Prevention and Combating of Trafficking in Persons Bill: Department of Home Affairs submissions and further deliberations

Meeting report

Department of Home Affairs comments on the Prevention and Combating of Trafficking in Persons Bill
Mr Mkuseli Apleni, Director General, Department of Home Affairs, noted that the delegation from the Department of Home Affairs (DHA) had been mandated by the Minister of Home Affairs to attend this meeting.

The DHA believed that the Prevention and Combating of Trafficking in Persons Bill (the Bill) should, in light of the Immigration Act and Refugee Status Act, have the objective of either re-uniting victims of trafficking with their families or returning them to their countries of origin. Trafficking suggested that a person was removed unwillingly from his or her own country and DHA was of the view that such person should be assisted in going back to the home country and reunited with his or her family.  Where victims were cooperating with law enforcement officials then the Minister of Home Affairs could, in terms of Section 31(2)(b) of the Immigration Act, and subject to any terms or conditions, grant such a victim the rights to reside in South Africa for a specified or unspecified period, without granting permanent residence. At the end of this period such a person would be re-united with his or her family and sent back to the country of origin. The rights that the cooperating victim would be entitled to would include the right to education, health care, housing and other rights in the Bill of Rights, except the right to vote. Where a victim refused to cooperate then he or she had to be repatriated. A victim of trafficking who was reflecting and recovering should be given a three month visitor’s visa. Section 32 of the Immigration Act allowed the Minister to grant a foreigner or a category of foreigners the rights of permanent residency for a specified or unspecified term, with certain conditions where special circumstances existed.

It was the view of the DHA that there was no need for the Immigration Act or Refugee Act to be amended via the Prevention and Combating of Trafficking in Persons Bill. The DHA proposed that  instead there should reference to Section 31(2)(b) of the Immigration Act. There had to be cooperation between the various stakeholder departments, including the development of protocols and a Memorandum of Understanding (MOU). There should be guidelines for the granting of temporary residence and return of victims.

Clause-by-Clause Deliberations
Clause 17
Mr Johan Erasmus, Chief Director: Legal Services, DHA, said that Clause 17 should be deleted as the exemption mentioned there would be granted in terms of Section 31(2)(b) of the Immigration Act.

Mr J Jeffery (ANC) said that children were a different category, and were provided for in terms of existing legislation specifically the Children’s Act of 2005. Given that the provisions of the Children’s Act had been in existence of six years, it may not be ideal to abolish them. In any event if DHA were to be granted its request then the sections in the Children’s Act would have to be deleted.

Dr M Oriani-Ambrosini (IFP) said that the difficulty with Clause 17 was that it provided an additional ground for a refugee status. It was not one of the grounds in the Refugee Act and Geneva Convention. The solution that DHA was proposing was difficult, as the exemption that existed in the Immigration Act was very difficult to obtain. A further problem was that it allowed for an assessment that DHA was not equipped to make. He therefore proposed that the provision should remain, but that the Court be asked to grant an order whereby the child was allowed to remain in the Republic, with set terms and conditions, having due consideration to the Immigration Act.

Mr Jeffery said that his reading of the Refugees Act was that it did not apply to trafficked victims in general. It would thus seem that the provisions in the Children’s Act which were the same as those in the Bill were wrong. It was possible to delete clause 17 if section 290 of the Children’s Act remained. 

Dr Oriani-Ambrosini said that he saw a difficulty with the coordination between DHA and the Department of Social Development (DSD), as the latter was not responsible for repatriation and the former was not equipped to make assessments of children, or even adults. A mechanism had to be developed that combined the powers of DHA with the assessment capabilities of the other departments.

Ms D Schäfer (DA) said that Section 31 only dealt with the repatriation of persons, and not the current status of persons who were covered by the Act.

Mr S Swart (ACDP) said that he was concerned that if clause 17 was removed, then there would be no provision that dealt with child trafficking. The whole of Chapter 18 of the Children’s Act was being repealed in this legislation.

