Prevention of and Combating of Trafficking in Persons Bill: clauses 22, 23, 24

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Justice and Correctional Services

08 November 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Chairperson noted the attendance of officials from the South African Police Service (SAPS), the National Prosecuting Authority (NPA), the Department of Justice and Constitutional Development (DOJ&CD), the South African Law Reform Commission (SALRC) and the Department of Home Affairs (DHA). The Committee concentrated on issues in the Prevention of and Combating of Trafficking in Persons Bill (the Bill) that would involve the Department of Home Affairs, specifically chapter 4 provisions. An outline of the DHA’s concerns was given, and it was stressed that the provisions for victims of trafficking were intended to assist with successful prosecutions of traffickers, which would require cooperation, and the presence in the country, of the alleged victims. At the moment, temporary residence or visitor’s permits were issued to such victims, or section 32(1)(b) of the Immigration Act exemptions were used, although these had been problematic and the NPA was not in favour of using them. SAPS agreed that there was a need to retain the victims in the country, but asked that the discretion in clause 22 should be given to the National Commissioner. The Directorate for Priority Crime Investigation (DPCI) noted difficulties in convincing witnesses to stay in the Witness Protection Programme, and the long time delays in getting permits from the DHA. SAPS and the NPA stressed that trafficking was organised crime, and a good balance had to be found to address prosecution of traffickers, the needs of victims, and to guard against abuse by non-trafficked asylum seekers or illegal immigrants. NPA wanted more assurances to victims that if they assisted with the investigations or testified satisfactorily, there was greater chance of protection. A process was needed that did not confer rights of residence, but through a process that would follow an application by only the SAPS or NPA, and it would be linked to the investigations or giving of evidence, although agreement by the victim to cooperate would not be sufficient on its own. Any delays in the process would have to be addressed through inter-departmental committees.

In respect of clause 23, it was noted that there was a need to assist a trafficked victim to obtain residence in South Africa, if that person could not return home for fear of being “harmed, killed or trafficked again”. Members of the Committee thought that “trafficked again” should be removed, as it had posed problems with labour trafficking. They agreed also that a new clause, not time-bound, should be inserted in the clauses dealing with investigations, to provide that the NPA could assist a victim, after conclusion of the case, to apply for permanent residence, although it was accepted that no guarantees could be given because of the other requirements for permanent residence. The DHA said that this might duplicate the provisions that a person who had been in the country for five years legitimately could apply for permanent residence, but was not opposed to the concept. The drafters would formulate wording. It was stressed that this would apply to a very small category of victims.

Members then discussed the purpose of the recovery and reflection provisions, noted that this was for 90 days, but the term “non-renewable” should be deleted, and noted that a visitor’s permit could be sought after that period. They discussed when the 90-day period should begin running, and noted that there was a need to provide that letters of recognition could be issued even if a victim was not identified through a SAPS or another official search. Members thought provisions for consultation with SAPS should be added into clause 16(7), as part of the assessment. Some practical issues were described by the DPCI, as well as the need to guard against abuse of the provisions, and the role of foreign consular services. Members then noted that no deportation was allowed in this period, and wondered if clause 24 had to be amended to guard against victims being deported before letters of recognition were issued, but noted the DOJ&CD request not to provide more potential loopholes for abuse. Clause 24(6) was to be removed. Members noted that the Department of Social Development had asked for clauses on their role in repatriation to be included, with the consent of DHA, because it was involved with repatriating children and the Children’s Act contained similar provisions. Members would, at another meeting, consider if clause 24(5) was still needed.

Meeting report

Prevention of and Combating of Trafficking in Persons Bill:
The Chairperson noted that he had managed to meet the Deputy Minister of Home Affairs on the previous day, and had stressed that although input was being made from the Department of Home Affairs at quite a late stage, it was important to the work being done on the Prevention of and Combating of Trafficking in Persons Bill (the Bill). He reminded Members that on the previous day they had reached clause 42, but the Committee would deal today with issues that were flagged, relating to the work of the Department of Home Affairs (DHA), South African Police Service (SAPS) and the National Prosecuting Authority (NPA).

Mr J Jeffery (ANC) thought that it would be useful to deal with chapters 4 and 7.

