The Portfolio Committee on Justice and Constitutional Development continued with deliberations on the Prevention and Combating of Trafficking in Persons Bill [B7-2010]. Under the Definitions Clause the Committee decided to insert Option 1 for the definition on ‘Body Parts’ because it was broad and captured as much as possible. Under the definition: ‘Removal of Body Parts’ the Committee questioned the insertion of ‘unlawful’ because if ‘unlawful’ was included then there could be a dispute as to whether the removal was unlawful or not. The Committee inquired under Clause 7 whether anyone has ever been convicted or prosecuted where ‘suspected and ought reasonably to have known’ were used. The Committee selected the Option in respect of Clause 19(1)(a) on page 29 of the Working Draft under Clause 19. There was a debate around whether the Regulations had to be tabled before Parliament for approval, the Committee agreed that the Regulations would be tabled and approved by Parliament after which they would be published on the Department of Justice and Constitutional Development’s website. The Committee rejected the request to have oral hearings from MWEB and the Internet Service Providers Association on certain concerns they had on the Bill. The Committee was of the view that the entities should have raised this during public hearings as the clauses in question were part of the introduced Bill and had not been amended.
Prevention and Combating of Trafficking in Persons Bill [B7 – 2010]: deliberations
Ms Engela Steyn, State Law Advisor from the Department of Justice and Constitutional Affairs (DoJ&CD), indicated to the Committee that there were three different options for the definition of body parts and then Committee was yet to select one.
Mr J Jeffery (ANC) asked what the definition of human tissue was in the National Health Act (NHA).
Ms Steyn read from the NHA and said that it was human tissue that included flesh, bone, a gland, an organ, skin, bone marrow and body fluid however it excluded blood or a gamete.
Mr S Swart (ACDP) said that the second option included blood and gamete in addition to the definition in the NHA, it was more preferable.
Mr Jeffery asked if there was a definition for a gamete in the NHA and was an organ included under tissue.
Ms Steyn said that an organ was included as tissue however it was defined separately as per the NHA.
Mr Jeffery said that he would prefer Option 1 because it referred to gamete, organ and tissue as per the NHA. However Option 2 included everything and was thus probably safer.
Adv S Holomisa (ANC) said that he would prefer the option that covered everything.
The Committee agreed.
Removal of Body Parts
Ms Engela Steyn said that the State Law Advisers had proposed the inclusion of ‘unlawful’.
Mr Jeffery said that this did not make sense because if ‘unlawful’ was included then there could be a dispute as to whether the removal was unlawful or not. Should the National Prosecuting Authority have to prove unlawfulness because of the inclusion of ‘unlawful’, whereas if ‘unlawful’ was left out then it was just that the person would be trafficked for the purpose of having their body parts removed whether or not they consented to the removal of the body part.
Ms Suraya Williams, State Law Adviser from the Office of the Chief State Law Adviser, explained that ‘unlawful’ was proposed because previously it meant the forced removal of the body parts. The issue of consent had been raised hence the referral to other laws that were prohibitory.
Mr Jeffery asked where the actual crime was because the section under discussion was the definitions only.
Ms Steyn said that the definition of exploitation included the removal of body parts.
Mr Jeffery asked why the removal of the body part had to be unlawful, why was this element necessary?
Mr Lawrence Bassett, Chief Director for Legislative Policy from the DoJ&CD, suggested that ‘involuntary’ could be used instead.
Ms Steyn referred to page 8, footnote 25 and said that there were NHA sections that dealt with this. Section 55 provided that a person may not remove tissue, blood for commercial purposes.
Mr Jeffery asked if it was criminalised.
Ms Steyn replied that it did not seem like the sections in the NHA had criminal sanctions attached to them.
Ms Lowesa Stuurman, Researcher from the South African Law Reform Commission (SALRC), said that the Human Tissue Act was usually used in prosecutions.
Mr Jeffery cautioned that the Bill should not concern itself with issues that fell outside its scope. The Bill dealt with trafficking and not the unlawful removal of body parts. The Committee wanted to criminalise where trafficking was involved. The following could be added ‘the removal of body parts in contravention of the NHA’. This would also mean that the NPA would not have to look at several Acts including the Bill.
Mr Jeffery asked if anyone had ever been convicted or prosecuted where ‘suspected and ought reasonably to have known’ were used.
Ms Williams said that the courts had used the provision in the terrorism legislation which had the exact wording as the Bill. The courts did not use ‘suspected’ but instead opted for ‘suspected a fact’. The court in the Boeremag case used ‘ought to have known or suspected a fact’.
Mr Jeffery said that if this was the case then it should be kept as it was.
Mr Swart agreed.
Ms Steyn indicated that the Committee was yet to consider the Option in respect of Clause 19(1)(a) on page 29 of the Working Draft.
Mr Bassett said that the Department preferred the option.
Mr Jeffery said that the option was preferable.
The Committee agreed.
Mr Jeffery asked what happened if the pre-conditions specified under Section 31(1) of the Bill were met by a victim of trafficking given that the Minister of Home Affairs did not want victims of trafficking to make use of this Section (see footnote 60 of the Working Draft).
