The Committee suggested that the Department of Home Affairs appear before the Committee so that it could be interrogated. Home Affairs was concerned that the Bill would be a new vehicle for an influx of illegal immigrants, this was a legitimate concern. The difficulty facing the Department was that the rationale of the Bill was that deportation only followed after an investigation and a finding. This rationale seemed to fit in with the refugee status scheme; however, the DHA wanted to change this and that would be a problem.
The Committee commented that the issue was complicated as South Africa had one of the highest numbers of refugees in the world. If this was not properly dealt with, problems manifested themselves through xenophobic violence where people felt that refugees had access to resources that citizens should have received. The Bill should not become a vehicle for people who had not been trafficked to allege that they were trafficked and therefore gain permission to stay. The Committee in its innocence had wanted to link the Bill with the Refugees Act and this now seemed to be inappropriate. The fact that persons were trafficked did not mean that they should stay permanently in the Republic. The category that should be provided for were those people who assisted in the prosecution case as witnesses or who provided evidence and because of that evidence, they would not be safe in their countries of origin. There had to be a specific amendment to the Immigration Act regarding trafficking. Those waiting to testify should be provided with temporary residence until the conclusion of the trial. The police or the NPA could be responsible for assisting the granting of permits or permission for the trafficked witnesses to stay. DHA, the Directorate for Priority Crimes Investigation (DPCI) and NPA should be invited to appear before the Committee at joint sitting on this topic.
The Palermo Protocol as a schedule to the Bill was removed. The Committee debated on the appropriateness of the word ‘facility’ for the definition of “accredited organisations”. The Committee acknowledged that ‘facility’ was the term used by the Department of Social Development but it did not capture other government-run entities. The Committee settled on the inclusion of both ‘facility’ and ‘institutions’ for the definition of “accredited organisations”. It was brought to the Committee’s attention that the National Prosecuting Authority would not be proceeding with its proposed Clause 30A. This meant that the following definitions would be removed: “instrumentality of an offence”, “proceeds of unlawful activities”, “trafficking related activities” and “unlawful activity”. Some Members found ‘perceived threat’ under the definition of “servitude” a problem as this was subjective. The Committee remarked that it was satisfied with Clauses 2 and 3.
The Chairperson said Mr Jeffery had made an important point. It was raised early in the deliberations when the National Prosecuting Authority (NPA) appeared before the Committee and stated that there was sufficient effective legislation to prosecute traffickers. The emails did not add to the discourse whatsoever. The first category of victims was the reflection period category which had to be provided for, the second category were those needed by law enforcement for prosecution purposes and the third category were those victims whose lives were in danger because they had testified against offenders.
Mr S Swart (ACDP) suggested that a letter might be sent by the Chairperson to the organisations that emailed and had made submissions during public hearings.
Adv S Holomisa (ANC) said that the anti-trafficking groups would keep sending emails until the Bill was processed and the letter would not help much.
Discussion Note presentation
Mr Lawrence Bassett, DoJ&CD Chief Director for Policy Development, said that the Department had been mandated to meet with the Department of Home Affairs (DHA) on the issue of the foreign status of victims. DHA was concerned that there were measures in the Bill for victims who wanted to stay. If they were genuine victims of trafficking, then they would want to go back home. At the meeting the DHA representatives informed the DoJ&CD that they were not in a position to make any decisions. At least Home Affairs knew where the Department was coming from. The clauses discussed were Clauses 21, 22 and 23. The Department informed the DHA that the Committee was thinking along the lines of doing away with the permanent residence clause which was applicable where a person could not be returned to the country of origin. In such an instances, the person would have to apply for refugee status. DoJ&CD also pointed out possible amendments to the existing clauses which were: an emphasis of what the recovery and reflection period would entail in clause 21; clause 22 would make clear that the victims were not going to remain in the country for a long time and that temporary residence would be purely for the purposes of investigation and prosecution. The Committee in past deliberations had also suggested an amendment to Section 3 of the Refugees Act because the qualification for refugee status in the Act excluded a victim of trafficking. The DHA officials pointed out that Section 31 of the Immigration Act which dealt with exemptions, could be used for victims either as it was now or via an amendment. The DHA officials had noted that their superiors were out of the country and 7 November. The DHA officials also stated that they were in the middle of a policy review which was making it difficult for them to deal with the Bill at the moment.