The Chairperson agreed and asked Members to start with Chapter 4, which dealt with the reflection and recovery period. The Committee did not want to repeat what was elsewhere in the law, nor fall foul of the Palermo Convention.

Mr Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice and Constitutional Development (DOJ&CD), noted that he had engaged with the Department of Home Affairs (DHA), and a document was made available. The concerns of the DHA as far as trafficking was concerned included questions as to the likelihood of a genuine victim of trafficking wanting to be repatriated, the reasons why a victim should be kept in South Africa, rather than being returned and recalled if necessary, and recognition of a victim of trafficking.

The DOJ had indicated its position that some of the provisions in the Bill echoed those in the Palermo Protocol, and that this Bill also aimed to ensure that traffickers were prosecuted. This was only possible if witnesses were present and could give evidence meaningfully, which was the main reason behind the inclusion of the recovery and reflections period. Further provisions aligned with temporary residence and visitor’s permits, but these would only be issued when necessary, on the written request of a senior official. Mention was also made of possibly using the Immigration Act’s section 32(1)(b) exemption. This had been problematic in the past, because it took too long and there were administrative hitches. There was another possibility – to amend the Refugees Act – though the Committee was of the view that permanent residence was not the route to follow, but temporary residence status might be more appropriate for a person who could not be returned to his or her own country.

Clause 22
Mr Jeffery asked, in the context of the need to effectively prosecute trafficking cases, for comment from the NPA and SAPS as to whether there was anything wrong with the existing provisions, that would need to be fixed in this Bill. He asked if the existing laws allowed for cooperation of victims of trafficking, and thought that before they were willing to testify, they might want certain assurances as to their status.

Dr Tertius Geldenhuys, Legal Services, SAPS, fully supported the need to retain the victims in the country to testify against traffickers. Experience had shown that there were difficulties in getting a witness back to South Africa to testify. He asked that a minor problem with clause 22 should be addressed. This clause currently referred to “the Provincial Commissioner”. It had been noted that highly-placed officials should exercise discretion, and SAPS therefore asked that this be changed to “the National Commissioner” (who may of course delegate to another senior person.

Mr Jeffery said that this did not quite address the question. He had understood that victims were currently able to stay in South Africa, but wondered what improvements might be needed. The Immigration Act also made provision for people to stay. However, there had been comments that the procedures were very onerous and cumbersome.

Mr S Swart (ACDP) said that it seemed that the problem lay with section 32(1)(b) of the Immigration Act, in practice.

Mr Ebrahim Kadwa, Section Head Operations, Directorate for Priority Crime Investigation, said that there were a number of cases of trafficking in which the Directorate for Priority Crime Investigations (DPCI) had been involved with victims. The main difficulty lay in convincing the victims to stay in the Witness Protection (WP) system. In one case, the existing Immigration Act had had to be applied to keep a person in the country. One victim claimed that the trafficker had, after she had returned to her home country, managed to persuade her to come to South Africa a second time, and it must be remembered that the victims were psychologically controlled by the trafficker. In that case, a permit had been obtained eventually. There remained some practical challenges with foreign victims. This Bill would be centred on the victims. However, it was also necessary to remember that trafficking was organised crime and there was a strong possibility of abuse, so a good balance had to be found. In addition, he noted that this was an expensive process to sustain. One of the current complaints about witness protection was that not enough money was provided to victims, and they experienced difficulty in getting into society.

Prof L Ndabandaba (ANC) asked if these problems were exceptions or the norm.

Mr Kadwa said that trafficking cases were quite new to South Africa, and the DPCI had not had enough to establish definite trends, but these were noted as emerging problems.

Mr Rodney De Kock, Deputy Director: Public Prosecutions: Western Cape, said that security and protection of the witnesses were at the forefront. He too stressed the organised nature of trafficking. This meant that investigations into it were lengthy, and this would then have a bearing on the permit applications. There was great potential for a negative impact on the security of the witnesses, without whose evidence the cases would not succeed. The NPA wanted to attack the syndicates, as this could have more impact in addressing the broader problems of human trafficking, and he urged that witnesses should be given some measure of assurance that if the matter was genuinely a human trafficking case, they would be assured of security. He noted that witness protection was currently voluntary and that raised further problems for the NPA. Not everyone was placed on witness protection, as there must first be an assessment of risk. The Head of the Witness Protection Unit (WPU) had some discretion. The witness could also opt to leave the programme at any stage, so there was a need to coach the witness and try to persuade him or her to stay in the programme. The DHA took the position that if a person was an illegal immigrant, s/he must be deported as soon as possible, and this put pressure on the NPA to finalise matters as soon as possible. It must, however, be understood that some witnesses would be in the country for a long time.

