flag this issue until the NPA could come up with an example.

Ms Schäfer suggested that if necessary, the words “directly or indirectly could be added after the reference to giving or receiving payments, under (i) and (j)

Mr Jeffery felt strongly that “directly or indirectly” should be removed, and then the proposal from Ms Schäfer could be adopted under (i) and (j).  He still maintained that the NPA must provide further motivation. Until that was provided, the Committee should not revisit the issue.

The Chairperson agreed.

Mr Bassett asked if the Committee would not want 4(2) to be a separate penalty offence, as it dealt with forced marriages and adoptions.

Ms Schäfer said that this could be flagged. Bearing in mind that the Bill dealt with trafficking, a forced marriage would have to be in relation to trafficking.

Clause 5
Mr Jeffery said that mens rea (intention) was a requirement for any crime including a statutory crime.

Mr Bassett said that word “intentional” was used often in legislation such as POCA, the Rome Statute, and the Criminal Procedure Act (CPA).

Mr Jeffery said that he would withdraw that comment, as it was also in the introduced Bill.

Adv Nel suggested that the word “intentional” should be removed, as it was not used in similar legislation.

Mr Swart said that the word had been inserted in other legislation, as it referred to a very specific intent. This might, however, be more difficult to prove than the more general mens rea and the question was whether it was desirable.

Mr Jeffery said that one had to intentionally engage in conduct, and it was not possible to inadvertently engage in this conduct. Nothing would be lost if the provision remained as it was.

The Chairperson agreed that this would not be altered.

Clause 9
Mr Bassett said that the clause now read: “A carrier, which transports a person within or across the borders of the Republic, and which knows that the person is a victim of trafficking or ought reasonably to have known that the person is a victim of trafficking, is guilty of an offence”.

Mr Jeffery said that he was happy with clause 9(1) save that the word “which” should read “who”.

Mr Swart referred to clause 9(5) and said that his understanding was that it would be the state that would pay the carrier for the transportation of a victim and would seek compensation later.

Mr Bassett agreed.

Ms Schäfer said that what Mr Swart had outlined had to be clearly stated in the Bill.

Ms Stuurman said that the court would make an order for the convicted person to pay for the return of the victim. The initial payment, however, would come from the state.

Clause 10
Ms Schäfer said that a reference to “organise” should be included under Clause 10(b).

Adv Nel said that the Committee had to be mindful of the fact that under the penalties clause an attempt to traffick had the same sentence as the actual offence of trafficking. He was raising this point because the reference to “attempt” had been removed from this clause.

Mr Bassett suggested, and the Committee agreed, that the “attempt” should be re-inserted.

Mr Jeffery asked if “organise” was not already covered under Clause 8, which dealt with “Conduct facilitating the Offence of Trafficking”.

The Chairperson agreed that it was, and thought that perhaps it was not necessary to include it here.

Clause 11
Mr Bassett said that there were no changes from the last discussion.

Clause 12
Mr Bassett said that there were no changes from the last discussion.

Clause 13
Mr Bassett said that the NPA had drafted a new version of this clause. The consequence of this penalty clause was that someone who was guilty of the offence of a forced marriage would be convicted for life imprisonment.

Mr Jeffery said that he was worried about the offence as outlined in clause 4(2) being made subject to minimum sentence. He asked if the Committee really intended to send men who had forced girls into marriage to life imprisonment.

Ms Schäfer asked if his objection meant that the Committee should be seen as supporting forced marriages. She pointed out that a judge could deviate from a minimum sentence if exceptional circumstances were deemed to exist. She noted that in many cases the traditional practice of ukuthwala has been abused and not practiced properly.

Ms D Smuts (DA) said that this issue has been discussed with the South African Human Rights Commission (SAHRC) and it was clear that ukuthwala was discussed and viewed differently in different regions where there was an understanding of what was going on.

Mr Jeffery pointed out that forced marriages were already noted as a crime in the Bill. The issue at hand was the penalty that should be imposed. He reiterated that application of a minimum sentence for the offence of a forced marriage was too harsh.

Ms Smuts said that she agreed with Mr Jeffery.

The Chairperson noted the Committee’s general view that minimum sentences would not apply to Clause 4(2) 

Mr Bassett asked what penalty should be applied under Clause 4(2).

Mr Jeffery said that this clause should merely mentioned liability without attempting to prescribe a sentence.