Mr Swart said that the Bill was tabled at the beginning of last year; it went through Cabinet where it was approved with the Minister of Home Affair’s participation. The Committee has had discussions and made progress. The Minister of Home Affairs then raised issues and the Committee took this into consideration and halted proceedings insofar as the relevant clauses were concerned. Now two months down the line the Committee was being told that the DHA could not come up with a clear position. This was not fair. Perhaps the Committee should just continue, as this may extend the matter indefinitely. The open-endedness of these discussions with DHA were now a concern. The Chairperson should provide some guidance as to possible deadlines being set.
Dr M Oriani-Ambrosini (IFP) said that Committee should take into consideration what DHA has said regarding the Refugees Act. The system of refugee affairs was such that the integration between municipal law and international law was almost absolute. To add something different to this system would result in an immediate rejection from the United Nations (UN) High Commissioner. Section 31 of the Immigration Act was an enormous power that was usually utilised by the Minister. It went through a lot of scrutiny and checks and balances within the Department. This power effectively allowed the Minister to override existing laws and it should not be used to allow an entire category to be given preference. The DHA should also appear before the Committee so that it could be interrogated in the same manner as the National Prosecuting Authority (NPA). The DHA was concerned that the Bill would be a new vehicle for an influx of illegal immigrants, this was a legitimate concern. The difficulty facing the Department was that the rationale of the Bill was that deportation only followed after an investigation and a finding. This rationale seemed to fit in with the refugee status scheme; however, the DHA wanted to change this and that would be a problem.
Mr Jeffery said that the issue was complicated as South Africa had one of the highest numbers of refugees in the world. If this was not properly dealt with, it manifested itself through xenophobic violence where people felt that refugees had access to resources that they should have received. The Bill should not become a vehicle for people who had not been trafficked to argue that they were trafficked and therefore gain permission to stay. The Committee in its innocence had wanted to link the Bill with the Refugees Act and this now seemed to be inappropriate. The fact that a person was trafficked did not mean that they should stay permanently in the Republic. The category that should be provided for were those people who assisted in the prosecution case as witnesses. The Committee should also provide for those people who provided evidence and because of that evidence, they would not be safe in their countries of origin. There had to be a specific amendment to the Immigration Act regarding trafficking. Those waiting to testify should be provided with temporary residence until the conclusion of the trial. The police or the NPA could be responsible for assisting the granting of permits or permission for the trafficked witnesses to stay. DHA, the Directorate for Priority Crimes Investigation (DPCI) and NPA could be invited to appear before the Committee at joint sitting.
Ms D Schäfer (DA) said that she agreed with all previous three speakers.
Mr Jeffery added that there were three categories: there was the reflection period category which had to be provided for, those who were needed by the law enforcement authorities and those whose lives were in danger because they had testified.
Dr Oriani-Ambrosini said that there was a further category, that of trafficked victims who did not want to come forward for fear of deportation. The Palermo Protocol addressed this as it allowed for victims to remain. It may be that the Bill may encourage people to claim that they were trafficked.
The Chairperson asked what the difference was between deportation and repatriation.
Mr Basset replied that in terms of the Immigration Act, deportation meant, ‘The action or procedure aimed at causing an illegal foreigner to leave the Republic in terms of this Act’. Depart in terms of the same Act meant, ‘Exiting the Republic from a point of entry in terms of this Act’. The Act did not refer to repatriation.
Mr Jeffery said that deportation would be an involuntary process, repatriation would be voluntary. Those who became victims of labour trafficking because of their bad economic circumstances, should not be able to argue that they should remain because they would be trafficked again.
Ms Schäfer said that the Palermo Protocol did not oblige the Committee to allow victims to stay indefinitely or permanently.
Mr Jeffery suggested that the Department should take the Committee through flagged areas of the Bill where decisions still needed to be made.
The Committee agreed.
Mr Bassett proceeded with the first issue which was the short title of the Bill.
Mr Jeffery asked if the Committee had been given options.
The Chairperson said that he could not remember who had raised this as a problem.
