NPA REPORT TO PARLIAMENTARY JUSTICE PORTFOLIO COMMITTEE 
             ON FINALISED TRAFFICKING IN PERSONS CASES
	
		               23 August 2011

1. 	Background
In line with deliberations with the parliamentary Portfolio Committee on Justice and Constitutional Development (“Justice Portfolio Committee”), the National Prosecuting Authority (NPA) submitted a report on the prosecution of trafficking in persons cases on 31 March 2011.
The status of the cases was outlined in relation to:

•	Cases under Investigation and not yet on the court roll
•	Cases on the Court Roll
•	Cases finalised from 2006
•	Breakdown of charges in respect of cases on the court roll
•	Number of traffickers and their genders
•	Number of victims per nationality, their age status (child or adult) and type of exploitation suffered 

In terms of finalised cases, five were recorded in the jurisdictions of three Directorates of Public Prosecutions with effect from 2006. In a meeting convened by the Justice Portfolio Committee from 16 to 17 August 2011, a further request was made to the NPA to provide an analysis of all the finalised cases. 

2.	Directorates of Public Prosecutions
The analysis of the finalised cases in the various jurisdictions - in alphabetical order - is provided with reference to cases which were taken to trial as well as those where the prosecution entered into plea and sentence agreements in terms of Section 105A of the Criminal Procedure Act (no. and year). The reasons for the latter will be explored, as well as the reasoning of the presiding officer in handing down the sentence where the matter was taken to trial. 

2.1 	Free State
	State vs. Eloff and another (Welkom SH 599/08)

Facts of the case
The accused, Ronell Eloff and Antoinette Godfrey, a mother and daughter team signed a lease agreement with Lone Wolf Properties on 27 February 2006, and immediately started to operate a brothel – Club Gemini - until the police closed the premises down in April 2008. 

In October 2007, the accused placed an advertisement in the Daily Sun, offering excellent job opportunities for ladies in an “upmarket club” earning R4000 per week, accommodation and transport available.  She paid bus tickets to transport the victims to her business. Upon arrival at the club, all their private belongings were taken into custody by the accused, and the complainants informed that they would have to work as prostitutes in terms of the rules and regulations set out, which they had to sign.

According to the bank statements of accused 1 during 2006 and April 2008, several separate amounts of money were deposited into her account totaling R43 655,00, with no regards as to who or how it was earned.  This occurred almost on a weekly basis, and was all relative small and different amounts, which left the prosecution with no other conclusion or explanation that it was money earned from the prostitutes in the service of the accused.  Amounts which were indicated to be deposited by an apparent legal source, were not included in this amount the accused is being charged for.

Charges formulated
Accused 1
Count 1 – Keeping of a Brothel (sec 2 Sexual Offences Act 23/57)
Count 2,8, 15, 19 - Trafficking in Persons for Sexual Purposes (sec 71(1) Criminal Law (Sexual Offences and related matters) Amendment Act 32/2007)
Count 3,6,10, 13, 17, 21 – Engaging Sexual Services (sec 11(1) Criminal Law (Sexual Offences and related matters) Amendment Act 32/2007)
Count 4, 5, 9, 12, 16, 20 - Procurement (sec 10(A) Sexual Offences Act 23/57)
Count 7,10, 11, 14, 18, 22 - Assault
Count 23 and 24 - Persons living off the earnings of prostitution (sec 20(1) (c) Sexual Offences Act 23/57)
Count 25 - Money Laundering (sec 6 Act Prevention of Organised Crime Act 121/1998)

Accused 2
Count 1 - Keeping of A Brothel (sec 2 Act 23/57)
Count 4, 5, 9, 12, 16, 20 - Procurement (sec 10(A) Act 23/57
Count 23 and 24 - Persons living off the earnings of prostitution (sec 20(1) (c) Sexual Offences Act 23/57)

Judgment 
Initially, a Plea and Sentence agreement was drafted between the parties outlining the charges above and the sentences for each. However, on the day it was submitted to court, the presiding officer stated that he was not satisfied with it, and withdrew from the case without placing his reasons on record or giving any of the parties a chance to make corrections. 

This turn of events was discussed with the Director of Public Prosecutions and a decision taken to present the Plea and Sentence agreement to another magistrate, explaining what happened. He stated that he could find nothing wrong with it, and the defence attorney rendered a guilty plea in terms of sec 112 of the Criminal Procedure Act 1977, in line with the agreement. The magistrate then imposed the sentence as set out in the agreement, without providing any reasons thereto.

The reasons for the agreement
Two of the victims refused to testify, as they were still working for the accused and two had disappeared from the shelter they had been placed in. There would have been no corroboration for the evidence of the one remaining victim. 

