Prevention and Combating of Persons in Trafficking Bill [B7-2010]: finalisation & adoption

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Justice and Correctional Services

04 June 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development concluded deliberations on the Prevention and Combating of Persons in Trafficking Bill (TIP). The Committee was taken through various consequential amendments that had been inserted since the last deliberations. The following new definitions had been inserted in the Bill: ‘electronic communications’; ‘electronic communications identity number’ and ‘electronic communications service provider’  The Committee raised concerns regarding clause 13 where the first tow sub-clause specified fines and prison sentences whereas the rest of the provisions only had specified prison sentences. The Committee deleted clause Clause15(5)(a) as it was inconsistent with some of the other provisions under clause 15 as a whole. Under clause 16(1)(c) the words ‘despite the provisions of the Immigration Ac’ were added. The Committee took the decision that the criminal provisions in the Bill would apply as soon as possible. The Committee explained that this would not affect victims who were needed but the police or National Prosecuting Authority as South Africa has signed the Palermo Protocol so it could not deport victims needed as witnesses. There was some confusion as to how the Bill ought to be labelled technically, the state law advisers were of the opinion  that it should be a Bill as presented with an A list whilst the Committee wanted the Bill to be as presented. The matter was clarified by the Committee to be that the B version was put before the House and was normally referred to as the clean version. The TIP was a clean Bill that gets put before the House. In terms of the Rules the Committee had to approve the amendments which were effectively what the Committee had in front of it; the TIP Bill as introduced and cleaned. The A version was actually not a requirement; it was seen as best practice by the Committee Section. The Committee approved the Introduced and Cleaned version it had been going through at the meeting front of it now.

Meeting report

Opening Remarks
The Chairperson requested that the drafting team take the Committee through the Prevention and Combating of Persons in Trafficking Bill page by page and highlight where changes had been made. Members were encouraged to raise their concerns as well as amendments during the briefing. The intention was that the Bill would be finalised today.

Prevention and Combating of Persons in Trafficking Bill [B7-2010]: new working draft
Front Cover
Ms Engela Steyn, State Law Adviser from the Department of Justice and Constitutional Development (DoJ&CD), said that the front page had been changed by the inclusion of the words As amended by the Portfolio Committee on Justice and Constitutional Development; National Assembly in brackets. The number of copies printed had also been deleted.

Page 2
Ms Steyn said that the state law advisor had suggested that in the Long Title the words ‘to provide for penalties that may be imposed in respect of the offences’. This was to indicate that there were penalties in the Bill.

Mr J Jeffery (ANC) said that in light of recent events in the last few weeks the Committee could not be too careful and agreed with the proposal. In addition, he asked why there were two ‘ands’ at the bottom of the Long Title?

Ms Soraya Williams, State Law Adviser from the Office of the Chief State Law Adviser (OCSLA), explained that usually the first ‘and’ was to provide for whatever a piece of legislation was regulating and the second was for other matters.

The Chairperson and Mr Jeffery agreed that it was a minor issue but it seemed odd.

Ms Williams said that state law advisers had its own preferred style of drafting however there was now a move to have uniformity. This was what was now preferred.

The Chairperson said that one ‘and’ should be taken out.

Ms Steyn suggested that in the Preamble in paragraph two the word ‘in’ should be removed and ‘of’ should remain instead.

Mr Jeffery said that this should be the same as it was in the Bill where ‘in’ was used; this was also in the Palermo Protocol.

Ms D Schäfer (DA) said that the proper English usage would be ‘the trafficking of persons’ and ‘in’ would be used if there was no ‘the’ before trafficking, for example ‘trafficking in persons’.

The Committee agreed that it would be ‘of’.

Page 5
Ms Steyn referred to the title in clause 45 and pointed out that the word “officials” should be replaced with “official”.

The Committee agreed.

Ms Steyn referred to the heading in clause 47 and said that the term “provincial heads” should be singular.

The Committee agreed.

Page 7
Ms Steyn said that the definitions of ‘electronic communications’; ‘electronic communications identity number’ and ‘electronic communications service provider’ had bee inserted.

Ms Steyn pointed out that Item (f) under the definition of exploitation the ‘and’ had been replaced with ‘or’.

The Committee agreed.

Page 8
Ms Steyn said that a definition of ‘police official’ as per the South African Police Service Act was inserted however that Act only made mention of a police member.

Mr Jeffery noted that this was his suggestion; however he was worried that there would be confusion with metro police officials for example.

The Chairperson said that this was okay.

Ms Steyn said that the word ‘the’ has been deleted under the definition of protective custody.

The Committee did not object.

