The Committee continued with its deliberations on the Prevention and Combating of Trafficking in Persons Bill. It decided that it would include in its Committee Report on the Bill certain concerns about the Adjustment of Fines Act that it believed needed updating. The Committee debated at length the issue of whether to impose a duty to report for certain categories of persons. A Member had pointed out that medical practitioners should not be obligated to report as trafficking victims might avoid seeking medical attention for fear of detection. The Committee agreed that it was not unheard of in South African legislation to make reporting mandatory. It wanted to specify that the exception would be for those who were already bound by a code such as lawyers and psychologists. The Committee requested two options should be drafted under Clause 16 where one would be for a specified category of persons and the other would be for any other person who in the course of their duties might come across trafficked victims. The Committee agreed that under Clause 16A if a person had lost an appeal or they had not lodged an appeal then they had to go. They would also not have further state assistance. It was agreed that in Clause 18 there would be a specific reference to the Constitution. Clause 19(3) would be removed as it was not working. The Committee settled on using ‘victim’ in Clause 29. The Committee was of the view that any compensation orders would have to be paid to the Criminal Asset Recovery Account as opposed to the State Revenue Fund because the Minister of Justice and Constitutional Development sat on the Criminal Asset Recovery Account committee. The Committee settled on using ‘after consultation’ as opposed to ‘in conjunction with’ in Clause 41.
Mr Lawrence Bassett, Chief Director for Policy Development: Department of Justice & Constitutional Development (DoJ&CD), said that the drafters would like guidance from the Committee on the issue that the penalty clauses particularly the fines would exclude the jurisdiction of some courts such as the district courts. It could be specified in the Bill that the excluded courts would have specific jurisdiction to impose the fines.
Mr S Swart (ACDP) said that the Department had captured the Committee’s thinking. There were problems with the Adjustment of Fines Act as some of the penalty provisions there were not up to date; the Committee could include this in its Report on the Bill. Was there a monetary limit on the fines that could be imposed by the Regional Courts because they could impose life sentences?
Mr Bassett said that Regional Courts could indeed impose life imprisonment. Regional Courts could also impose a 15 year sentence and the corresponding fine was R300 000.
Mr Swart said that he understood the Department’s intention in the sense that a monetary amount for the lower offences would not be included; only the top offences would be considered and would give guidance for the Committee’s intention.
Dr M Oriani-Ambrosini (IFP) said that the Committee should not lose sight of what the specified persons had to report. It was problematic though that the specified category of persons would report on the basis of a suspicion.
Mr J Jeffery (ANC) said that the specified persons should report on their suspicions. The words ‘report that knowledge’ were completely useless. How were these persons supposed to have knowledge, they had to report on their suspicions?
Dr Oriani-Ambrosini said that legislation which stereotyped any foreign worker as a person who has been trafficked and the creation of obligations for the reporting of foreigners had to be avoided. There should not be a duty imposed on the citizenry to report; especially since they would face criminal sanction if they did not, despite the hideous nature of the crime.
Mr Jeffery said that it was not citizens to whom the provision applied. It was ‘an immigration officer, a labour inspector, social worker, social service professional, medical practitioner, nurse, traditional health practitioner, traditional healer or a traditional leader’. These people reported to the police, it was not like one would call a mass meeting to identify foreigners.
Mr Swart said he agreed with Mr Jeffery. This was not unheard of in South African legislation and the Children’s Act had similar provisions. The Committee had to move on.
Mr Jeffery referred to Option 2 on page 25 and pointed out that it had included ‘any person’, why was it so broad?
Mr Bassett replied that the Department was requested to draft this option. During the public hearings there were calls for the obligatory requirement for reporting to extend to anybody.
Mr Jeffery said that he preferred the mandatory reporting to refer to government officials.
Dr Oriani-Ambrosini said the requirement that a person from the specified category ‘ought reasonably to have suspected’ did not take into consideration that a person was entitled to be absent minded.
Mr Swart said that the requirements in the Bill were only for a certain category of persons and not the general population; Dr Oriani-Ambrosini’s concerns were addressed.
Dr Oriani-Ambrosini said that at the very least, the Committee had to ensure that persons in the medical field were excluded because victims might refuse to seek medical assistance for fear of detection.