Sentence handed down (Accused 1)
Count 1 - Five (5) years imprisonment in terms of section 276(1)(b) Act 51/1977, which is totally suspended for five (5) years on Condition that the accused is not convicted of keeping of a Brothel committed during the period of suspension. 

Counts 2, 8, 15 and 19 taken together for purposes of sentencing - In terms of Section 276(1)(b) of Act 51/1977, the accused sentenced to sixteen (16) years imprisonment which is totally suspended for five (5) years on condition that the accused is not convicted of Human Trafficking for Sexual Purposes in terms of Act 32/2007.

Counts 3, 6, 10, 13 and 17 taken together for purposes of sentencing (Engaging sexual services) - In terms of Section 276(1)(b) of Act 51/1977, the accused sentenced to twelve (12) years imprisonment wholly suspended for 5 years on condition that the accused is not convicted of Engaging Sexual services in terms of Section 11 of Act 32/2007.

Counts 4, 5, 9, 12, 16 and 20 taken together for purposes of sentencing (Procurement) - In terms of Section 276(1)(b) of Act 51/1977, the accused is sentenced to twelve  (12) years imprisonment wholly suspended for 5 years on condition that the accused is not convicted of Engaging Sexual services in terms of Section 11 of Act 32/2007.

Counts 7, 11, 14, 18 and 22 taken together for purposes of sentencing (Assault) -
In terms of Section 276(1)(b) of Act 51/1977, the accused is sentenced to 2 and a half years (2 ½ years)  imprisonment wholly suspended for 3 years on condition that the accused is not convicted of assault.

Counts 23 and 24 taken together for purposes of sentencing (persons living off the earnings of prostitution) - In terms of Section 276(1)(b) of Act 51/1977, the accused sentenced to eight (8) years imprisonment wholly suspended for 5 years on condition that the accused is not convicted of Section 20(1)  of Act 23/1957. 

Count 25 (Money laundering: sec 6 Act 121/1998) - In terms of Section 276(1)(b) of Act 51/1977, the accused sentenced to five (5) years imprisonment wholly suspended for 5 years on condition that the accused is not convicted of Section 6 Act 121/1998. 

Furthermore, the accused sentenced in terms of Section 276 1(h) read with Section 276 A(1)(b) of Act 51/1977 to five (5) years (60 months) correctional supervision.  

The following conditions apply:
The accused is placed under house arrest at 142 Arial Street, Bedelia Welkom, for the full duration of the Correctional supervision provided that the house arrest shall not apply during the times reasonably required for the performance or attendance of the following 
School or educational commitments
Funeral or seminar
Church or spiritual meetings
Hospitalization or visits to the doctor
Compulsory attendance of the rehabilitation programs
Compulsory performance of community service

The abovementioned to be dealt with prior arrangement with the Commissioner of the Correctional Services.

The accused to herself to the following rehabilitation programs at the time and place prescribed by the Commissioner:
•	Crime prevention
•	Life skills
•	Sexual orientation or HIV/AIDS
•	Community outreaches 
•	Any other program that the social worker deems necessary for the rehabilitation of the accused

The accused will be under maximum intensive house arrest for a minimum period of thirty six (36) months.  The place where house arrest is to be performed may be altered by the Commissioner of Correctional Services in his or her discretion.

The accused is subjected to monitoring by the Commissioner of Correctional Services in order to full fill the aim of this sentence.

The accused shall report to the Correctional officer on the 9th of September 2009, at 08h00 at GEMCOR Virginia Gardens 65.  She shall report on all dates and times as ordered by the Commissioner of Correctional Services to the office at GEMCOR, Virginia, or the temporary GEMCOR office at SAPS Welkom.

The accused shall refrain from misusing intoxicating liquor or dependence producing substances other than prescribed by a medical practitioner during the full duration of this sentence.

In terms of Section 35 of Act 51/1977, it is ordered that all movable properties found, seized and still present in Club Gemini, Welkom, be forfeited to the State.  The accused must immediately after this matter has been finalized, hand over all keys to the said property and all movable property therein, to the Investigating Officer, Capt Makhasane of the Organized Crime Unit, Welkom.

2.2	Gauteng

2.2.1	North
2.2.1.1. Polokwane (Limpopo)
No finalised cases

2.2.2.2. Mpumalanga
No finalised cases

2.2.2.3. Pretoria
State vs. Aldinah dos Santos
Prosecutor: Adv. Adina Van Deventer

Facts of the case
The Mozambican Embassy noted a suspicious trend of children under the age of 18 yrs applying for visa’s to remain in SA without guardians and conducted investigations. An internet advert offering sex with these children was discovered.  Police investigators went undercover and pretended to buy sex with three juvenile girls and hired them out to a hotel where they were interviewed. 

