The National Prosecuting Authority reported to the Committee that it was ready for the implementation of the Prevention and Combating of Trafficking in Persons Bill [B7B-2010]. Extensive training of prosecutors had taken place. A task team was in place. The Department of Home Affairs had implemented a three-month visa system to be used for victims of trafficking.
The Department of Justice and Constitutional Development put forward some suggestions. While internet service providers were expected to protect children from exposure to potential traffickers, it was felt that providers could not be expected to screen every site they hosted. Some of the proposed penalties were felt to be too harsh, and some areas were already covered by legislation.
There would be an obligation on public transport operators to repatriate victims of trafficking if they had known this was taking place. Provision would be made for victims to remain in the country for three months, but if they were unwilling to co-operate with South African authorities they would be repatriated provided that their lives would not be endangered.
The latter part of the meeting was closed to the public.
National Prosecuting Authority (NPA) Presentation
Adv Aaron Raletjena, Senior State Advocate, National Prosecuting Authority (NPA), outlined the tasks that would fall on the NPA once the Prevention and Combating of Human Trafficking Bill [B7B-2010] was enacted and implemented. A committee had been established to fulfil these tasks both at national and regional level. International Organisation for Migration (IOM) training materials had been used to train prosecutors. New materials would be needed for the new training required. This knowledge had to be shared with all prosecutors. A nodal point was needed in every Directorate of Public Prosecutions (DPP) for the crime of human trafficking.
The task team had already made progress. A meeting was held from 29 to 31 January 2013. Priorities had been established. The first was the collection of statistics on a universal basis. Team members had been allocated different responsibilities. A training implementation plan had been developed, comprising thirteen sessions. The first was to train the trainers. From there, each DPP would be visited to train prosecutors, firstly at High Courts and then at Regional Courts. This was where most offences would be prosecuted.
About thirteen offences had been identified requiring Annexures. The draft policy document had been studied. Skills development had been done. There were provisions in existing legislation for human trafficking. Training had already been conducted. Since 2008, over 930 prosecutors had attended 38 sessions.
(See presentation document)
Department of Home Affairs oral presentation
Mr Moses Malekate, Legal Administration Officer, Department of Home Affairs (DHA), had not been part of previous consultations. He had only been tasked to present to the Committee at short notice and had not had the chance to prepare a written presentation. The DHA had already completed the procedure for the issue of a three-month visa for victims of trafficking, and the extension of visitors’ permits. The issue of such permits would rely on the recommendations of NPA and the South African Police Service (SAPS). Such visas were already being issued where needed.
Department of Justice and Constitutional Development (DOJCD) oral presentation
The Chairperson said that questions had been posed to the Department.
Ms Engela Steyn, DOJCD Senior State Law Adviser: Legislative Development, said that the first question had been on the definition of 'position vulnerability'. There had been a suggestion that the word 'fear' should be included. The DOJCD felt that fear would always be considered as part of the definition even if the word itself did not appear. Fear was already covered in other clauses.
Ms Steyn said that in Clause 8, there was an obligation on internet service providers to report crimes related to trafficking. There was concern that the provisions on the media were too onerous. The Law Society recommended that the legislation should criminalise the use of premises for such activities and the use of the internet and other information sources to promote trafficking. This was also in line with provisions of the Children's Act (No. 38 of 2005). It must be made clear that the internet service provider (ISP) would screen its sites. The Law Commission felt that an ISP should only report sites that it felt were illegal, rather than screen every site it hosted.
Ms Steyn said that the ISP Association (ISPA) had voiced their concerns. Disproportionate expectations were being placed on them, and penalties were too harsh. There were already other mechanisms for ISPs to assist law enforcement authorities. Section 17 of the Electronic Communications Act (No. 36 of 2005) (ECA) did not expect an ISP to screen all content. In terms of the Regulation of Interception of Communications and Provision of Communication-Related information Act (No. 70 of 2002) (RICA), where the interception of communication was required, this would be in conflict with RICA. The ISP would be expected to identify persons involved if an interception order was imposed.
Ms Steyn said that the provisions of Clause 8 also impinged on freedom of expression, and there were restrictions on the ability of an ISP to defend itself in the event of legal action. The identification of suspect addresses was supported. The provision that an ISP must prevent any attempt to link to a suspect address was felt to be vague, and the penalties too harsh. Third party content was distributed. There would be interference with the work of the Independent Communication Authority of South Africa (ICASA).
Ms Steyn said that legislation placed restrictions on internet services. Chat room services should be moderated and should not be used for the commission of any offence against children. Safety messages in language clearly understood by children should be displayed. A mechanism must be provided for children to report suspicious behaviour. Information must be provided on software or other tools to block access to such services.