Mr Jeffery said that it was clearly not viable to send victims back to their own country, and then try to get them back to give evidence. He thought that the solution might be to have a system similar to what was already in clause 22, and allow for a Visitors Permit to be issued to a person who was required by SAPS for investigation and/or by the NPA as a witness, or to give assistance with the case. The safeguard would be to have discretion at a senior level of official. He therefore asked if DHA would have any problems with a senior person from SAPS making application to a senior official in DHA for a permit, which should be applicable for as long as needed. He thought that this was not the right forum to discuss difficulties in witness protection.

Ms D Schäfer (DA) asked what would happen to a victim until the permit was granted.

Mr Jeffery thought that if that person was an illegal immigrant s/he could be placed at the Lindlela centre. (However, the DPCI subsequently confirmed that this was not done).

Mr Bassett said that the Bill made provision for a letter from DSD to certify that the person was a victim of trafficking. He also noted that there were some real practical problems with the section 32(1)(b) exemptions.

Mr Tariq Mellet, Director: Immigration Services, DHA, explained that he had been asked to attend at short notice, so he was not familiar with all the provisions of the Bill, but had been briefed on the DHA’s position. The DHA asked that there should be no immigration prescriptions in the Bill. The Bill should ensure rapid response, decisiveness and responsibility. He said that in his own experience, the syndicates were well-used to finding every loophole, and the Corporate Permit and the Section 11(2) permits had become “currency” for human trafficking. He cautioned that this Committee should be careful of introducing more permits. He also noted that trends were seen of workers in clubs and brothels seeking asylum. DHA officials were in the front line of the fight against trafficking. He conceded that in the past, there had been problems in finding the right person to take a decision on permits quickly and decisively, and gave his own view that perhaps the DHA might need to designate a senior official to deal with these matters and reach a decision on the same day. This would be preferable to trying to find the right permit and application mechanism, when there were already too many different types of permits. In one case, a victim had entered South Africa for a 25-day holiday, had been trafficked and ended up unable to be repatriated for over two years. Most of the clubs were linked in a syndicate chain, with expert lawyers who managed to find every loophole to ensure that the victims continued to be circulated in the club system. DHA conceded that the permit system under the Immigration Act needed to be rationalised. The problem around slow decisions would also need to be addressed.

Mr Mellet suggested that the Bill should contain a provision to note that the DSD, SAPS and NPA should deal with matters, in conjunction with a high-level mechanism in DHA. He stressed that the DHA was a security department, and was at the heart of the security system, and that it was concerned with the serious assaults on the national population register.

Mr Jeffery said that this confirmed that the existing mechanisms were fine in theory, but a mechanism was needed to enforce them. The section 11 visitor’s permit was for three months. There was clearly a need for some provision that was essentially an exception to section 11(1) of the Immigration Act, to allow that even where the normal provisions were not applicable, a visitor’s permit could be issued, in cases of trafficking. It should allow the National Commissioner of SAPS, or the National or Provincial Director of Public Prosecutions (DPP) to apply, and there was a need to limit this to victims who would be needed by the SAPS or NPA for the purposes of a case. To avoid abuse, only those parties could make application, and not private individuals or legal representatives. It would be necessary to state that the permit could be revoked, or renewed, if applicable, depending on whether the victim was still needed for the case. He thought that no mention should be made of any class of residence. The idea was simply to allow for a procedure to keep the victim in the country.

Mr Mellet said that the Director General of Home Affairs would like to discuss the matter further, but was unable to be present today. He would convey these suggestions. The DHA felt that no new category of permit should be created, that DHA should have the discretion which permit to use, and that DHA should be involved in the decision-making.

