ATC180530: Final Report of the Select Committee on Petitions and Executive Undertakings on the hearing of the Embrace Dignity Petition, as adopted on 30 May 2018

NCOP Petitions and Executive Undertakings

[The following report replaces the Report of the Select Committee on Petitions and Executive Undertakings, which was published on page 182 of the Announcements, Tablings and Committee Reports dated 08 May 2018]

FINAL REPORT OF THE SELECT COMMITTEE ON PETITIONS AND EXECUTIVE UNDERTAKINGS ON THE HEARING OF THE EMBRACE DIGNITY PETITION, AS ADOPTED ON  30 MAY 2018

 

 

1. BACKGROUND

 

The Select Committee on Petitions and Executive Undertakings (Committee) having considered the Embrace Dignity Petition, received by the Office of the Chairperson of the National Council of Provinces (NCOP) on 10 December 2014 and referred to the Committee on 24 April 2015, reports as follows:

 

The Embrace Dignity Petition (petition) is submitted by Embrace Dignity, a non-profit organisation, which advocates for legal reform to end prostitution and sex trafficking. Embrace Dignity further advocates for the provision of adequate support services to women seeking exit from prostitution.

 

In the petition submitted to the NCOP, Embrace Dignity, contends that notwithstanding the enactment of progressive legislation, policies and the ratification of international agreements on gender equality and violence against women, South Africa still lags behind in the implementation of these pieces of legislation, policies and international agreements. And the dignity of women and girls is violated by the poor implementation of such legislation and policies, and the poor provision and resourcing of services in relation to the sexual violence, abuse and economic oppression experienced by South African women and girls. In the petition, Embrace Dignity, further contends that there is a general lack of understanding of the harms of prostitution and its links to sex trafficking. It further asserts that contrary to popular belief, prostitution is not always a “free choice” and affects, mainly women and girls who find themselves in dire socio-economic circumstances. Lastly, Embrace Dignity asserts that prostitution has harmful effects on women and the link between prostitution and sex trafficking cannot be undermined. And further provides that it seeks the intervention of the Parliament in establishing a multi-party committee, constituting both Houses of Parliament, to investigate the following:

 

1. The situation of women (and men) in prostitution;
2. The factors which determine the demand for prostitution;
3. The factors which provide and support the demand; and
4. The factors that perpetuate and facilitate the trafficking of women and girls.

 

The petition requests the NCOP to investigate the legal options identified by the South African Law Reform Commission (SALRC) and make recommendations for legislation that will do the following:

 

1. Reduce and ultimately eliminate oppression in the form of prostitution;
2. Address the demand for prostitution; and
3. Implement and resource programmes to support the exit and full social and economic integration of the victims of prostitution and sex trafficking back into the community.

 

1. HEARING

 

On 2 March 2016, the Committee held a hearing on the petition at Parliament. The purpose of the hearing was to afford Embrace Dignity and other implicated stakeholders the opportunity to make first hand oral submissions, to the Committee, on the petition.

 

Ensuing its consideration of the petition, the Committee tabled a preliminary report in the House on the petition, wherein it recommended that it undertake a study tour to Sweden aimed at broadening its understanding and experience of the Swedish approach (commonly referred to as the partial decriminalization approach) to the issues of prostitution and trafficking. The Committee undertook this study tour, from 2 to 6 October 2017 in Stockholm, Sweden and thereafter compiled a comprehensive 36-page report on the lessons it garnered during the study tour. Refer to the study tour report attached hereto as Annexure A. 

 

 

1. COMMITTEE MEMBERS AND OFFICIALS

 

The following Committee Members attended the hearing on the petition:

3.1       Hon S G Thobejane, ANC, Limpopo (Chairperson of the Committee);

3.2       Hon M J Mohapi, ANC, Free State;

3.3       Hon G M Manopole, ANC, Northern Cape;

3.4       Hon T Wana, ANC, Eastern Cape;

3.5       Hon D L Ximbi, ANC, Western Cape;

3.6       Hon M Chetty, DA, Kwa-Zulu Natal; and

3.7       Hon B Engelbrecht, DA, Gauteng;

 

The Committee Members present at the hearing on the petition were supported by the following Committee officials:

 

3.8       Mr N Mkhize, the Committee Secretary;

3.9       Dr M Gondwe, the Committee Content Advisor;

3.10      Adv T Sterris, the Committee Researcher;

3.11      Ms A Zindlani, the Committee Assistant, and

3.12     Mrs N Fakier, Executive Secretary.

 

1. STAKEHOLDERS

 

The hearing on the petition was attended by the following relevant stakeholders:

 

4.1       Mr. J Routledge, Ms G Grootboom and Ms S Mentor, representatives of Embrace Dignity;           

4.2       Ms T Myathaza, a representative of Masimanyane Women’s Support Centre;

4.3       Ms K Maema, Chief Executive Officer, Commission for Gender Equality;

4.4       Ms J Hicks, Commissioner, Commission for Gender Equality;            

4.5       Mr J Skosana, Deputy Chief State Law Advisor, Department of Justice and Constitutional

            Development; and

4.6      Mr M Jojo, Legal Administration Officer, South African Police Service, Western Cape

           Province.