Ms Steyn said that ISPA had generally acceptable use rules and takedown procedures. There was an obligation to provide customers with information to protect children. The public was quick to complain about sites, and ISPA was quick to shut down such sites. They were indemnified against mistaken takedowns. However, there was no authority over offshore sites. ISPs were required to take reasonable measures to prevent crimes against children.
Ms Steyn said that in terms of the Children's Act, no person was allowed to use any building to imprison children, or to use any form of media to promote such activities. The aim of the provision was to protect children. There was legislation requiring ISPs to report sites that might facilitate trafficking. The provision in the Bill was not a new concept.
Ms Steyn listed all the relevant provisions in the ECA. These provisions included a number of obligations on ISPs to prevent the use of their facilities for the promotion of trafficking. Offences were prescribed and the manner in which communication could be intercepted.
Ms Steyn said that the intention was not to oblige ISPs to monitor sites. However, an ISP becoming aware of a site promoting child trafficking had to report this to the SAPS. A new Clause 8.4 was proposed that there was no general requirement for an ISP to monitor a site. A new Clause 8.5 would indemnify an ISP from the consequences of taking down a site.
Ms Steyn said that in the case of commercial carriers, the offence of trafficking was only defined if the carrier was aware that the person being transported was being trafficked. This applied to all forms of transport for financial gain. A person was defined as being a natural or juristic person. This would cover commercial carriers. On the obligation to convey suspicions that trafficking was taking place, this was in compliance with existing legislation. A carrier might be held liable for any expenses incurred with the care and transport of a victim. This would be applied if the Court felt that the carrier should have known that trafficking was taking place.
Ms Steyn said that in Clause 12, there was a problem where no international extradition treaties existed or the offence occurred in international waters. Slavery was regarded as an international crime. The South African Courts would have jurisdiction over South African residents, where crimes were committed on South African citizens, on South African registered ships or aircraft, or where the suspects were found in South Africa no matter where the offence was committed. The United Nations Convention made provision for countries to apply for extradition where no treaty existed.
Ms Steyn said that the sentences for trafficking should reflect the seriousness with which this crime was regarded. More provision was needed for life sentences.
Ms Steyn referred to Clause 15. This dealt with victims who were reluctant to co-operate with authorities due to fear. This would allow victims to remain in South Africa for three months. If the victim was unwilling to co-operate after this period, the Director-General of the Department of Social Development must conduct an investigation. If the victim was still unwilling to co-operate, he or she would be repatriated but assistance would be requested from the victim's home country or country from which he or she departed for South Africa. Where it was not safe for a victim to return, that person could reply for permanent residence if there was proof that he or she could be harmed. The DHA had raised concerns over this provision as persons seeking asylum in South Africa might make false claims to benefit from these provisions.
Mr M Makhubela (COPE, Limpopo) was concerned over the value of the DHA briefing, as it seemed to be off the cuff and might be lacking a factual basis. The National Commissioner would designate a person to assist with enquiries. An SAPS member should be identified by rank and name. He asked if there was confirmation that the email referred to had in fact been received. He asked how many prosecutors had been trained in each province.
Mr Malekate responded his statement could be interpreted that his remarks were off the cuff. This might have sounded disrespectful to the Committee. He was not sure who had represented DHA at previous meetings, and he had not received any written reports on such meetings. He had only been instructed to attend the meeting when DHA had been invited to attend this meeting.
Adv Raletjena said that the task team was charged to investigate on what was required of itself. Joint responsibilities with other Departments were administered by a different committee. There were thirty prosecutors working on child trafficking under previous legislation. The trainers mentored the newly trained prosecutors in the Courts. The team members were considering the documents to study the draft legislation. Annexures had already been drafted. The offences had to be identified first.
Mr Steve Sekwele, DOJCD Senior Legal Administration Officer, said that South African National Defence Force was mainly responsible for ports of entry and border control. Other authorities were also involved.
Mr D Joseph (DA, Western Cape) said that there were long queues at the border posts at this time of the year. There were irregularities at some of the border posts and trafficking could occur where control was lax.
Mr Malamute said that ports of entry did experience high traffic during holiday periods and events such as the Africa Cup of Nations (AFCON). Smaller numbers of officials were available in holiday times, but shifts were put in place to control the border crossings. He was reticent to provide information off the cuff, as he was not regularly involved with ports of entry as he worked on the legal side.
The Chairperson thanked the delegates for their attendance.
Ms Lowesa Roberts, Principal State Law Advisor, South African Law Reform Commission, asked what would be expected from DOJCD, and when the clause-by-clause deliberations would commence.
The Chairperson announced that the Advocate who would be meeting with the Committee was only available after twelve. He asked Members for suggestions on how to proceed.
Mr D Bloem (COPE, Free State) felt that the Committee had the documents and could discuss the issues at hand
The Chairperson announced that the remainder of the meeting would be closed to the public.
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