Adv Nel pointed out that where the Bill prescribed minimum sentences, the NPA did exactly the same in its version of the penalty clause. The NPA merely matched the sentences with the various clauses where they applied. A higher penalty was proposed where it was in line with other legislation. 

Mr Swart said that he fully supported the principle of higher sentences. However he questioned why, under clause 13(e), the amount of R3 million was stated as the fine, but only one year as the penalty; this seemed to be a huge disparity and it might cause a legal problem.

The Chairperson asked what the offence was, and Mr Jeffery noted that this was a failure to report.

Adv Nel said that currently the comparative figures used for sentences of one year’s imprisonment would be a fine of R20 000, under the Adjustment of Fines Act.

Mr Bassett said that the Adjustment of Fines Act was usually used in the lower courts. However, these would normally be heard in the High Court. He did not think that such a large disparity would be a legal problem.

Mr Jeffery noted that this represented a 15-fold increase on the fines in the Bill as originally introduced, and he questioned by the NPA had proposed such a large increase.

Adv Nel said that, to put things into perspective, the POCA legislation prescribed a fine of R1 billion for racketeering. He thought that it had to be recognised that offences involving children deserved very serious fines.

Mr Jeffery said that this rationale did not seem to apply to the lesser offences as well as it did to the more serious ones. The fines and sentences for lesser offences did not seem to be consistent.

Ms Schäfer said that the offences were not of a minor nature. She pointed out that a failure to report that a child or woman had been trafficked could be punished with a maximum penalty. The courts still had a discretion.

Mr Jeffery said that he was worried about the rationality behind a 15-fold increase, and thought that this needed further consideration

Clause 14
Mr Bassett said that there were no changes from the previous discussion.

Clause 15
Ms Stuurman said that the phrase “or other disciplinary action” had been included under 15(3)(b). Under 15(4)(1), the reference to Clause 7 or 8 had been deleted and there was now reference to “8(1)(b) or (2)(b) or 9(2)”. Clause 15(6) now read: “The Provincial Department of Social Development must, in its investigation referred to in section 110(5) of the Children’s Act, without delay, in the prescribed manner, assess whether the child concerned is a victim of trafficking”.

Mr Jeffery said that he did not understand the reference to children.

Ms Stuurman said that the accredited organisation and Provincial Department of Social Development would assess whether a child was a victim of trafficking. For adult victims, only the Provincial Department of Social Development would make that assessment.

Mr Jeffery said that the Committee wanted the assessment to be done by the Provincial Department of Social Development, and no one else.

Mr Bassett said that the Department of Social Development (DSD) wanted a designated child protection organisation to be involved in cases where children were concerned, in line with section 110 of the Children’s Act. The Department did not feel that this was viable, given the Committee’s concerns.

Mr Jeffery said that the way the clause was worded seemed to suggest that it was only a Provincial Department of Social Development that would do the assessment. He noted that in a discussion with the Minister of Social Development, she had indicated that she would be satisfied with the duty being assigned only to Department of Social Development (DSD).

Mr Mandla Mathaphuna, Director: Legal Services, DSD, said that the Committee’s points had been noted. DSD was just noting the reference to Section 110(5) of the Children’s Act, which also specified that a designated child protection organisation could do the assessment.

Ms Schäfer suggested that the reference to Section 110(5) of the Children’s Act should be taken out, but asked how this would impact on the rest of the Bill.

Mr Jeffery suggested that the clause should read: “The provincial department of social development must, without delay, in the prescribed manner, assess whether the child concerned is a victim of trafficking”.

The Committee agreed.

Ms Schäfer questioned the use of the word “other” under Clause 15(3)(b).

Mr Swart said that he thought the Committee had agreed that the police would not be criminally charged.

Mr Bassett said that the Committee had wanted to think about this matter some more, but the indications from Members during discussions seemed to veer towards not charging the police.

Mr Jeffery said that the Committee had decided not to subject police to criminal sanctions in the Protection from Harassment Bill, and thus had to be consistent in this Bill.

The Chairperson agreed and stated that Mr Jeffery’s statement could be taken as the Committee’s position.

Clause 16
Ms Stuurman noted that Option 2, as recorded, was the only new addition under the clause. DSD was concerned about social workers having to obtain written consent, as social workers sometimes did field work and may not have forms with them, so it was suggested that merely providing for “consent” would be more practicable. Clause 16(1)(c) allowed for some exceptions.