The Chairperson asked the delegation from DHA to take note of what had been said by the Members.

Mr Jeffery asked if a child victim of trafficking could make an application under the Refugee Act. He thought that the original clause 17(1) could remain, but reiterated that in this case there may be a problem with the Children’s Act. If a child victim was a witness in a case, then Clause 22 and 23 would apply. He asked if there was a lacuna in the law and if anything had to be done to fill it. There was no argument presented to say that child victims should be provided for, and should be able to stay. Clauses 17(2) and 17(3) did not apply because they were linked to the Refugees Act, which did not cover child victims of trafficking. 

Mr Apleni said that DHA would support the proposal for the retention of Clause 17(1).

Mr Erasmus said that it may well be that any application under clause 17(2) and 17(3) could be refused.

Mr Swart said that he agreed that this was an assisted application that may not succeed. He agreed with Mr Jeffery’s suggestion to delete clauses 17(2) and 17(3).

Clause 21
Mr Erasmus said that the DHA’s suggestion on clause 21 was contained in the document submitted by DHA. It was important to note that in DHA’s submission there was reference to a visitor’s visa in accordance with Section 11(1)(b)(4). The circumstances setting out when a victim could be issued with a visitor’s visa could be inserted in the Regulations. DHA also proposed that the recovery and reflection period must not exceed 90 days. Clause 21(2)(b) should be deleted, because of the removal of the ‘letter of recognition’, as this clause referred specifically to persons who were issued with the letter as provided for in Clause 16(10).

Mr Jeffery said that the reason why the reference to the letter of recognition was deleted was that the Committee wanted the 90 day period to commence immediately the letter of recognition was issued. The intention under Clause 21(2)(b) was that where an applicant had submitted false information, or where his or her letter of recognition was withdrawn,  then the 90 day protection would fall away. The Committee wanted to tighten Clause 21(2)(b) so that those who did not qualify for the 90 day protection could not abuse it.

Mr Swart referred to Clause 21(1) and asked if the word ‘must’ or ‘may’ should be used. The Committee also had to look at protocol and decision making so that the process on the ground may be swift and decisions were issued quickly.

Dr Oriani-Ambrosini said that at times victims would need certain undertakings, such as studying or finding a new job in order to recover, and this would not be possible through a visitor’s visa. A person who had been through so much trauma when trafficked could not be forced to leave and then face more trauma in the rebuilding of his or her life. The Committee had to consider this from a humanitarian perspective.

Mr Jeffery said that the Committee had agreed on the position that foreign victims of trafficking had to leave the country. The only category who would be required to stay would be those victims who were  assisting law enforcement authorities. The issue of victims studying and working was thus not applicable. DHA seemed to want to have provisions inserted in existing categories and not have new provisions introduced. The visitor’s permit was, for the most part, acceptable. The reflection and recovery period was set out for victims to consider whether or not they would assist law enforcement authorities, not other purposes.

Ms Amanda Ledwaba, Director: Law Enforcement,  DHA, said that she agreed with Mr Jeffery, and said that in the majority of cases a victim of trafficking would want to be re-united with his or her family and returned to their country of origin.

Ms Schäfer asked what would happen if the DHA took too long to issue a visitor’s permit. She wondered whether a time period for this should be specified. She asked what the status of the person would be during the processing of the permit.

Mr Erasmus said that if such a person was undocumented then he or she was regarded as an illegal foreigner in terms of the Immigration Act.

Ms Schäfer said that this was not desirable for victims of trafficking, and this issue would have to be addressed.

The Chairperson reiterated that the Committee was worried about the DHA’s delays in processing applications.

Mr Erasmus said that this was an administrative issue, which was usually not catered for in legislation.

Mr Apleni added that this was why the DHA wanted protocols and agreements in place between the various stakeholder departments.

Dr Oriani-Ambrosini said that this was not merely an administrative issue. There was a possibility that a foreign victim may be deported whilst his or her application was being progressed, if he or she did not have the necessary papers to stay in the country.