Adv Tsietsi Sebelemetja, Director: Drafting and Legal Services, Department of Home Affairs, said that the Minister had questioned the use of Section 31(2)(b) for those victims who were needed in the Republic as witnesses in prosecution cases. The Minister had problems with the use of Section 31(2)(b) and required further engagement.
Mr Jeffery said that the Department of Home Affairs (DHA) had to specify what would happen where a victim of trafficking would be harmed if returned for instance, there had to be a further mechanism to assist the Director-General (DG) of Home Affairs.
Adv Sebelemetja said that this would be communicated to the Minister of Home Affairs.
Mr Jeffery highlighted that the issue of the setting out of the Regulations was an issue. There had to be clarity and things should be set out once. There should be no repetition.
Ms Steyn pointed out that the Minister of Home Affairs had indicated that she did not want the Regulations to be approved by Parliament.
Adv Holomisa asked if the general procedure was not that Regulations had to come before Parliament before approval.
Mr Bassett said that different Bills had various specifications in this regard. It all depended on the nature of the subject matter and different Committees had different requirements as well. In terms of Section 17 of the Interpretation Act anytime sub-ordinate legislation was drafted the Minister had to submit a list of the sub-ordinate legislation that was published so that Parliament had to at least be aware.
Mr Jeffery said that Regulations were a delegation of Parliament’s law making powers to Ministers. Such delegation could be handled differently depending on the Regulations concerned. It did not make sense to require Minister’s to follow a certain procedure regarding Regulations except for one.
Adv Holomisa said that there should be provision for the Regulations to be tabled before Parliament given the importance of this legislation.
Mr Jeffery said that it should be deemed approval as it was done for the Child Justice Act. The way it was approved was adequate.
The Chairperson said that the authority to legislate was with Parliament and Regulations were part of this process. Parliament always reserved the right to grant any Minister to make Regulations and it also reserved the right to decide whether such Regulations could be tabled or approved.
Ms Steyn pointed out that there were two options that the Committee had to decide on, the one option was on page 62 and the other was on page 63 of the Working Draft.
Mr Bassett said that the Department preferred Option 2 on page 63.
The Committee settled on the option on page 63.
Mr Bassett said that the DHA had indicated that it would be too expensive to publish the Directives in the Gazette.
Mr Jeffery said that the Directives related to officials and how they would handle victims of trafficking thus there was greater public interest and they had to be published. Nobody else had raised the issue of the expense. The Regulations could be tabled before Parliament and the tabled document could be made available on the DHA’s website.
Adv Sebelemetja said that the DHA was concerned about the costs where printing one page cost about R1000.
Mr Jeffery asked if Government Printing Works (GPW) was not a subsidiary of DHA.
Adv Sebelemetja replied that it was a component on its own and it accounted to the Minister of Home Affairs for purposes of the budget vote but not in terms of day to day activities.
Mr Jeffery said that there was agreement on the tabling before Parliament and publication on the DoJ&CD’s website.
The Chairperson agreed.
Mr Bassett indicated that the Schedule was still subject to some changes given the outstanding discussions with DHA.
Response from the Committee regarding the Submissions from MWEB and the Internet Service Provider’s Association (ISPA)
Mr Jeffery said that the Bill had been around since 2010 and it had been in the public domain for some time. The Committee could not entertain the request to appear before the Committee as it had already held public hearings; this was the usual story of entities wanting to be left out of duties imposed upon them. The Sections that were being objected to were part of the introduced Bill. Mr Bassett and his team should respond to the Internet Service Provider’s Association’s (ISPA) submission.
Mr Swart was in broad agreement for Mr Bassett to look at the submissions; there was no need to have any hearings. It should be remembered that DHA has been on board for a while yet the Committee was entertaining their submissions.
Mr Jeffery asked if Mr Swart was suggesting that more time should be spent on the Bill.
Mr Swart said that this was a dilemma, there were valid concerns from DHA which the Committee had to look at, so whilst there was time the Committee should consider the submission from the Internet Service Providers (ISP’s).
Mr J Sibanyoni (ANC) said that the proposal by Mr Jeffery should be supported.
Adv Holomisa said that there should be no oral associations.
Mr Jeffery asked if MWEB and ISPA made submissions.
Mr Swart asked if the ISP’s were consulted by the Department and SALRC.
Mr Bassett said no, however the Department and Cabinet had made invitations for submissions and the Bill was published in the Gazette.
Ms Stuurman pointed out that the wording of Clause 8(2) was the same as that of the Film and Publications Act.
Ms Steyn said that there was a similar provision in the Child Justice Act where trafficked children were dealt with.
Adv Sebelemetja said that the provisions of the Film and Publications Act were drafted in consultation with the ISP’s.
Mr Jeffery suggested that the Chairperson should respond as MWEB and ISPA had written to him directly.
The Chairperson agreed.
The meeting was adjourned.
- Prevention & Combating of Trafficking in Persons Bill Working Document version 1 Dec 2011
- MWEB submission Part 2
- MWEB submission Part 1
- Internet Service Providers Association submission
- Wilmari Hannie: Head of Legal: Mweb Connect (Pty) Ltd submission
- Marc Furman: Legal Manager: Internet Solutions, A Division of Dimension Data (Pty) Ltd submission
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