Mr Jeffery said that he preferred the original formulation of this provision when it came to listing the categories of persons. The Committee was envisaging the addition of persons who would professionally come into contact with victims of trafficking. Option 2 was too wide in this regard.
Dr Oriani-Ambrosini said that he was in favour of a list of persons who had to report but not in favour of any language that was inclusive of the general citizenry, particularly journalists, who sought to expose trafficking for a story. Medical practitioners and anybody who provided medical assistance had to be excluded.
The Chairperson said that the Committee wanted to specify that the exception would be for those who were already bound by a code such as lawyers and psychologists. All that had to be reported was that a person was a victim of trafficking, not that they were traffickers.
Dr Oriani-Ambrosini asked what of the medical practitioners
The Chairperson said the same requirement was applicable to them; all they had to do was inform the police that a person was a victim of trafficking.
Mr Swart said that the Committee had dealt with this at length and it was not without precedent in South African law that certain persons had a duty to report. Medical practitioners should not be excluded.
Mr Jeffery referred to the Law on Mandatory Reporting document and noted that in America it was obligatory to report on abuse. Moving forward, it would be preferable to have a closed list. Such a wide onerous requirement should be specific with a closed list. The Committee could choose to either specify certain people or to list some and any other person who in the course of their duty may come across trafficked victims.
The Chairperson said that Mr Bassett should draft the two options for the Committee. Should the Committee keep the original Clause 16(2) or should it be removed?
Mr Swart said that it would not do any harm to retain it as it may remind persons not specified that they may report. The sub-clause did not cause any harm.
Mr Jeffery and the Chairperson agreed.
Ms Engela Steyn, DoJ&CD State Law Advisor, referred the Committee to Clause 16(4)(b) and said that the drafters suggested a victim being referred to both an accredited organisation and the provincial Department of Social Development (DSD). The reason for this was that the DSD offices may be nearer to the victim than an accredited organisation. It may also be easier for the police to take victims to a provincial DSD office so that police resources were not stretched too far as the police would have to drive to an accredited organisation in a far away location sometimes.
Mr Jeffery said that the clause was fine as it made use of the term ‘refer’ which did not mean that the police had to physically drive a victim to an accredited organisation. How victims would be transported was covered under Clause 16(6).
Ms D Schäfer (DA) said that she was concerned that the way the clause read it seemed like the police were not obliged to assist victims. Surely if victims needed medical assistance, they should be obliged to give it to them?
Mr Swart said that Clause 16(6) stated ‘must if reasonably possible’, this was fine.
Dr Oriani-Ambrosini said that he agreed with Mr Jeffery.
Mr Jeffery referred to the three options on page 30 and asked what was going to happen to them.
Mr Basset said that the options were for what Clause 16(12) would look like and this would depend on what the Committee decided for Clause 16(3).
Mr Jeffery said that Option 1 and 3 could fall away and Option 2 remain because the people in Clause 16(1) could just be referred to there, should the Committee go for the closed list. Even if the Committee went for an open list, the specified persons would still be the people referred to in Clause 16(1).
The Committee agreed.
Ms Steyn informed the Committee that the words ‘affected by’ were inserted so that they could be in line with what was in paragraph 16A(a).
The Committee agreed.
Ms Steyn said that the Committee still had to decide on the correct wording for Clause 16A(3). It was either the ‘affected person did not lodge an appeal’ or ‘an appeal was not lodged’.
Mr Jeffery said that if a person had lost an appeal or they did not lodge an appeal then they had to go, why should there be further Regulations. They would also not have further state assistance.
Mr Bassett said that he agreed with the Committee.
Mr Jeffery said that he did not know if there was even a need for the clause as other pieces of legislation dealing with immigration would kick in.
Ms Stuurman said that there was a need for the clause because such a person would have to be referred to the Department of Home Affairs (DoH).
Ms Suraya Williams, DoJ&CD State Law Adviser, said that Clause 18(1) may create unintended consequences as a result of its unconstitutionality because it created categories.
Mr Swart asked if there was even a need for Clause 18(2), it could be decided.
Mr Jeffery said that he supported Mr Swart, and there could be reference to the specific and relevant part of the Constitution.