Ms Suraya Williams, DoJ&CD State Law Advisor, said the issue of the short title was raised during the public hearings where it was suggested that the short title should be Prevention and Protection of Victims and Combating of Trafficking in Persons.
The Committee rejected the proposal.
The Chairperson suggested that this could be inserted as an option.
Mr Jeffery said that unless somebody from the Committee was supporting this proposal the footnote should be removed from the Working Draft.
Ms Engela Steyn, DoJ&CD State Law Advisor, referred to page 6 footnote 7 where it was pointed out that the UNODC cautioned against the inclusion of the Protocol as a schedule to the Bill as it could open the State to litigation if anything in the Bill was inadvertently in conflict with the provisions of the Protocol. The Committee still had to decide on this.
Mr Jeffery asked what the link was between the Bill and Schedule 2.
Mr Bassett said that the link was that Schedule 2 had the United Nation Protocol which was there for information purposes.
The Chairperson said that the Protocol should be taken out and the Committee agreed.
Ms Schäfer asked if there was anything in the Bill that was contrary to the Protocol.
Mr Basset said that there was nothing.
Ms Steyn continued and pointed out that the Committee still had to decide whether to use facility or organisation in the definition for accredited organisation.
Mr Jeffery asked why there was a need for the definition; it was not clear whether there was legal certainty for ‘facility’. Clause 24 already set out in detail what an accredited organisation was. The definition for accredited organisation could simply refer to Clause 24.
Ms Schäfer said that the reason the Committee had opted for facility was to make provision for those institutions that were partly run by the government like Thusong Centres, for example.
Mr Jeffery said that the word ‘facility’ could not be used because one could not accredit the facility as a physical structure but it would be the organisation that ran the facility as a legal entity that would receive accreditation.
Mr Bassett said the Department would work on a definition for insertion in Clause 24.
Adv S Holomisa (ANC) asked how the current formulation took away from what was intended. Surely the people running the facilities were referred to as opposed to structures?
Mr Jeffery said that the word facility made one immediately think of a structure, rather than having a definition one could just refer to Clause 24.
Adv Holomisa said that Clause 24 merely set out what the Minister had to do for the accreditation of organisations; it did not provide an adequate definition for an organisation. A better word would be ‘institution’ which would cover facilities and personnel.
Mr Swart said that the Department of Social Development (DSD) had wanted facilities to be used because this was the word they usually used. Facilities and institutions could be both added in the definition.
Mr Jeffery said that there was a difference between DSD and government facilities.
Mr Bassett said that institution was better than facility and Adv Holomisa had a point.
Mr Jeffery agreed seeing as the Committee seemed to be in agreement on ‘institutions’.
Ms Schäfer said that the facility was a government one, therefore the people running it would be government employees anyway and this would generally be known. Facilities did not refer to the structure only.
Ms Steyn moved on to page 8 and referred to the definition of immediate family member, the Committee had to decide whether the definition had to remain.
Dr Oriani-Ambrosini said that the definition should remain for now and it could always be removed later. The problem with the definition was that it was open when it came to dependent family member. It was open as it did not provide for degrees of kinship. Was the intention to have it so broad?
The Chairperson asked if a clan member was included in the definition.
Adv Holomisa said that the definition excluded clan members. Immediate clan member would reduce the scope of applicability.
The Chairperson said that the definition should be left in there.
Prof G Ndabandaba (ANC) agreed that it would be safer to leave it in.
Ms Steyn moved on to the definition of ‘the instrumentality of an offence’ and ‘proceeds of unlawful activities’, the Committee still had to decide on these definition clauses.
Mr Bassett said that the NPA had said that they would not proceed with the inclusion of Clause 30A and thus these two definitions could now come out.
Mr Jeffery said that he was unhappy with the NPA clauses and that they were trying to cast the net as wide as possible.
Mr Bassett said that the NPA could achieve what they had wanted to achieve via existing legislation.
Dr Oriani-Ambrosini agreed with Mr Jeffery, there was no need to undo the Prevention of Organised Crime Act (POCA) or to bring anything new in addition.
The Committee agreed that the NPA’s proposed Clause 30A should be removed.