Ms Schäfer recalled that she had asked for some examples where a duty of disclosure was imposed on professionals.

Ms Engela Steyn, State Law Adviser, Office of the Chief State Law Advisor, said that the Collective Investment Controls Act of 2002 placed a duty of disclosure on an auditor. The Drug Trafficking Act of 1992 and POCA placed a duty on an office bearer to disclose corruption. The Auditing Profession Act of 2005 similarly placed a duty of disclosure. The Children’s Act, under section 110, provided that “any immigration officer, a labour inspector, social worker, social service professional, medical practitioner, nurse, traditional health practitioner, nurse, midwife, legal practitioner, occupational therapist, religious minister, psychologist, religious leader, speech therapist, teacher, social worker, member of staff or volunteer” must report where a child had been abused.

Mr Jeffery said that Option 1 seemed preferable. This was the obligation to report. He asked if consent would be required for adults.

Ms Steyn said the only other category where consent would be required was for persons who were mentally disabled.

Mr Jeffery asked if there was an obligation to report an offence of this nature.

Ms Stuurman said that she could not find any examples.

Mr Jeffery said that what had to be considered by the Committee, in respect of adults, was whether there was a duty to report and whether the consent of the victim would be required. There was probably an assumption that adults could report for themselves. This was obviously different in the case of trafficked victims, as they may not be in a position to report.

Ms Schäfer said that the concern was that the consent of an adult should not be removed. The Committee had to find a balance between not taking away the right to consent, and the need to protect victims.

Ms Suraya Williams, State Law Adviser, DoJ&CD, said that when the Bill was certified, the research had shown that in other jurisdictions the word “may” was used, rather than “must”. This meant that professionals were not compelled to report.

Ms Stuurman said that she had not come across any country where written consent had to be acquired and the insertion in the Bill was based on submissions made at the public hearings.

Mr Jeffery said that the issue was not so much related to the consent, but rather whether there was a duty to report. The Committee had to have research based on South African law, that was relevant. The Committee would then weigh up its options.

Ms Schäfer agreed and said that at the moment she was inclined to prefer Option 2.

Mr Swart agreed that there was a need for further examples. Option 2 captured a lot and it may well be the preferred option.

Lieutenant Colonel Enus, Senior Specialist, DPCI, said that in the field it was difficult to obtain consent, and it would be problematic if this were to be made into a specific requirement. Over the last 50 cases of human trafficking in Western Cape, it was clear that it would not be possible to obtain consent from the victims, and he stressed that it was simply not practical to have this requirement.

Ms Schäfer said that Option 2 might cover the point raised by Lt Col Enus.

Mr Swart asked Lt Col Enus if Option 2, under clause 16(1)(c), would cover the situation on the ground.

Lt Col Enus said that it would. He reported that results similar to those set out in subparagraphs (i), (ii) and (iii) had been apparent in the 50 cases from the Western Cape.

Professor G Ndabandaba (ANC) said that in the studies on victims that were conducted at the University of Zululand, most victims were reluctant to give consent.

Ms Schäfer said that it was interesting that when the Committee had requested statistics from the police, they had reported “few” cases in Western Cape, yet now there was mentioned of 50 cases.

Ms Stuurman informed the Committee that other changes that had been made were the insertion of the word “refer” instead of “notify”. Under sub-clause 6(b) the words “or Provincial Department of Social Development” had been deleted. The request by the Committee to not have an accredited organisation conducting assessments had led to the amendment, so that the clause now read: “The Provincial Department of Social Development, which has been notified as provided for in sub-section 4(b), must without delay and in the prescribed manner assess whether the child concerned is a victim of trafficking”. Sub-clauses (11) to (13) provided for an appeal mechanism.

Mr Jeffery said that the 14-day period was a problem where the victim was deciding whether she wanted to appeal, under sub-clause (14). It would be necessary also to cover those individuals whose applications had been rejected by the Head of Department (HOD) but who had not yet lodged an appeal to the Member of the Executive Committee (MEC).

Mr Swart said that this section covered a lot and it would have to be split up into specific clauses dealing with reporting and with appeals, otherwise it became too cumbersome. He suggested that, at the very least, the provisions around appeals had to be in a separate sub-section.