During the interview, they revealed that they had met Ms dos Santos at Costa do Sol beach in Mozambique. She wore beautiful clothes, had an expensive handbag and was driving a Pajero. It seems that she new teenagers well: what appealed to them and how to talk to them. She befriended them and they exchanged cellphone numbers. She then asked them if they didn’t want to come to South Africa and attend proper schools.
 
She also promised that, while going to school, they could work in her hair salon and make a good living; much better than if they stayed in Mozambique. When they agreed, she arranged for someone to take them over the border into South Africa illegally. On arrival in South Africa, she forced them to be photographed provocatively and had the photos placed on a prostitution website on the internet. Thereafter, the children were forced into a life of prostitution. They were not given any food and hit with a chain if they didn’t want to have sexual intercourse. 

All their personal boundaries were violated and their illegal status in the country made them very vulnerable. They were told that if they reported to the police they would be arrested and never see home again. Being emotionally manipulated made them feel it was through their own fault that they were in the situation that they were in. They couldn’t ask for assistance from the sex clients as they were not familiar with any of the local languages or English.

The police effected arrests thereafter.

Charges formulated

Judgment handed down
Guilty
1. Trafficking in persons for sexual purposes in terms of section 71 of the Criminal Law (Sexual Offences and related matters) Amendment Act 32 of 2007
2. Living off the proceeds of prostitution		

Not guilty
	1. Rape

Sentence
The court requested the State and defence to give argument on the possibility of 3 life sentences. The State argued on the basis of recent case law to the effect that a person only has one life only and can therefore serve only one life imprisonment sentence. 

Ms dos Santos was sentenced to one life imprisonment sentence for trafficking in persons for sexual purposes in terms of section 71 of the Criminal Law (Sexual Offences and related matters) Amendment Act 32 of 2007 and 12 months imprisonment for living off the proceeds of prostitution.

	Challenges
In South Africa, there was an initial lack of interest by the police due to lack of training. Valuable evidence went astray in that period. Due to their sexual violation, the child witnesses had several behavioural problems (some of them had been forced to have sex 12 times a day). Human trafficking cases need investigators who have knowledge of immigration laws, sexual offences and organised crime. Crime Intelligence was unable to confirm information on similar traffickers and act upon it. 

Police found records which indicated that Ms dos Santos ran a brothel from in South Africa from 1992. This indicates that she could have committed this crime without detecting for 18years.Unfortunately all these books and records were destroyed during the fire at the Pretoria Magistrates Court in 2010. 

The use of appropriate interpreters' is also a problem. Interpol or United Nations may be in a position to assist if a prosecutor needs to consult with a witness or for investigation purposes. It is problematic to obtain the services of intermediaries in any of the foreign languages.

Several Places of Safety where victims could be held didn’t function up to standard. For example, social workers at a Place of Safety would not be expected to refer to victims as “prostitutes”. The Witness Protection program also doesn’t provide services for children as there are no care givers available to look after them. Special funding for their schooling and needs is also not in place. In this case, the government of Mozambique carried the financial cost of the victims’ clothing needs. 

Internationally, SAPS could only investigate the South African component as they don’t have accreditation in Mozambique. Their legal system and the way in which they investigate cases differs from the South African system. For instance, the Mozambican Police are not required to explain the rights of an accused person to him or her before taking a statement, and therefore it would be in South Africa. Photo albums and the requirements around that are also unfamiliar.

2.2.2	South
No finalised cases

2.3	Grahamstown (including Bisho, East London and Port Elizabeth)
	No finalised cases

2.4	KwaZulu Natal
State versus Sunningdale: Kwa-Zulu Natal 
Facts of the case

Charges formulated

Plea and Sentence Agreement
Keeping a Brothel 
Corruption

Prosecution’s motivation

Court’s reasoning

State versus Wiphatawaithaya: Kwa-Zulu Natal (report awaited from prosecutor)
Facts of the case
Charges formulated
Commercial sexual exploitation in terms of the Sexual Offences Act 23 of 1957

Plea and Sentence Agreement
Fine and suspended sentence

Prosecution’s motivation

Court’s reasoning 

State versus Sawatkan and 4 Others: Kwa-Zulu Natal (report awaited from prosecutor)
Facts of the case
Charges formulated
Prostitution in terms of the Sexual Offences Act 23 of 1957

Plea and Sentence Agreement
The accused were sentenced to a fine of R2 000, 00 or 6 months imprisonment, wholly suspended for 5 years, on condition that the accused are not found guilty of contravention of section 49(1)(a) of the Immigration Act (no. and year)

Prosecution’s motivation

Court’s reasoning 

2.5	North West
	No finalised cases

2.6	Northern Cape
No finalised cases

2.7	Transkei
No finalised cases

2.8	Western Cape
No finalised cases