Mr Jeffery said that the Committee had already discussed this issue and reached consensus on it. With regard to the possible delays in processing from DHA’s side, he suggested that no discretion should remain with the Director General of the DHA and therefore the wording used should be “must”.

Ms Ledwaba said that the current position was that any person who had applied for a permit may not be deported until a decision had been taken and the outcome of the application has been notified.

Ms Schäfer asked if this was set out in legislation.

Ms Ledwaba replied in the affirmative.

The Chairperson asked in which piece of legislation this provision was to be found.

Adv Tsiyetsi Sebelemetja, Director: Drafting and Legal Services, DHA, said that the specific provision would be provided later to the Committee

Mr Apleni said that the discretion of the Director General of DHA should remain. The Bill could then say that a person may not be deported until she or he had been notified of the decision on the application. There may be circumstances where the Director General may have to apply his or her mind to issues.

Mr Jeffery said that the word ‘may’ could be used but then there must be a cross reference to the Immigration Act, so that a person may not be deported until informed of the outcome of their application.

Ms Schäfer said that she was still concerned about the wording. She wondered if the Director General of DHA should have the discretion to refuse, even if law enforcement officials had indicated that they needed a particular victim to remain in the country.

Mr Jeffery said that this was a policy matter and he had some sympathy for the view of the DHA. He thought that “must” was quite proscriptive, and did not cater for unknown circumstances. If the Director General of DHA made a mistake then this could still be challenged. Generally, there was no harm if it was discretionary.

Dr Oriani-Ambrosini said that it would make sense for a letter of recognition to be issued because that letter set out everything that would identify the victim, and it provided an indication of status as well.

Ms Ledwaba said that she did not see how a letter of recognition that was issued by DSD, which did not fall under the Immigration Act, could legalise a person’s stay in the country.

Mr Jeffery said that a letter of recognition did not give a right to stay, but only gave entitlement to certain rights and services. The Committee had been clear on the point that those who were trafficked should be repatriated, and that this Bill should not be used for illegal foreigners to stay in the country. It should be remembered that a letter of recognition was also issued to locals. All this confusion around the letter of recognition meant that perhaps Clause 21(2)(b) should be deleted.

Mr Erasmus asked if the Letter of Intent should be a requirement for the application of a visitor’s visa, and said that if it was not, then the letter of recognition should be done away with.

Mr Jeffery said that the letter of recognition was something in which essentially the DHA had no interest. It gave a victim no rights under the Immigration Act, but merely catered for rights to services.

Adv Sebelemetja agreed with Mr Jeffery. The deletion of Clause 21(2)(b) would not necessarily do away with the letter of recognition, as it was still provided for under Clause 16, which related to DSD and not DHA services.

Ms Lowesa Stuurman, Researcher, South African Law Reform Commission, said that there had to be a distinction made between the situation where a foreigner was a victim of trafficking, and an assessment where a person was found not to have been a victim of trafficking. A victim of trafficking would have to be repatriated, as provided for in Clause 31.

Ms Ledwaba agreed with Ms Stuurman.

Clause 21
Mr Erasmus said that the next submission from DHA was that Clause 21(4) should be deleted.

Mr Swart said that, in relation to Clause 21(4), the question was whether DSD could finalise its investigation within 90 days. There may be a need to extend this period.

The Chairperson said that clause 21(4) essentially covered a request from DSD to the Director General of DHA, for an extension where the investigation was not concluded in the stipulated time, and nothing was automatic.

Mr Erasmus said that in that case a proviso should then be included in Clause 21(1) for the extension.

Adv Sebelemetja informed the Committee that the visitor’s permit could be extended for a further three months, but not beyond six months.

Mr Jeffery said that the wording should be changed from “three months” to “six months” or “a further 90 days”.

Adv Marshal Mokgatle, Deputy Director, National Prosecuting Authority, asked DHA if the time periods should be the same for a victim of trafficking and an illegal foreigner.