Mr Jeffery pointed out that the Bill had already been approved by Cabinet, but the Committee was trying to tighten the wording. Mr Bassett had been interacting with officials from DHA for a long time.

Mr Swart said that the Committee was under pressure to pass the Bill. The Committee was very mindful of the possibility of abuse by syndicates, and the labour implications. In August, the Committee was told that the issues could be dealt with quickly by DHA, but it seemed that this was still very much in the air. He urged that DHA should deal with this rapidly. He asked if the DHA could also make a suggestion as to how to tighten the wording to deal with syndicates. The possibility of using a Commissioner in DHA was noted.

Mr Jeffery said that National Commission of SAPS level was requested.

Mr Swart agreed, but said that function would no doubt be delegated.

Ms Schäfer thought that the concerns of DHA were covered by the fact that NPA or SAPS must apply, agreed that there was a need not to use a temporary residence person, and that a clear link must be established. She thought that time periods should also be set, but how DHA managed that would be an administrative concern.

Mr Swart asked for practical examples of matters where loopholes had been found or used.

Mr Jeffery cautioned that the wording would need to indicate clearly that this was not a stand-alone right to a permit, and again stressed that it must be linked to the victim being needed to assist with the investigation. He suggested some wording and asked the DOJ&CD to draft and circulate a suggested clause. He was not sure whether it was possible to specify that DHA must make a decision within a specified time.

Mr Swart noted that a high level committee would be meeting, and any delays could be addressed there, when both the Director Generals of Justice and Home Affairs would be present. He asked if an intersectoral committee should be introduced again.

The Chairperson expressed the view that they did not work.

Ms Schäfer suggested that the new clause could also mention that this would be used where a victim had agreed to cooperate with law enforcement authorities, but the agreement alone was not to create the entitlement, if the evidence was not needed. She wondered if, failing timeous attention by DHA, a deeming provision could be used.

Mr Jeffery did not agree with the deeming provision, but did agree with Ms Schäfer’s first suggestion, and said the criteria could be changed from “has agreed (to give evidence)” to “is needed”. This would introduce a two-stage test; the evidence must be needed, and the victim must agree to cooperate.

Mr Mellet said that it might be possible to have suitable senior officials agreeing to matters even on the phone.

Mr Jeffery said this could not be legislated for and even the delegation levels should not be included.

Mr Bassett said that another possibility, if DHA did not want to create another permit, was perhaps to link this to the exemptions under section 31(2)(b) of the Immigration Act. Although this related to permanent residence, that was how the NPA currently applied when it wished witnesses to stay in South Africa.

Mr Jeffery said that the intention was not to grant everyone residence, but purely to allow a victim to stay if needed for the case. Essentially, what the Bill was doing was suspending the normal provisions around permits. The NPA was not in favour of using section 31(2)

Mr Mellet said that he would convey all views to the Director General. From a practical point of view, he had noted that rapid response was a problem. However, the DHA did already have mechanisms to fast-track permits to allow skilled people into the country. He urged that no mention should be made of “entitle”, as this could be open to interpretation.

The Chairperson said that the Committee was mindful of that problem.

Mr Jeffery said that it would have been useful for SAPS, DHA and NPA to have dealt with this earlier. He agreed that there was no “entitlement” with temporary residence, but he appreciated the concerns around permanent residence.

Dr Geldenhuys said that the clause referred to “at the request of the National Commissioner or DPP”. Before issuing the written request the official would have to determine whether it was necessary to make the request for the purposes of the prosecution, so this was already implied.

Mr Jeffery said that the wording he had suggested would address the situation where a person claimed to be willing to testify, but was not in fact needed.

Mr de Kock said that in practice, the provinces had a mechanism to deal with human trafficking, and that could be incorporated into rapid response teams for trafficking. The NPA supported what had been said.

Ms Schafer suggested that clause 22(1)(b) should read, “law enforcement and/or prosecuting authorities”.