Page 9
Ms Steyn said that the definition of sexual exploitation had been amended and the words ‘against a victim of trafficking’ had been deleted. This did not impact negatively on the other clauses of the Bill. In addition, the word ‘the’ had been deleted under the definition of temporary safe care.

There were no objections from the Committee.

Page 11
Ms Steyn referred to subclause 3(f) and asked if the hyphen should be included in the word ‘co-ordinated’ throughout the Bill as well.

The Chairperson said that the hyphen should remain. 

Page 15
Ms Steyn referred to clause 6 and suggested that the word intentionally should be inserted before the words ‘has in his or her possession’. She then queried whether it was necessary to use the word ‘intentionally’ twice in that provision.

Ms C Philane-Majake (ANC) said that it sounded better without the second ‘intentionally’. 

Mr Jeffery said that he preferred the wording as it was which had the words ‘or intentionally destroys’ inserted.

The rest of the Committee agreed.

Ms Steyn moved on to say that clause 8 was amended as per the Committees discussion last week.

Page 16
Ms Schäfer said that Ms Smuts (not at the meeting) was concerned about the new clause 8(2)(b)(iii) because it did not make any reference to a requirement for an address or identity number.

Mr Jeffery said that the reference was to an internet address because previously it was only the internet that was covered. However now the provision was broadened to include Wi-FI, Bluetooth etc and the definition was also wide enough to cover everything.

Page 17
Ms Steyn said that as agreed last week the provision in sub-clause 8(5) has been inserted. Clause 9(2) should have the word ‘its’.

The Committee agreed.

Page 18
Ms Steyn said that clause 11(4)(b) was amended to refer to a South African authority.

Page 19
Ms Steyn referred to clause 12 and asked if the Committee preferred ‘accused’ or ‘accused persons’.

Ms Williams pointed out that the Constitution referred to ‘accused person’.

The Chairperson replied that the term ‘accused person’ should be used.

Page 20
Mr Jeffery raised a concern relating to clause 13, clause 13(a) and (b). These provisions specified amounts whereas the rest of the clause did not specify amounts, this was odd. The National Prosecuting Authority (NPA) had pushed for this clause and it seemed like a bit of an anomaly. 

Ms Williams said that she was looking at the Minimum Sentences Act and would get back to the Committee.

Mr Swart said he recalled that the NPA had deliberately crafted the clause as it was, there were reasons that they had for this.

Ms Lowesa Stuurman, Researcher from the South African Law Reform Commission (SALRC), recalled that the provision may have come from the Prevention of Organised Crime Act (POCA).

Ms Schäfer said that as far as she could recall the amounts were specified in accordance with the Committee’s view on the seriousness of the crimes under clause 13(a) and (b) however this was an anomaly.

The Chairperson agreed.

Ms Williams read the provisions of POCA that were similar to the clause 13.

Page 21
Mr Jeffery said that he was concerned with sub-clauses 15(5)(a) and 15(2) as they were inconsistent. Subclause 15(2) referred to the unwillingness of a foreign victim of trafficking whilst 15(5)(a) provided that the willingness of a foreign victim was not required. Consequently, he recommended sub-clause 15(5)(a) should come out.

The rest of the Committee did not object.

Page 22
Ms Steyn referred to clause 16(1)(c) and said that there may be a need to add ‘despite the provisions of the Immigration Act’.

Ms Stuurman explained that the proposal was because the Immigration Act only allowed for the extension of a visitor’s VISA to be done once only, the wording would also render clause 16(1)(c) to be consistent with clause 16(1)(a).

Page 23
Ms Steyn referred to clause 18(1)b) and suggested that ‘suspected of being a victim of trafficking’ should be used in the rest of the Bill as well.

The Committee agreed.

Page 25
Ms Steyn said that provision for foreign children to remain in the Republic had been made.

Page 26
Mr Jeffery referred to clause 19(4)(c) and said that the clause had been altered with the insertion of ‘may’, this was a concern, who did the application?

The Chairperson said that it had to be the victim and not the police.

Mr Jeffery said that ‘right’ was taken away but now this seemed like an option for illegal immigrants to remain in the country.  This may be open to abuse; at least the ‘right’ was gone. This may be considered further in the National Council of Provinces (NCOP) as it was late now anyway.

Page 29
Ms Steyn said that ‘foreigner’ was added to the heading of clause 21. The words ‘the same’ were removed under clause 21.

The Committee agreed.

Page 43
Ms Steyn said that clause 36(2) included the words ‘of this Act’ as there was already a reference to another Act which was the Children’s Act.

The Chairperson agreed..

Page 50
Ms Steyn said that under clause 40 (1)(a) the word ‘in’ was replaced with ‘of’.


Page 54
Ms Steyn said that in the Regulations the words ‘suspected of being a victim of trafficking’ have been effected as per the Committee’s request.