Ms Williams agreed.
Mr Jeffery referred to Clause 19 and said that it may be necessary to have two separate stand alone clauses for the sub-sections. The first part of Clause 19 dealt with all trafficking victims and the other one to victims whose cases were pending.
Mr Bassett said that the option in Clause 19(3) was not working and might have to be withdrawn.
The Committee agreed.
The Chairperson asked what were the programmes, referred to in this clause, about and why did they have to be referred to in law.
Mr Jeffery said that these were requirements according to the Palermo Protocol. The only change that the Committee had made was that it did not want those who had been denied access to the programme, to enter it whilst they were appealing.
Ms Steyn referred to Clause 29(1)(a) and said that the Committee was still to decide between using ‘complainant’ or ‘victim’ of trafficking.
Ms Schäfer asked if the Criminal Procedure Act (CPA) would assist in any way?
Mr Bassett replied that it probably would not because it referred to an ‘injured’ person.
Mr Jeffery said that in his thinking complainant would be limiting. One could have a trafficking case where there was no complainant. The intention here was that the victims of trafficking would get the benefit. The wording should be consistent with the heading which used ‘victim’.
The Committee agreed with this view.
Mr Jeffery asked if there was a need for Clause 29(1)(c), the provision could just refer to Section 1 to 3 of the CPA.
Mr Bassett said that the drafters would look into this.
Mr Swart said that Mr Sibanyoni had asked the Minister via a Parliamentary question on the issue of Section 300 of the CPA. The Minister had replied that the South African Law Reform Commission (SALRC) was looking into this. This could go into the Committee’s report.
The Chairperson and the Committee agreed.
Mr Jeffery said that he was happy with the amendments from the Committee however it should be careful to not turn a criminal court into a civil court by allowing for compensation that was more than the usual.
Ms Schäfer said that if there were claims above the mandatory R300 000 from the Regional Court then the victim could go via the civil route in the High Court.
Mr Bassett informed the Committee that Section 300(5)(b) of the CPA provided that a person, that accepted damages that had been awarded via an order, was precluded from taking any civil action if the order was less than the cost of damages suffered. This was why Clause 29(2) was in the Bill.
Mr Jeffery cautioned that the Committee had to provide for victims of crime as a whole and not set up a compensation regime that only trafficked victims could access. The Committee had to mention in its Report that the Minister had to look at amending Section 300 of the CPA.
Mr Bassett said that this was also the Department’s view.
Ms Steyn said that the clause was designed to allow the court to issue compensation orders into the state fund for the Criminal Asset Recovery Account (CARA).
Mr Swart asked if there was a need for this provision seeing that there was already an insertion that referred to the offences in the Prevention of Organised Crime Act (POCA). Was the Committee duplicating? If there were payments that had to be made, then they would have to be in CARA as opposed to the State Revenue Fund because the Minister sat on the CARA committee.
The Committee agreed.
Dr Oriani-Ambrosini referred to Clause 30(1)(d) and asked if it might not be necessary to specify if victims were being returned to their country of origin or the country from whence they came, was it not important for the Committee to specify this?
Ms Lowesa Stuurman, SALRC Researcher, replied that this was provided for in the Bill, the Department of Social Development (DSD) would through International Social Services (ISS) assist victims in finding appropriate institutions once they were sent to their country as it was not appropriate to send a victim back to the circumstances that they were in when they were trafficked in the first place. ISS would assist the victim in terms of recovery and re-integration into society.
Ms Steyn said that the Committee had agreed that this clause would come out. It had now been replaced with the clause headlined: Coordination of responsibilities, functions and duties relating to implementation of Act.
The Committee agreed.
Dr Oriani-Ambrosini asked what ‘in conjunction with’ meant under Clause 41(1), should it not be ‘in consultation with’?
Ms Schäfer said that the Committee had already had this discussion and had preferred ‘in conjunction with’ in order to avoid back and forth discussions. The DoJ&CD was the designated body that had to work with all the other stakeholders.
Mr Swart said that ‘after consultation with’ was not problematic and would be clear.
The Committee agreed and extended the wording to Clause 41(3) for the sake of consistency.
The Chairperson requested that the Committee should stop and adjourned the meeting.
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