Clause 23
Mr Jeffery noted that clause 23 also referred to permanent residence. If a person had legitimately been in the country for five years, s/he would acquire some rights of permanent residence. There was a need to be able to assist a trafficked victim with permanent residence in South Africa, if his or her assistance with the prosecution meant that s/he would be in danger in the home country. That would be limited; for instance, a witness in Columbia to a drug cartel’s activities that were prosecuted in Columbia would not be able to seek refugee status in South Africa, but if assistance was given by a victim to prosecute a trafficking case in South Africa, that victim could apply, in limited circumstances, to stay. He thought that the NPA should be able to give a victim an assurance that s/he would be able to stay in South Africa.

Mr de Kock was not sure that only those who were already in South Africa should be able to apply to stay after giving evidence, confirmed that there were often difficulties with witnesses in organised crime cases, and said that there were witnesses who were worried that their assistance would expose them to danger.

Mr Jeffery suggested that the current wording of clause 23 should be amended. Instead, he suggested a new clause, not linked to time, which should be limited to NPA only, because it would apply to those who had given evidence in court. He suggested some wording, beginning with “Despite the provisions of the Immigration Act, the NDPP may apply to the Director General of Home Affairs for permanent residence for a victim of trafficking..” but then it would be necessary to think further on the conditions. Whilst, ideally, the NPA should be able to use the provision as an incentive for a witness to testify properly, the permit would only be considered after the testimony. Something similar to the wording for indemnity from prosecution could be used.

The Chairperson agreed that the Committee as not in favour of the current wording of clause 23.

Mr de Kock confirmed that the witness would first have to give evidence, and the court, not the prosecutor, would make a decision on indemnity. There could not be any recommendations for permanent residence prior to the trial, because there were a number of factors that might cause the trial not to proceed. The NDPP should only be able to say that the giving of satisfactory evidence might lead to awarding of permanent residence status.

Dr Geldenhuys cautioned that a person could not be promised anything in advance, as the trafficker could then claim that the evidence was biased.

Mr Jeffery thought this should not be limited to testimony in court, but should apply also to other assistance, where the NDPP thought the victim could be threatened on returning to the home country.

Mr Mellet said that the DHA had several concerns on this issue. He noted that the concept of “permanent residence” was outdated, as best practice in other countries had moved away from this concept. In South Africa, there had been instances of “immigration laundering”, where a person moved rapidly through change of permits to become a citizen. He said it was undesirable to “sell” the national identity. Permanent residence was the last stepping stone before naturalisation, although the DHA had already agreed that it would be necessary to break the link between the two. A permit could be seen either as incentive or reward. Rewarding for testifying was akin to selling citizenship. The process for getting permanent residence must also be understood. It took at least six months, because applications must be passed through other authorities, such as the National Intelligence Agency, for scrutiny. He pointed out that many victims of trafficking may have other criminal records, so it was difficult to make promises that a permit would be given. He thought it would be inappropriate for this provision to be included in the Bill.

Mr Jeffery responded that the Committee had already settled the issue that a person could stay in order to testify. He asked if the NPA needed the mechanism now being discussed, to allow it to prosecute successfully.

Mr Swart asked for how long a visitor’s permit could be extended. He noted that Article 7 of the Palermo Protocol made provision for victims of trafficking to “remain in a territory temporarily or permanently”. The key issue was that if a witness was returned to his or her own country, s/he could be “harmed, killed or trafficked again”.

Ms Schäfer said that the entitlement was only to make application for a permit, but not to get it. She asked if South Africa was obliged to apply the Palermo Protocol.

Mr Jeffery thought that perhaps the section 31(2) permit might be applicable, on completion of the trial. He proposed wording along the lines of : “The National Director of Public Prosecutions may assist a victim who has assisted with the investigation to apply for an exemption in terms of section 31(2)”. He stressed that the word “may” would have to be used, and that the application for a permit would have to be brought by the victim of trafficking.

Mr Mellet noted that a person who had been in the country for five years could already make application for such a permit, and this might be a duplication. He did not think that there would be any objection to calling for consideration also of a recommendation from the NDPP or National Police Commissioner, to certify that the person had cooperated.

Mr de Kock said the emphasis would be on the small category of human trafficking victims who could be harmed or killed. Once these witnesses – or any citizen in South Africa – had given evidence, they were no longer kept under the Witness Protection programme. The threats could become a problem, especially if international syndicates were involved. He thought that perhaps some sort of guarantee of protection to the witness was needed. This was unlikely to open the floodgates, as he stressed that it would apply to a very small category of people.