Mr Swart referred to clause 41(1)(a) and asked if it was correct that the Minister made Regulations for the NPA.

Mr Jeffery said that the clause was only relevant insofar as the manner of referrals was concerned; this had nothing to do with the NPA’s prosecutorial functions.

Page 61
Ms Steyn said that the drafters suggested that the reference should be only to the singular for ‘officials’.

The Chairperson agreed with this.

Page 63
Ms Steyn referred to clause 47 and said that the suggestion was for there to be a reference to ‘provincial head’ and not ‘heads’.

The Chairperson agreed with this.

Page 64
Ms Steyn said that the short title and commencement was yet to be finalised.

Mr Jeffery said that the current wording provided for the provisions to come into effect all on one day, there was no reason why the criminal provisions could not commence with immediate effect. The Regulations relating to accredited organisations as well as other sections may take longer.

Ms Schäfer said that the other provisions may impact on the prosecutions for example where would prosecutors send a victim of trafficking that they needed as a witness?

Mr Jeffery said that it was particularly Chapter 2, some of the crimes fell through the cracks. The opportunity for effective prosecutions should be allowed, there had to be a change in the criminal system. The sections would not be specified, the Committee would be giving power to the president to determine different dates.

Ms Schäfer said that she shared the same concerns as Mr Jeffery however the concern raised before about the plight of victims for prosecutorial purposes was a valid one.

Mr Jeffery said that this was an empowering provision. South Africa had signed the Palermo Protocol so it could not deport victims needed as witnesses.

The Chairperson said that the drafters should look at previous Acts that had provisions coming into effect on different dates.

Ms Stuurman read from POCA which provided that: “Different dates may be fixed in respect of different provisions in this Act”.

The Committee said that this was they wanted a similar provision in the Bill.

Schedule
Mr Jeffery said that the amendments in the Schedule were difficult to follow. The other concern was that if the Prescription Act was amended because the Sexual Offences Act dealt with some trafficking issues and not the others. The Sexual Offences Act dealt with trafficking offences that were sexual in nature whereas the offences in the Bill were not all sexual offences. The word ‘sexual’ should be removed.

Ms Schäfer said that the crimes that were in force under the Sexual Offences Act were sexual offences whereas the ones provided for now were not. Surely this was covered in the second section that was included in the Schedule.

Mr Jeffery said he followed and understood what the drafters had done.

Ms Steyn referred to the amendment to the Criminal Procedure Act and highlighted that there were a few things that had to be considered further. On page 68 in paragraphs (m) and (n) and (p) there was no provision for an attempt to commit the offence listed in the Schedule. There were no other amendments.

The Chairperson said that the Committee Secretary had asked if the cover of the Bill should not read as presented by the Committee because currently it read as amended.

Mr Jeffery said no, when it read as presented then this would be when the Bill was re-written by the Committee; in this instance it was amended.

The Chairperson asked how long the drafters needed to sort out the Schedule.

The drafters said they needed about 45 minutes.

Ms Williams wanted to confirm that the Bill would be presented as a re-written one.

Mr Jeffery said no, this was the issue raised by the Committee Secretary; this was going to be as an amended Bill. This was not a re-drafted Bill or as presented, it was as an amended Bill. The approval of the Bill today would be done with the amendments made today.

Tea Break

Mr Jeffery said that he had just had a discussion with the Secretary of the National Assembly and Ms Zanele Mene who was the Head of the Committee Section. The B version was put before the House and was normally referred to as the clean version. Effectively it would be the TIP as a clean Bill that gets put before the House. In terms of the Rules the Committee had to approve the amendments which were effectively what the Committee had in front of it the TIP Bill as introduced and cleaned. The A version was actually not a requirement, it was seen as best practice by the Committee Section as result of the problems of the Children’s Bill. There would be no need to suspend any Rules by not having the A version and the Committee would not have it. The Committee would approve the Introduced and Cleaned version in front of it now. The effects of this would be in the clean Bill that would appear before the House which would then be the B-version.

Ms Steyn referred to the Schedule on page 66 and said that the drafters had inserted Section 261A under the amendment to the Criminal Procedure Act. The words ‘or any involvement in the offence’ as provided for in the Prevention and Combating of Trafficking in Persons Act. The words ‘or any attempt to commit that offence’ have been used next to paragraphs (c), (g), (e), (f) and (g) which were the offences in the Sexual Offences Act. In paragraphs (h), (i), (j) and (k) there was an attempt for the involvement of the offence. In paragraphs (m), (n), (o) and (p) the suggestion was that the provisions should remain as they were.

The Chairperson put the Bill to the Committee.

The Committee unanimously approved the Bill.

The meeting was adjourned.

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