Mr Bassett said that as far as definitions were concerned this would mean that the following would be removed: “instrumentality of an offence”, “proceeds of unlawful activities”, “trafficking related activities” and “unlawful activity”.
Dr Oriani-Ambrosini said that the words ‘perceived threat’ should be removed under “servitude” as this would make the Bill complicated and also this provided for a subjective test.
Ms Schäfer disagreed.
Adv Holomisa said that he also had difficulty with ‘perceived threats’.
Ms Williams said that ‘perceived threats’ was used either in the protocol or similar legislation.
Adv Holomisa said that since victims of trafficking were going to get so many benefits, the Committee had to be careful in not providing such wording that was subjective.
Mr Jeffery agreed that measuring a ‘perceived threat’ was a subjective test, the wording could be taken from the Palermo Protocol where ‘coercion’ was used, what was the wording from other international legislation. He agreed that the current wording may be too wide.
Ms Schäfer agreed with the use of ‘coercion’.
Mr Bassett said that the Department would look into this further.
Ms Steyn continued and said that the definition of the UN protocol must come out.
Mr Jeffery asked why this should be removed as the definition should remain for the sake of clarity. What had to come out was the Schedule.
Ms Steyn moved on and said that under Interpretation of Expressions, the Committee had indicated that it had to be flagged for the purposes of ukuthwala.
Mr Jeffery said that he was surprised to see the footnote that said the Committee had flagged this issue.
Mr Bassett said that he had the sense that the Committee had settled this clause at the last meeting.
Ms Schäfer said that the Committee had agreed on this clause from the previous meeting.
Mr Jeffery and Mr Swart agreed.
Ms Steyn referred to Clause 3 and informed the Committee that it was still to decide on this clause.
Mr Jeffery said that it looked fine and the footnote could come out.
The Committee agreed.
Mr Jeffery also said that Clause 2 was okay and reminded the Committee that it was at the NPA’s request.
Mr Swart referred to Clause 9 and pointed out that surely a common law defence of necessity would be available to a carrier who entered the Republic because of an emergency landing whilst carrying victims of trafficking.
Mr Jeffery pointed out that the old Clause 9(4) was deleted so that in such a scenario the carrier could still be criminally liable for having trafficked victims on board. If 9(4) had remained then the carrier would have had a defence.
Dr Oriani-Ambrosini asked what was the difference between ‘incite’ and ‘instigate’ under Clause 10(1)(b).
The Chairperson said that the question was taking the Committee back to issues it had already discussed.
Mr Bassett referred the Committee to the penalties and suggested that the Bill should refer to a fine as against the number of years in prison and the courts could use their own discretion when making adjustments.
Mr Jeffery said that the sentences were maximums; the courts could still deviate and give lesser sentences. The years gave the indication on what the fines should be. Preferably there should not be maximum fines, the years for imprisonment could give an indication to the court as to how much offenders should be fined, this was what was normally done.
Mr Swart said that the NPA had argued that the Adjustments of Fines Act was not abreast of current developments. The NPA then set out various pieces of legislation where there were fines of up to R100 million. For Clause 4(1) and (2) the sentence provisions should set out the fines so that the courts had the maximum fines available to them. He supported the Department.
Dr Oriani-Ambrosini cautioned the Committee on listening to the NPA since its objective was to prosecute as much as possible, the Committee still had to balance competing rights. The Committee should also be aware that the penalties for crimes involving trafficking were very low and the figures did not fit the context of the crime of trafficking.
The Chairperson said that the courts still had discretion.
Mr Bassett said that the Adjustment of Fines Act should not be relied upon as it only applied to district courts.
Mr Jeffery said that he would prefer amending the Adjustment of Fines Act as opposed to having a piecemeal approach to the Bill.
The Chairperson agreed and said that the Committee would meet next week with DHA, DPCI and the NPA.
- Prevention & Combating of Trafficking In Persons Bill Working Draft
- Comparative Table of Penalties & Proportionality of Sentences in Trafficking in Persons Legislation
- Law on Mandatory Reporting of Adult Victim of Trafficking in Persons & Consent of Adult Victim to be Reported
- Discussion Note: Comparison of Chapter 4 of Prevention & Combating of Trafficking In Persons Bill, 2010
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