Mr Erasmus said that the legislation for DHA provided for a three month renewable period, which would also not extend further than six months. It was not possible to make the pieces of legislation different.

Mr Jeffery referred to Clause 21(2) and Clause 31, and said that he was worried that these clauses provided that two Directors General, heading different departments, would be conducting similar investigations.

Mr Erasmus proposed that, under Clause 21(5), the words ‘granting of a non-renewable recovery and reflection period’ should be removed and replaced with ‘issued with a visitor’s visa’.

Mr Lawrence Bassett, Chief Director: Legislative Policy, Department of Justice and Constitutional Development, agreed that this would make sense.

Mr Bassett also noted that at the last meeting the drafters were requested to delete clause 21(5)(a), and asked if perhaps DHA wanted to add something on this.

Ms Stuurman suggested that clause 21(5)(a) should be retained, so that it would not be used by law enforcement officials as a bargaining tool to force victims to assist in investigations

Mr Erasmus agreed that it could remain.

Clause 23
Mr Erasmus said that DHA was of the view that the whole clause should be deleted, as no permanent residence should be granted to a victim of trafficking.

Mr Jeffery said that the Committee wanted to provide for victims who had testified and, because of that testimony, their lives would be threatened by the trafficking syndicates in their country of origin. The new Clause 23 provided that the National Director of Public Prosecutions (NDPP) may apply to DHA, on behalf of such a person.

The Chairperson pointed out that ‘may’ was used and therefore this was discretionary.

Mr Apleni said that he would not like to be obstructive, but felt obliged to point out that the DHA was in the process of de-linking the issuing permanent residence from the number of years that a person had been lawfully living in the country. DHA wanted to have a discretion to question why a person was needed in the country, despite what they were doing here, and to ascertain what benefit would accrue to the country by having such a person. If victims wanted to apply in terms of Section 31(2)(b) of the Immigration Act, then there was no problem.

Mr Jeffery explained that clause 23 would be deleted and the Committee was only considering Option 1 and 2 on the next page.

Mr Erasmus said that DHA would then consider the options, together with the drafters, and come back to the Committee on this point.

Clause 27
Mr Erasmus said that the words ‘and the visitor’s visa contemplated in Section 21(1)’ should be inserted after the word ‘recognition’.

Clause 31
Mr Erasmus proposed that everything should remain in this Clause, except for Clause 31(1)(b), where instead there would be a reference to Section 31(2)(b) of the Immigration Act. Clause 31(1)(b)(iii) should be reworded to read: ‘to facilitate the issuance of travel documents’, as opposed to using ‘to issue travel documents’. 

Adv Sebelemetja said that DHA would facilitate where all factors had been considered and it was safe for the child to be returned to his or her country of their country of origin.

Dr Oriani-Ambrosini said that the Committee and the departments may not have properly considered the conditions that victims faced. Some child victims of a very young age were trafficked and forced into prostitution. In such circumstances the discretionary power of the Minister was not ideal, especially given the DHA’s history on performance. A clear process where social workers and DSD were involved should be provided for in the Bill.

Mr Apleni said that DHA would facilitate the issuing of travel documentation, based on the assessment by the Director General of DSD, since assessments had nothing to do with DHA.

Mr Jeffery said that where it was not safe for a child to be returned to his or her country of origin, after the assessment under this clause, then Section 31 of the Immigration Act should apply and there should be an application made by the Director General of DSD to the Minister of DHA.

Mr Swart said that he agreed with this proposal. He suggested that the drafters consult on the best wording.

Mr Bassett asked if the suggestion was that clause 31(1) in the Bill should be linked with Section 31(2)(b) of the Immigration Act.

Mr Jeffery confirmed that this was correct.

Mr Erasmus said that DHA would work with the Department of Justice drafters, to draft the necessary wording.

Mr Jeffery referred to Section 31(2)(b) of the Immigration Act and said that the National Prosecuting Authority (NPA) had complained that the process took too long, from the side of DHA.

