Prevention and Combating of Trafficking in Person Bill [B7 – 2010]

Meeting report

Mr Lawrence Bassett, Chief Director for Legislative Policy from the Department of Justice and Constitutional Development (DoJ&CD) said that most of the proposed amendments from the Department of Home Affairs (DHA) had been included in the Working Draft of the Bill. There were still some outstanding issues such as Clause 22.

The Chairperson asked Mr Bassett to take the Committee through the other clauses.

Clause 42
Mr Jeffery referred to Clause 42(1)(a) and asked if the incumbents referred there had to be consulted by the Minister, it seemed so and why should the Minister have to consult because this would seem too onerous a task. Not all the other incumbents were needed for consultation.

Ms D Schäfer (DA) asked why should there be Regulations for the manner in which the Minister must refer, was it necessary to make provision for the manner in which they had to refer?

Mr Jeffery said that the Bill stated ‘the prosecutor must, in the manner prescribed’, this implied that there had to be Regulations that the Minister had to draft. It was not a bad thing to prescribe how a prosecutor had to refer a trafficked victim. It was not necessary for the Minister to consult with the other incumbents for Clause 42(1)(a) but it was necessary for Clause 42(1)(b).

Ms Schäfer said that for Clause 42(1)(a) the Minister of Social Development (DSD) had to be consulted.

Mr Jeffery agreed. Clause 42(1)(a) had to be a ‘must’ after consultation with the Minister of DSD and ‘may’ in the case of Clause 42(1)(b) with the other incumbents.

Mr S Swart (ACDP) said that in the previous meeting the Committee had discussed protocols and a Memorandum of Understanding (MOU) between the departments, the drafters should look at putting something in the Regulations to cater for this. Having a ‘may’ could result in litigation against the Minister of Justice because there would not be an absolute obligation for consultations; this could result in the Regulations being struck down.

Mr Jeffery said that the ‘after consultation’ was a separate issue, whether it was ‘must’ or ‘may’ did not make any difference.  There was no need to over legislate and things like protocols did not have to be catered for, these could be monitored. Would the Regulations come before Parliament for approval?

Mr Bassett said ‘yes’ and this was provided for in the Bill.

Mr Jeffery said that he preferred the deemed approval of the Regulations by Parliament. Why could the Committee not just say ‘the Minister ‘must’ make Regulations and the Minister ‘may’ make Regulations under Clauses 42(1)(a) and 42(1)(b) as well and then delete the ‘after consultation’.

Mr Bassett said that this was the way the Child Justice Act and Sexual Offences Act were drafted and it seemed to be a developing trend. Before it was always that the Minister ‘may’ or the Minister ‘must’ make Regulations and all this detail was not there. Perhaps it was time to have less complicated legislation.

Mr Jeffery said that the new trend was more viable. The Parliamentary approval was an adequate safeguard. All the ‘after consultation’ phrases should be deleted. The only issue would be that Clause 41(4) should be deleted and provided for under Clause 41(3). All the regulation-making powers should be kept away from the rest of the Bill and remain under the Regulations section.

Ms Schäfer said that Clause 41(4) as it was should be made into Clause 41(1)(b).

The Chairperson and Mr Bassett agreed.

The Chairperson asked if all the listed incumbents knew that they would be required to draft Regulations.

Mr Bassett said that they had already started, especially DSD. 

Clause 43
Mr Jeffery confirmed that the Committee had taken out the letter of recognition for the recovery and reflection period and the Clause had to reflect this.

Ms Engela Steyn, DoJ&CD State Law Advisor, referred to Clause 43(3)(f) and said that the Committee had indicated on 6 September that the two responsibilities there had to be the prerogative of the Minister of DSD.

Mr Jeffery said that the Committee had indicated that the responsibility should be DSD’s as opposed to the accredited organisations which had to come out under the clause. It was more appropriate in terms of decentralisation that the responsibility of appeals was with the Provincial Member of the Executive Committee (MEC).The Committee had already decided that under Clause 43(3)(g) the responsibility should be with DSD.  Officials were not a statutory collective like Ministers who met fortnightly therefore the consultation requirement for officials should remain at a Director-General (DG) level. Perhaps the words ‘must where applicable with the relevant department’ could also be used.

Clause 44
Ms Schäfer referred to Clause 44(7)(a)(i) and asked if DSD had any problems with publishing Directives.

Ms Steyn said they had never indicated that they had any problems.

Mr Jeffery said that the DoJ&CD Directives had to be tabled for 30 days, did this apply to all the other departments?

Mr Bassett replied that the Directives for the South African Police Service (SAPS) were not due for tabling.

Major-General Tertius Geldenhuys from SAPS cautioned about the publication of the SAPS Directives because it may enable traffickers or would-be traffickers to know how the police would deal with them and counter this.