    

1. SUBMISSIONS BY EMBRACE DIGNITY

 

5.1       Submissions by Mr J Routledge

 

In his brief submissions to the Committee, Mr J Routledge (Mr Routledge) introduced himself as the Director of Strategy for Embrace Dignity, an NGO with a mission to challenge gendered power inequalities that persist in our society and which oppress women and girls through prostitution, sexual exploitation and sexual abuse. Mr Routledge further explained that after Embrace Dignity submitted the petition to the NCOP in December 2014, it was called to appear before the Committee towards the end of 2015 however the hearing on the petition was postponed due to the industrial action that was taking place at Parliament. He also informed the Committee that the organisation submitted the petition to Parliament in the hopes that the oppression of women and girls through prostitution, sexual exploitation and sexual abuse would receive the urgent and necessary attention that it warranted.

 

Mr Routledge further elucidated that the intervention that Embrace Dignity sought from Parliament, is for Parliament to establish a Joint Committee from both houses of Parliament to investigate matters relating to the situation of women and girls in forced or coerced prostitution and sex trafficking. He pointed out that such an investigation will not only enable politicians to get a better understanding of the situation of women and girls in this regard but will also allow them to take the views of the varying stakeholders into account.  Mr Routledge also informed the Committee that such Joint Committee should ideally also include representatives from the relevant Departments, namely; the Departments of Justice, Health, Social Development and Labour.

 

In his submissions, Mr Routledge informed the Committee that the South African Law Reform Commission (SALRC) had submitted a report (SALRC Report) to the Minister of Justice and Constitutional Development (Minister) in relation to the issues of prostitution and sex trafficking but the Minister had yet to release or publicise the SALRC Report.

 

In concluding his submissions, Mr Routeledge requested the Committee to permit Ms G Grootboom (Ms Grootboom), Ms Mentor and Ms Myataza to also make submissions in support of the petition.

 

5.2       Submissions by Ms G Grootboom

 

Ms Grootboom began her submissions by informing the Committee that although she came from a normal home she ended up living in a shelter after her mother chased her away from home at the age of 9 years. She further informed the Committee that she was also sexually abused and gang raped in her early years and later trafficked by her best friend at the age of 18 years and it was during this period that she developed a drug habit which had made it difficult for her to exit the world of prostitution.

 

Ms Grootboom also submitted that once she was able exit the world of prostitution, she enrolled in a drug rehabilitation programme. However, after successfully completing the drug rehabilitation programme and exiting the world of prostitution, she had nowhere to go and nothing to do and as such, she had to find her own means of survival. She further informed the Committee that after completing the drug programme and exiting the world of prostitution, she also battled (and continues to battle) with getting acceptance from her community and getting her community to understand that she is no longer a prostitute.

 

Ms Grootboom further submitted that her current employment with Embrace Dignity allows her to speak to the issues relating to human trafficking and forced prostitution with other young people in a bid to raise awareness around the issues. Further, according to Ms Grootboom, and contrary to popular belief, the decision to become a prostitute is not a “free choice” and experience has taught her that certain factors play a definitive role in compelling women and girls to enter a life of prostitution. Drivers such as socio-economic circumstances, more often than not, lead women into prostitution as they have little or no hope of becoming economically empowered through other means. Ms Grootboom concluded her submissions by requesting the Committee to call on Government to intervene and assist victims of sex trafficking and prostitution because not every girl on the streets wants to be or remain on the streets, but is compelled by socio-economic circumstances to use her body to earn money and remain on the streets.

 

 

 

5.3       Submissions by Ms S Mentor

 

In her brief submissions to the Committee, Ms S Mentor (Ms Mentor), a representative of Embrace Dignity, impressed upon the need for Government to address the integration of survivors of prostitution and sex trafficking back into society and to actively assist those who are forced into prostitution and trafficked by offering them holistic support services. She further informed the Committee that there is also an urgent need for systems to be in place for those who wish to exit prostitution.

 

5.4       Submissions by Ms T Myataza

 

Ms T Myataza (Ms Myataza), introduced herself as a counsellor and a representative of Masimanyane Women’s Support Centre (Masimanyane), a non-profit international women’s organisations based in East London, with a specific focus on gender-based violence and on the provision of services to survivors of coerced prostitution and trafficking. She further informed the Committee that in the course of her work with the organisation, she repeatedly encounters women who have been sexually trafficked to the Eastern Cape from other provinces or countries and women who have been sexually trafficked from the Eastern Cape to other provinces or countries.