Clause 19
Mr Jeffery said that there should be a specified 14-day period, as this involved another appeal and the Bill had to be consistent with the time periods for appeals. This clause had to be consistent with the Committee’s request that only a Provincial Department of Social Development should conduct assessments. DSD should also coordinate the process with prosecutors, where a prosecutor realised that a child or adult was in fact a victim of trafficking.

Mr Bassett said that this would transpire during the Preliminary Inquire set out in the Child Justice Act that a child was a victim of trafficking and not at the criminal trial stage, so the prosecutor would know before the case started.

Clause 25
Ms Stuurman said that under sub-clause (6) the phrase “Director-General of Social Development” had been used, in line with the Committee’s request. The correct reference for the Department of Women, Children and Persons with Disabilities was effected. The original clause 26 was moved up, to become a new clause 25(4).

Clause 26
Ms Stuurman said that the word “counseling” was used and “psychosocial care” was deleted as DSD had said that not all accredited organisations would be able to provide this. “Therapeutic” and “rehabilitation” were included as per the Committee’s request.

Clause 27
Ms Stuurman said that this clause now read: “A person who has been certified to be a victim of trafficking in terms of section 13(7), issued with a letter of recognition, or a person referred to in section 16(14) is entitled to access to a programme offered by an accredited organisation.

Clause 28
Ms Stuurman said that this clause now read: “An accredited organisation must, having due regard to the views of a person who has been certified to be a victim of trafficking, in terms of section 13(7), issued with a letter of recognition, draw up a plan to address the immediate and long-term/future needs of that victim”.

Mr Jeffery asked why DSD had wanted a reference to long term needs.

Ms Tsholofelo Moloi, Director: Victim Empowerment, DSD said that the DSD’s specifications included long; medium and short term needs. Long term programmes did include a clear exit strategy. The use of “long term” did not mean that a person would reside indefinitely at a facility.

Mr Jeffery said that the Bill was referring to needs or future needs, and not to exit plans. The use of “long term/future” needs therefore would not seem to address the DSD’s concerns. The question of what reasonable long term needs would be had to be taken into account. Aside from this, he commented that there was little difference in meaning between “long term” and “future”.

Ms Stuurman referred to Clause 26 and asked if the exit plan would not form part of the re-integration with their communities.

Mr Jeffery said that there may be a need to make specific reference to exit plans in this section.

Mr Mathaphuna agreed that it might be necessary to clarify a few things. It could also be specified what a care plan entailed, perhaps in the Regulations.

The Chairperson said that there had to be an exit plan and the victim concerned had to be notified from the outset.

Lt Col Enus said that the Committee should take cognisance of the fact that some of the victims would be witnesses and any exit plan would have to take this into consideration. Some victims might be ready to exit only when the court case was concluded.

The Chairperson asked if witness protection would not assist.

Lt Col Enus said at this stage victims did not qualify because there had to be proof that the victims were in serious personal danger. SAPS could not prove this.

Ms Schäfer said that this had to be addressed in the Bill. There had to be a specific provision for victims who exited a care programme to be part of witness protection once they had received a letter of recognition.

Mr Jeffery said that the Witness Protection Act was in place to cater for witnesses. Lt Col Enus was stating that the victims had no accommodation once they had been trafficked, but they did not qualify for witness protection because they did not need it. If this was so, then the position of a person referred to in clause 16(14) could be excluded from clause 27. In the section dealing with appeals it could be specified that the victims were still entitled to accommodation. It was not possible simply to deny the victims accommodation or support.

Mr Bassett said clause 16(14) already dealt with temporary accommodation.

Lt Col Enus said that what had been happening in practice was that where it was not clear whether a person was a victim of trafficking, the Non-Governmental Organisations (NGOs) with whom the police worked would be willing to accommodate the individual, until such a time that her status could be determined.  

Mr Jeffery said that the individuals that Lt Col Enus was referring to were already recognised, and their accommodation was required for some length of time. He reiterated that the provisions referring to clause 16(14) should not appear here.

Ms Schäfer said that this was an important issue and it was undesirable that victims of trafficking who were witnesses might not be granted accommodation, or that nobody should be obliged to take responsibility for their accommodation.

Clause 29
Mr Bassett said that the Department had specified that section 300(2), (3) and (4) of the Criminal Procedure Act (CPA) applied, following the request of the Committee. Sub-clause (5)precluded a person in whose favour an award had been made from instituting a civil action, in accordance with the CPA.

Ms Schäfer asked if the High Court was not dealt with at all.