Ms Ledwaba replied that this was an administrative problem, and the NPA should explain where the requests were being delivered. She pointed out that she had received requests herself, although they should have been delivered to the Minister of Home Affairs. The proposed Memorandum of Understanding and protocol arrangements should correct this problem.

Mr Jeffery said that if this was an administrative issue, it should be the responsibility of the Director General, not the Minister, who was the political head. The Director General should, in addition, have the power as the process would be speedier.

Mr Erasmus said that delegation by the Minister to the Director General was provided for in legislation.

Mr Apleni added that DHA was in the process of making many changes to try to speed up processes. The DHA was included in this Bill. If law enforcement officials needed someone to be in the country to assist in an investigation, then this must be fast tracked.

Ms Kamogele Lekubu-Wilderson, Director: Victim Support and Specialised Court Services, Department of Justice and Constitutional Development, suggested that instead of protocols there could be provisions inserted in the Regulations for the fast tracking of applications from the NPA and South African Police Services (SAPS).

Mr Jeffery said that he was not convinced by DHA’s arguments. He thought that the Committee must ensure that it provided for an expeditious process in the primary legislation and not in the Regulations, protocols or MOUs. He asked that DHA should look further at the possibilities.

Mr Apleni agreed that DHA would reflect further on the matter.

Mr Swart said that if the main concern with Clause 31(2)(b) was with the delays and if the Committee was attempting to resolve this through visitor’s permits, he was worried that certain rights may be taken away from the victims. If the NPA was having problems with delays, in relation to the issues covered in clause 31(2)(b), then it was likely that the issuing of visitor’s permits might also be delayed. The Committee had to address the issue of delays, and this could perhaps be done in the Regulations. It was an administrative issue.

Mr Erasmus referred to Section 11(1)(b)(iv) of the Immigration Act, and said that this provided for a person to stay for three years. The DHA could not go beyond this period, and this was where the Section 31(2)(b) exemption was applicable. If a case went beyond three years then this would be a problem. That was the reason why the DHA preferred the exemption.

Mr Jeffery said that the Committee wanted an expeditious mechanism that would enable South African Police Services (SAPS) and the NPA to keep a person in the country if he or she was needed for the investigation or prosecution. The Committee also needed an expeditious mechanism for the issuing of the necessary permits or visas.  The Committee further wanted to ensure that when that person was no longer needed, his or her ability to stay would fall away.

Mr Erasmus noted all these points.

Clause 33
Mr Erasmus said that the DHA proposed that the word ‘suspected’ should be removed from Clause 33(a)(i).

Mr Jeffery said that the clause was in relation to South Africans who have been trafficked to another country and the word ‘suspected’ was used because it would not be clear whether they were victims or not. The requirements were set out in the Palermo Protocol.

Ms Stuurman said that she was concerned that a foreign country would repatriate a South African citizen, based on that country’s own processes, which may not be adequate for declaring that a person was indeed trafficked. If the word “suspected” was deleted, then by default that would mean that a person was a victim, despite any flaws in the assessment process. Such a person would also have access to benefits that were in fact meant for real victims of trafficking.

Mr Erasmus proposed the insertion of ‘parents or legal guardian’ instead of ‘child protection organisation’ under Clause 33(a)(iii).

Mr Jeffery said that the reason for the use of ‘child protection organisation’ was that parents may be involved in the trafficking themselves.

Clause 44(5)
Mr Erasmus said that Clause 44(5)(a)(i) and (ii) should be deleted as there was no need to publish directives, and this would be costly.

Mr Jeffery said that the provision was included because the public had to have access, and there was a lot of public interest in the Bill.

Adv Sebelemetja said that the DHA’s Directives were accessible if requested. Publication in the Gazette would cost R1 000 per page.

The Chairperson said that in this case they should at least be published on the DHA website.

Adv Sebelemetja agreed.

Schedule 1
Mr Bassett said that the technical issues in the Schedule would be dealt with after the other provisions, proposal and amendments in the Bill were finalised.

The Committee agreed that this would be acceptable.

The meeting was adjourned.