The Chairperson agreed that this was unlikely to change the nature of South African citizenry overnight, although he was mindful of the need to protect citizenship.

Mr Jeffery pointed out that the clause would only make mention of assistance to the NPA, as the cases would have to have reached conclusion. He also thought that the third category, the danger of being trafficked again, should not be included, as it was far too wide, as illustrated by the Swazi labour trafficking cases. It should be limited to those who had supported the investigation, where there was a real danger of that person being harmed or killed. The support for the application by the NDPP may boost the case for more favourable consideration of the application.

Mr de Kock said that this would be useful.

Ms Schäfer asked what difference it would make for a victim under threat to stay in South Africa or be returned home, pointing out that international syndicates could harm a person, wherever s/he was living.

Mr Jeffery noted that statutory witness protection ended on conclusion of the trial. That was a different issue. The Committee wanted to provide some incentive for assistance at the trial, although it would not be worded as such.

Mr Jeffery suggested that the new clause be inserted in the portion of the Bill dealing with investigations.

Recovery and reflection provision
Mr Jeffery said that the intention behind the recovery and reflection period was to give the trafficked and traumatised victim an opportunity to consider whether s/he wished to assist SAPS. Foreign victims may have left their own country voluntarily, but under a misapprehension as to what they would find in South Africa. That should not be used as an entry point. He believed that the 90-day period was appropriate, and the DHA had also noted that a visitor’s permit was valid for 90 days. If no letters of recognition were given, an appeal process would also apply. He wondered if that period should run from the time of rescue.

Mr Bassett asked if the SAPS and NPA should also be part of the recovery process and give an indication of whether this was a potential witness.

Mr Jeffery said that an illegal immigrant, who might have been in the country for a while, could claim that s/he was trafficked in order to “buy” 90 days, but there were genuine cases, where the SAPS should be able to assist trafficked victims, and where the 90 day period was needed. He pointed out that the Bill did not currently make provision for a victim of trafficking who was not discovered during a SAPS raid, but who later approached the authorities without police involvement. If recognition was refused, the 90 day period should cease running.

Mr Marshall Mokgatlhe, Deputy Director: Public Prosecutions, SOCA Unit, NPA, asked if a person could be issued with a letter of recognition without the SAPS being notified. He confirmed that the non-renewable 90-day recovery period was needed, if the victim was to assist.

The Chairperson stressed that the reason why the DHA had questioned it was that it could be a possible duplication of the 90-day visitor’s permit.

Mr Jeffery noted that the Department of Social Development (DSD) would do an assessment of whether the person was a victim of trafficking, and, if so, would issue the letter of recognition. This would be prescribed in the regulations, which could also require involvement by SAPS, although one reason for exclusion was that the victim may not want to involve the police. He was not sure how much was covered by the Palermo Protocol or other countries’ laws. In South Africa there was a large illegal immigrant problem. If a crime had been committed, SAPS should be involved, and if not, the victim must return to the home country, as there was a danger that immigrants could otherwise flood in to the country.

Ms Lowesa Stuurman, Principal State Law Advisor, South African Law Reform Commission, said that she was not sure whether the SAPS could be excluded, because reports must be made and police investigations would be ongoing.

Mr Bassett asked for clarity on Mr Jeffery’s suggestion that the recognition period might start before the letter of recognition was issued.

Mr Jeffery explained that clause 16 required an official who came across a potential victim of trafficking to report it to SAPS, but nothing was said about a person who brought this, of her own accord, to the attention of an official.

Ms Bronwyn Pithey, Deputy Director: Prosecutions, SOCA Unit, NPA, said that perhaps this could be a condition or a requirement of the assessment, or a recommendation.

Ms E Ntshinga, Deputy Provincial Commissioner, DPCI, said that some people would pretend to be victims of trafficking, although they had entered the country voluntarily.

Mr Kadwa noted that often victims would be unwilling to give testimony. Most victims trafficked were from the Eastern Bloc countries in Europe, or from Thailand. The DPCI would try to get statements, and would get the embassies involved. Over the last few years, none had wanted to press charges. The provisions to enter premises without search warrants would be helpful to SAPS.