Mr Bassett said that in other legislation similar SAPS Directives were not published either.

Ms Lowesa Stuurman, Researcher from the South African Law Reform Commission (SALRC), asked if the DG for Labour should not be tasked with the task of also providing the DG of the Department of Justice with relevant information. This was not covered in the Bill.

Mr Jeffery said that this was covered on page 67.

Clause 45
Mr Jeffery proposed that Clause 45 be accepted as it was currently amended.

The Chairperson agreed.

Mr Bassett said that there were certain provisions which the Department was saying should not be delegated.

Mr Jeffery asked that those provisions should be checked with the relevant DGs.

Schedule
Ms Steyn said that the Committee had to take note that many of the amendments of the Acts in the Schedule were aimed at replacing the provisions of Section 71(1) or 71(2) of the Criminal Law (Sexual Offences) Amendment Act. Section 71(1) dealt with the offence of trafficking in persons for sexual purposes and Section 71(2) dealt with the offence of the involvement of trafficking in persons for sexual purposes.

Mr Bassett added that the Asset Forfeiture Unit (AFU) had requested a reference to the Prevention of Organised Crime Act (POCA) in the Schedule be added for the offences. This had been done.

Ms Kamogele Lekubu-Wilderson, DoJ&CD Director for Victim Support and Specialized Court Services, said that the South African Revenue Service (SARS) had not been added as a body that was necessary for consultation where coordination mechanisms were concerned. This should be considered because SARS was responsible for ports of entries and they also had a Border Control Operational Coordinating Committee that would play a role in combating trafficking at ports of entry.

Mr Jeffery asked if custom officials were under SARS or the DHA?

The response was SARS.

Mr Bassett said that if SARS was included then this would be in the Directives.

Mr Jeffery agreed.

Mr Bassett said that there were other changes in the Bill that the Committee could go through. The Department suggested that Chapter 4 should be made part of Chapter 3, which dealt with the identification and protection of victims. There was a provision with the heading: Prosecution in respect of foreign victims of Trafficking’ which would have to be inserted as well.

Mr Jeffery said that Chapter 4 did not relate to the identification and protection of victims.  The provisions of Chapter 4 did not belong under Chapter 3 which was general. Chapter 2 was the one in which Chapter 4 could go into at the end or it could remain as a separate chapter with a different heading. If it was a separate chapter then it would have to follow immediately after Chapter 2.  

Ms Schäfer said that it could be a separate chapter or it could follow immediately after Chapter 2.

The Chairperson said that it should be separate.

Definitions
Ms Schäfer said that under the definition of ‘removal of body parts’ she was under the impression that the Committee had discussed this and it was clear that there was a need for a clear definition. The current wording was also not correct, there had to be a comma after ‘trafficked’ and one could not refer to ‘forced removal from the body of a deceased person’.

Mr Jeffery added that the word ‘unlawful’ should also be added.

Ms Suraya Williams, State Law Advisor, proposed the following definition: The removal of body parts means the unlawful removal of or trade in any organ or other body part from a person who has been trafficked or the body of a deceased who has been trafficked for the purpose of the unlawful removal of any organ or body part in contravention of the National Health Act’. The removal of ‘living person’ was because sometimes a person may die as a result of the removal of the body part.

Ms Schäfer said that the question was what was a body part?  It was unclear from the proposed definition whether this was covered.

Mr Jeffery said that his worry was that the definition was limited to persons who were trafficked with the intention of having their body parts removed. The definition should be wider to cover a situation where a person was there for another reason but upon their death their body parts were removed. The definition could be ‘the unlawful removal or trade in a body part from a living person who was trafficked or a deceased person who was trafficked while they were still alive’. The contravention of the National Health Act could remain.

Ms Schäfer said that she thought the Committee had agreed that a forced marriage of any kind would be wrong. The current wording had forced marriage only for the purpose of exploitation and this may not cover everything. More consideration should be given.

Ms Stuurman said that exploitation was used here because it was a requirement for the definition of trafficking unless one made it a separate offence.

Mr Jeffery agreed that exploitation was a requirement for the main offence of trafficking, if forced marriage was on its own, then it may run wider than what was intended. Any forced marriage was illegal but was it for trafficking? The definition was fine as it was.

The Chairperson said that Clause 4 set out what trafficking meant. He felt that a scenario where a foreigner who came to South Africa to marry a citizen under duress, would fall under trafficking.

Ms Stuurman said that the Palermo Protocol itself required an element of exploitation for a crime to be considered as trafficking.

Ms Schäfer asked what of people who moved babies around for adoption.

Ms Stuurman said that this would fall under illegal adoptions if the correct procedure was not followed. This fell under illegal adoptions.