Mr Bassett said that the Department had referred to “a court” so that would mean any court. Section 300(1) of the CPA referred to Superior Courts, which would include High Courts. Sub-clause (2) provided for a civil remedy, where a Magistrate’s Court could only make an award of a lesser amount if the claim for compensation exceeded that amount.

Mr Swart said that the provision was fine.

Ms Schäfer asked how much was gazetted at the moment for compensation

Mr Bassett said that it was between R100 000 and R300 000 at a Regional Court. The exact figures could be obtained and passed on to the Committee.

Adv Nel said that the NPA supported the provision.

Clause 30A
Mr Bassett said that he was not sure what the NPA or Asset Forfeiture (AFU) wanted to have included in this clause.

Mr Jeffery asked why there was considered to be a need for this clause, as he thought that all it was doing was repeating aspects of the POCA in this Bill. He thought that organised crime activities should be dealt with under POCA.

Mr George Hardaker, Specialist Investigator, AFU, said that he agreed with Mr Jeffery that POCA could be used to address what Mr Bassett proposed. He offered to read out the NPA’s proposals for clause 30A.

Ms Schäfer said that the Members needed to see this in writing.

The Chairperson said that was being circulated. However, he informed Mr Hardaker that the Committee could not be expected to take a decision on something it had only just received.

Mr Jeffery asked where the proposed Clause 30A was drawn from.

Mr Hardaker said that it was not drawn from any legislation, but was based on the unique relationship between the trafficker and the victim.

Mr Jeffery read Clause 30A(1)(a)(ii), which specified that any immovable property found in close proximity of the convicted person at the time of the arrest could be seized. That meant that anybody’s car could be seized.

Mr Hardaker said that this was not the intention.

Mr Jeffery pointed out that it was what the provision was stating.

Mr Hardaker said that there were provisions further down that protected innocent parties.

Mr Swart asked if requirement to prove the instrumentality of an offence under 30A(1)(a) (i) (ii) and (iii) was effectively being removed.

Mr Hardaker said that was correct.

Mr Swart said that this was surely too wide. There had to be proof of instrumentality of an offence.

Mr Hardaker said that there might be difficulty in proving the nexus between the Rolex watch, fancy car and cash that the trafficker owned, and the use of these items to control the victim. In the context of these type of offences, if these items were specified as being subject to seizure, then the trafficker would have to choose whether he should risk losing the items by using them to portray an aura of wealth, or rather not use these items, which would limit the extent to which he would be able to lure victims.

Mr Jeffery said that the instrumentality requirement or proceeds of crime provisions in POCA were intended to provide for the link between the material property and the crime for which the person was being convicted.

Ms Schäfer said that the NPA did not seem to have provided something particularly useful.

Mr Jeffery said that he agreed that the provision was far too wide, and was “a complete non-starter”. This was even more worrying as the sentencing provisions had increased so drastically, and this was also a sentencing provision. He wondered if the Bill would pass Constitutional muster. Furthermore, this was a major change that could not simply be “slipped in”.  Anything dealing with forfeiture to the State should rather be dealt with under POCA, which had been tried and tested.

Mr Hardaker said that if this was causing such contention then there was no point in taking it forward.

Mr Jeffery said that the Committee could consider the provisions, and might agree to something that was less drastic. However, he still felt that POCA should be used if there were assets to be seized.

Mr Hardaker said that the reason why the NPA wanted to introduce this clause into the trafficking legislation was because of the unique relationship between the trafficker and the victim, where power and wealth played a role.

Ms Schäfer asked if asset forfeiture was only dealt with in POCA.

Mr Hardaker said that at the moment, this was correct.

Ms Schäfer said that there would surely be few cases of trafficking that would not be covered by POCA, as most trafficking was done by way of organised crime.

Lt Col Enus said that at the moment there were two cases in the Western Cape where there were POCA applications. Virtually all the cases involved organised crime.

Mr Hardaker said that then the same would apply to section 35 of the CPA.

Mr Swart said that the Committee should consider this further, but he agreed that it was a far-reaching provision that might open the NPA up to constitutional challenges that could delay convictions.

Mr Jeffery reiterated that this proposal extended to anything in the possession of the individual.

Mr Bassett said that other trafficking legislation did contain asset forfeiture provisions.

The Chairperson said that the Committee would resume discussions on this on the following day.

The meeting was adjourned.

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