The Chairperson noted that the Minister of Home Affairs had made the point that most of the victims wanted to return home, not stay in South Africa, so the provisions for housing, grants, education of children and so forth may well be irrelevant.

Mr Swart asked the DPCI how it could get victims to stay as witnesses. DHA had made the point that victims might well be safer in their home country, where only agents, and not the syndicates themselves, were operating. It was also important to avoid giving victims of trafficking more rights than victims of other crime.

Mr Jeffery said that this Bill aimed to make it easier for trafficking to be successfully prosecuted, from provisions dealing with identification and protection, reporting to SAPS, and powers of search and seizure (although caution must be exercised around searches without a warrant).

Ms Stuurman noted that the Bill also provided for instances where a police official “may have known, suspected or ought reasonably to have known” that a person was a victim, although she agreed that there was a need to provide for a situation when the victim herself approached an accredited organisation.

Mr Jeffery agreed with the recovery and reflection period; although there might be some instances where a person may seek to abuse it, hopefully sufficient details would have been recorded to prevent this, and to deal with any illegal immigrants wanting to “buy” extra time, because recognition letters could be refused.

The Chairperson agreed that during the process, officials should be mindful of potential abuse. However, the genuine victims should be adequately protected.

Mr Jeffery asked what the practical application was, at present.

Mr Kadwa said that after a rescue, which was normally sparked by a report by the Embassy or another person, SAPS would arrange to interview the person (with interpreters if necessary). The alleged victim would not be taken to Lindlela, but there were other shelters available. If the Embassy contacted SAPS, that embassy would assist in getting emergency passports or travel documents, and in getting safe passage for the victim back to the home country. Deportation of a person would only occur after conclusion of a criminal trial. Normally, DPCI would contact DHA, to inform it that a certain person was needed as a witness.

Mr Jeffery and the Chairperson commented that there were still some grey areas in practice. Technically, victims should be voluntarily repatriated, or, if not genuinely victims, should be deported. The recovery and reflection period allowed a person to stay in the country while giving consideration to his or her options, and that person should not feel pressurised.

The Chairperson asked what role was played by foreign consular services.

Mr Kadwa said that most of the DPCI experiences had been with the Thai Embassy, which was excellent. The Embassy would also assist by paying for the return ticket.

Mr Mokgatlhe said that sometimes the word “rescue” might not be appropriate. He noted that there might not be a full investigation before the person was repatriated. He thought that the embassy should assist in getting an alleged victim back to testify. He was not sure whether it was appropriate for SAPS to be guided by the embassies.

Ms Stuurman commented on the time periods. The victim of trafficking would only be allowed to access counselling once given the letter of recognition. However, the whole purpose of the 90 day period was to allow the victim to make a decision on whether to assist with the prosecution, and counselling was vital to that process. If the 90-day period were to run from an earlier date, then counselling should also be available earlier.

Dr Geldenhuys said that clause 16(9) of the Bill required the DSD to issue the letter of recognition. He thought that the phrase “and after consultation with SAPS” should be added into this clause.

Mr Jeffery thought it should be added into clause 16(7), not 16(9), as part of the assessment. Clearly, there should be no delay in reporting the matter to SAPS, and in getting a report on other aspects. He noted that SAPS, not DSD, would determine whether the person was a victim of trafficking.

Mr Swart said that the SAPS should not be able to block the issuing of a letter, for instance, in those instances where police themselves might be clients of the brothel and be unwilling to give assistance.

Dr Geldenhuys noted that the Victim Empowerment Programme (VEP) services of SAPS would be provided even before the letters of recognition were issued.

The Chairperson asked that the drafters should add the relevant portions to clause 16.

Mr Jeffery noted that the recovery and reflection period related to the residency or visitor status, so it was not applicable to a local victim.

Mr Bassett asked what would kick-start the recovery and reflection period. The DHA might be more comfortable if this was only to start at the request of SAPS.

Mr Jeffery said that the issue relating to a direct approach by the victim would apply to a local or foreign victim. However, there was a gap at the moment where the victim approached an accredited organisation. The recovery and reflection period should start running once the processes had started, and would end if the letter of recognition that the person was a victim was refused. He was not sure whether the SAPS involvement would start the process, because DSD would have to get a police report.