Clause 2
Mr Bassett said that the National Prosecuting Authority (NPA) officials had said that it would not be a problem to keep the clause as it currently was. POCA had an exact word for word provision that was the same as Clause 2. The wording in POCA was ‘ought reasonably to have known’ or ‘ought to know’.

Mr Swart said that the Committee should want to assist the prosecution as much as possible. The Financial Intelligence Act referred to ‘ought reasonably to have known’ or ‘suspected’. The NPA had given the Committee other examples as well as a long explanation on why ‘ought reasonably to have known’ should be used. Why should something that could assist the prosecution be taken away? Did the NPA no longer want the wording?

Mr Bassett replied that Adv Nel had said that it would not hurt to include the wording.

Ms Schäfer said that she was more worried about the meaning. Surely one was covered with ‘ought reasonably to have known’?

Mr Jeffery said that he was not clear on the difference between ‘ought reasonably to have known’ and ‘suspected’. It was better to have ‘to have known’ and ‘ought reasonably to have known’. It was not clear why ‘suspected’ was there. Mr Swart’s concerns were appreciated but the worry was that ‘suspected’ could be open to challenge. If ‘suspected’ were to be used, then the Committee would have to assign a meaning that was different to ‘ought reasonably to have known’.

Major General Geldenhuys said that there was a huge difference between ‘ought reasonably to have known’ and ‘ought reasonably to have suspected’. ‘Known’ meant that the person should have had knowledge, suspicion had a lower requirement.

Mr Jeffery said that the Committee was not talking about ‘ought reasonably to have suspected’ but just ‘suspected’. There was a difference between knowledge and suspicion but the concepts in the Bill were ‘knowledge’ and ‘ought reasonably to have known’. The problem was that the concepts were lumped together under Clause 2(2). Could one achieve a conviction on the basis of the mens rea element with just suspicion even though the concept itself was knowledge?

Major General Geldenhuys pointed out that and ‘ought reasonably to have suspected’ was not in the Bill and perhaps it could be inserted because it was different from ‘ought reasonably to have known’. What was the Committee trying to achieve with ‘ought reasonably to have known’ because this implied that one should have had knowledge of the fact. It should be enough if a person should have suspected.

Mr Jeffery asked if it was constitutionally correct if one could get convictions based on suspicion? Furthermore ‘ought reasonably to have suspected’ was even wider.

Mr Jeffery said that in Kyle vs Van der Merwe ‘suspected’ was used. There was jurisprudence on the matter from our courts. The NPA should assist in this matter.

Mr Jeffery said that he did not feel that the NPA were the right people to consult on this issue because they would want to have the prosecution to be as easy as possible. A criminal law academic should be consulted instead.

The Chairperson said that he would allow a comment from the NPA.

Adv Marshal Mokgatle, Deputy Director from the NPA, said that the offence of trafficking had to be considered, and the fact was that trafficking was a hard crime to detect. The burden of proof sought would not give the prosecution undue powers and the courts always had the final say. The prosecution still had to prove its case beyond a reasonable doubt. The NPA was of the view that ‘suspicion’ should remain because if it was removed then the burden of proof would be raised through the ‘ought to have known’ requirement.

The Chairperson said that the Committee should find a criminal law expert to guide them on this issue and it could not be taken any further now.

Ms Schäfer said a further problem was that ‘suspected’ as it currently reflected in the Bill did not mean anything because ‘ought reasonably to have known’ and ‘suspected’ were in the same clause with the same requirements.

Clause 13
Ms Steyn said that the Committee had to give guidance on the issue of prescribing a longer term of imprisonment with regards to failure to report.

Mr Jeffery said that there was a document that had a comparative study with other legislation where it transpired that the sentence in the Bill was lower than the norm; the Committee should follow the norm.

Mr Bassett said that the comparative legislation were the Sexual Offences Act and the Children’s Act which had a five and ten year prison sentence for failure to report respectively. The Committee should also be aware that Regional Courts could impose life imprisonment but only in respect to minimum sentences otherwise they could give up to 15 years imprisonment or fines of up to R300 000. The Department was considering increasing the fine.

The Chairperson agreed that the prison sentence should go up to five years.

Mr Jeffery said that he was not comfortable; it was not right to increase the jurisdiction of the Regional Courts.

Mr Swart said that he was confused because Clause 13(1)(a) was a minimum sentence. The Committee did not even have to mention that the Regional Court could impose a life sentence in this regard. In any case all sentencing went to the High Court for review. Was there a need to specify the fine amount for Clause 13(2)?

Ms Schäfer agreed with Mr Jeffery insofar as increasing the jurisdiction was concerned.