The Chairperson pointed out that at the moment the Bill provided for a “non-renewable” 90-day period.

Mr Jeffery thought the words “non-renewable” should be deleted. A normal visitor’s permit could be extended and there seemed to be no reason why this should not also be able to be renewed.

Mr Bassett cautioned that this was distinguishable from the normal permit situation. If a normal permit was still needed after 90 days, an application could be made after the 90-day recovery and reflection period.

Mr Swart asked DPCI about its experiences with DHA, as the NPA had indicated that there were practical problems.

Mr Kadwa said that he had only dealt with one case, and the process had been quite quick.

Clause 24: Deportation and repatriation issues
Mr Jeffery noted the Bill currently provided that deportation of alleged victims was not allowed in the 90-day reflection and recovery period, and this was necessary to prevent corrupt officials trying to cover up their activities. He asked if there had been instances of corruption. Although it was unlikely that anyone would be deported within the few days’ leeway before the letters of recognition were issued, he asked if there was a need to legislate against this.

Ms Kamagelo Lekubu-Wilderson, Director, Department of Justice, cautioned against putting in unnecessary provisions, as they could be twisted and abused by the traffickers.

Mr Jeffery suggested that clause 24(6) should then be removed, as this would be covered by the recovery and reflection period. It might be useful still to reference this with a footnote.

Mr Jeffery asked why the Bill mentioned DSD repatriating people, as this was a function of DHA.

Ms Stuurman said that DSD had asked for this provision to be included, because it was the department responsible for children. DHA had apparently agreed to its inclusion.

Mr Jeffery thought that clause 24 could be problematic in respect of illegal immigrants, because it provided a legal basis for preventing deportation. Children did require more protection that adults. However, clause 31(2) set out certain conditions to be considered by the Director General of Home Affairs. He did not think that the words relating to “be trafficked again” should be included here, particularly in the labour context. Although the humanitarian aspects were important for genuine victims of trafficking, they also laid the foundations for abuse.

Ms Stuurman agreed that it was possible to keep “harmed or killed” as the only criteria.

Committee Members agreed that “trafficked again” should be deleted.

Mr Jeffery noted that the Palermo Protocol was worded so that States were encouraged, from a humanitarian perspective, to consider adopting legislative or other measures to permit victims of trafficking to remain in their country. The safety of the person returning home must also be considered. The safeguard would be that the person had already been assessed and recognised as a victim of trafficking.

Mr Jeffery asked if the Director General of Social Services did actually attend to repatriation. He wondered if this should not be worded as “Director General of DHA, in consultation with the Director General of the DSD”.

Ms Lekubu-Wilderson cited instances in which officials had accompanied children home.

Ms Schäfer asked that a report be given on which Act had been used to assist them.

Mr Jeffery also asked that the Committee be informed of the relevant provisions of the Children’s Act, and asked for a report on how this was working, to check any differences between clause 31(1) and the Children’s Act.

Ms Schäfer also said that the drafters needed to cross-check the transitional provisions with the current situation.

Mr Swart referred Members to provisions on page 96 of the draft.

Ms Stuurman confirmed that the Director General of Social Development was responsible for repatriation, and that the provisions in the Children’s Act and this Bill were more or less the same.

Mr Bassett asked for clarity on what should be included in clauses 21(2) to (5) on page 36 of the Working Draft. The Bill had initially mentioned six months, but a commentator had asked that this be extended to nine months.

The Committee did not believe this should be changed, and noted that the extension of time was in any event conditional.

Mr Bassett asked whether the reference to willingness to cooperate was still relevant.

Mr Schäfer pointed out that the full 90 days could be taken to make the decision whether to make the decision.

Mr Jeffery suggested that the Committee may need to reconsider if subclause (5) was needed still. He thought that another session was also needed with the DHA, to discuss the finer details, but probably it was not necessary for officials from the NPA, SAPS and other units of DOJ, other than the drafters, to keep attending the meetings. .

Mr Swart noted that various decisions had been taken on issues that impacted on NPA, and he would welcome any comment on those.

The Chairperson confirmed that the NPA should indicate if it wished to be present at future meetings.

The meeting was adjourned.


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