Mr Jeffery said that in light of what has been said, Clause 13(2) should fall away.

Mr Swart asked if the Regional Court had wider jurisdiction in terms of POCA. The point made by Mr Jeffery on 13(1)(a) was agreeable but why was there an objection to Clause 13(1)(b)?

Mr Bassett said that there was something in POCA.

Mr Jeffery said that Clause 13(1)(b) should fall away and Mr Swart could raise it later. In any case POCA was about something else and it did not mean that one would want to put it here. The main issue was the appropriate court and the High Court could decide the appropriate penalty.

Clause 16
Ms Steyn said that two options on the type of lists had been drafted, as requested by the Committee.

Mr Jeffery said that only three people were specified and then it was said anyone else, a social worker and medical practitioner should be specified as well because they were most likely to come across a victim of trafficking as opposed to a traditional healer. Either the drafters could say ‘any person who came into contact’ or not name anybody or they could have a list of persons and then add ‘or any other person in the execution of his/her duties’.

Mr Swart agreed with the latter suggestion.

The other Members agreed.

Mr Jeffery asked what was the difference between 15(1)(a) and Clause 16(1)(a).

The Chairperson said that the one dealt with a child and the other with an adult person.

Mr Jeffery asked if there was any difference in the requirement, was there a higher duty for children than there was for adults? If the clauses were the same, would it not be better to have them as a standalone clause and then the sections that were different could be dealt with in their own clause?
 
Mr Bassett said that there was a difference when it came to the reporting of children, every single person in South Africa had a duty to report.

Mr Jeffery said that this would mean they should be separate. Under Clause 16A(3), there should a specific reference to the Immigration Act.

Clause 17
Mr Bassett asked if it would not be better in terms of drafting to insert the assessment provisions under Clause 17 into Clause 15 which dealt with the reporting of a child.

The Committee agreed.

Clause 19
Ms Schäfer referred to Clause 19(3) and said that she was not sure this should be limited to a person who were being charged in a criminal prosecution. ‘Involved in a criminal prosecution’ was better.

Mr Jeffery said that the reason for the clause was for the protection of persons who were victims of trafficking that had been accused; the duty to report was already under Clauses 15 and 16 and thus applied to the prosecutor as well.

Mr Basset asked if the first option was viable.

Mr Jeffery said the section applied to the accused, a witness did not require protection under this clause because they were not being charged, and the reporting duty was covered under Clause 15 and 16.

Ms Schäfer asked what if such a person was asked questions which resulted in them incriminating themselves, should they not get the same protection?

Mr Jeffery said that they would have the same rights as anybody else.

Ms Schäfer agreed.

Ms Steyn asked if prosecutors should be added onto the list of persons obligated to report as well.

Mr Jeffery said that the ‘any other person in the execution of their duties’ would include prosecutors.

The Chairperson said that to add prosecutors would result in the list growing longer.

Mr Jeffery said that Clause 19(3) was not necessary as it was covered under Clauses 15 and 16, it should come out.

The Committee agreed.

Clause 31
Mr Jeffery requested that the officials should check whether the DG of DSD had the power to repatriate.

Mr Basset said that the provisions that linked with Section 31(2)(b) of the Immigration Act would be inserted under this clause.

Clause 33
Ms Steyn said that reference was being made to a person who was suspected to be a victim of trafficking under Clause 33(a)(i).

Ms Schäfer asked if it was not said the previous day that these people were already victims of trafficking at this stage.

Ms Stuurman said the problem was that one could not just assume that the other country would have declared a national as a victim of trafficking; they may even have different procedures in terms of declaring them as victims when compared to the procedure in the Bill. One would not want to have a person come into the country under the guise of a victim of trafficking only to find that they were not. Such a person would have to go through the process as provided for in the Bill. 

Clause 34
Ms Steyn indicated that the Committee was yet to decide on ‘place’ or ‘area’.

Mr Jeffery said that ‘place’ was more specific.

The Chairperson said that the drafters thus had to be consistent throughout the Bill with the use of ‘place’.  

Ms Steyn referred to Clause 34(1)(b) and said that the words ‘or trafficked again’ should be deleted.

Mr Jeffery said ‘no’, this was within the Republic. The concern was with people who wanted to stay in the Republic for fear of being trafficked again.  The ‘trafficked again’ was not a problem in relation to internal traffickers because it was a consideration that had to be given.

Clause 41
Mr Jeffery referred to Clause 41(1)(b)(xvii) and said ‘provided’ should be used.

The Committee agreed.

Mr Bassett indicated that this was the end.

The Chairperson thanked all the drafters.

The Committee agreed that time should be made in the week of 5 December 2011 for a clean Bill to be drafted with all outstanding issues addressed for consideration.

Meeting Adjourned.