 

Ms Myataza also emphasised that prostitution violated the constitutional rights of the women and girls involved in it. In this regard, she informed the Committee that prostitution has a negative impact on women because it is not only harmful to their bodies but is also harmful to their minds and overall wellbeing. Ms Myataza further informed the Committee that prostitution also has a negative impact on the health of the women because, at times, it exposes the women engaged in it to great levels of physical and sexual violence. Further according to Ms Myataza, prostitution also violates the rights to liberty and security of the women and girls involved in it because many of them have either been trafficked or forced into a life of prostitution in order to meet the demand for sex.

 

Ms Myataza further explained that prostitution impacts negatively not just on the women and girls engaged in it, but also on all women as a group because it persistently affirms and reinforces patriarchal definitions of women as having the primary function of serving men sexually. And it is for this reason that Masimanyane views prostitution as one of the cornerstones of patriarchal control and the sexual subjugation of women.

 

In concluding her submissions, Ms Myataza, informed the Committee that even though Masimanyane recognises the fact that prostitution is a highly contested issue, the present law is doing very little to alleviate the challenges experienced by women and girls engaged in prostitution. And Masimanyane, takes the view that just as the world could imagine a world without slavery and a world without apartheid and made the existence of such a world a reality, it has a duty to not only imagine but also work towards a world without prostitution.

 

6.         SUBMISSIONS BY THE COMMISSION FOR GENDER EQUALITY

 

6.1       Submissions by Ms K Maema

 

Ms K Meama (Ms Maema), the Chief Executive Office of the Commission for Gender and Equality (CGE) began the submissions on behalf of the CGE by explaining that one of the mandates of the CGE is to receive and investigate complaints relating to gender discrimination. She further informed the Committee that the CGE has received numerous complaints from sex workers in relation to the manner in which they are treated by members of the South African Police Service (SAPS), health workers and social workers and as a result the CGE has resolved to investigate these complaints. Ms Maema indicated that the CGE will ensure that it presents its findings, advice and recommendations in this regard to Parliament. Ms Maema then informed the Committee that she would allow Ms J Hicks (Ms Hick), a commissioner with the CGE, to make extensive oral submissions on behalf of the CGE in relation to the petition.

 

6.2       Submissions by Ms J Hicks

 

In her submissions to the Committee, Ms J Hicks (Ms Hicks) attempted to clarify the concepts of forced prostitution, sex work and sex trafficking. Forced prostitution, according to Ms Hicks, occurs where a person is coerced into becoming a prostitute and is given little or no choice in the matter. And it therefore makes sense that such a person should be considered victim of prostitution or sex trafficking. She further submitted that trafficking a person for sex or any other purpose is a criminal act and legislation (namely the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (Trafficking in Persons Act), criminalising the trafficking of persons has come into force and effect in our country. She further explained that the concept of sex work is a non- stigmatising term coined by sex workers to redefine commercial and consensual sexual acts between adults. She further submitted that the concept suggests an element of agency and the right to self-determination and as such it should not be confused with trafficking and forced prostitution. 

 

Also in her submissions, Ms Hicks raised concerns around the adequacy of Government’s response to the issues of prostitution and sex trafficking. In this regard, she submitted that despite the enactment of legislation such as the Sexual Offences and Related Matters (Amendment Act) Act 32 of 2007 and Trafficking in Persons Act, there is insufficient information or evidence on the extent to which forced prostitution and sex trafficking takes place as well as on the effectiveness of SAPS and other Government Departments in implementing the relevant legislation. She also submitted that the CGE is also concerned with the high levels of human rights abuses reported by sex workers against, amongst others, polices officials, health workers and social workers. She further reiterated that the CGE is currently investigating numerous complaints in this regard. 

 

Ms Hicks also submitted that the CGE is in support of the following aspects of the petition submitted by Embrace Dignity:

 

1. The call for a Joint Committee to be established for purposes of investigating the issues of prostitution and sex trafficking;

 

1. The call for the SALRC Report on prostitution and sex trafficking to be released and published; and

 

1. The call for urgent law reform in relation to prostitution. She further added that CGE is of the view that consensual, adult sex work should be decriminalised as this is the only viable legal option to promote and protect the human rights of sex workers.

 

She also submitted that the investigation by the Joint Committee should also focus on the following: the evidence and information on the extent of forced prostitution in the country; the factors that enable forced prostitution (such as social and economic factors); the extent to which SAPS and other Government departments have been implementing the relevant legislation; the support measures in place for persons who wish to exit forced prostitution; the allegations of human rights abuse levelled by sex workers against, amongst others, the police, health care workers and social workers; and listening to the voice of sex workers. 

 

Ms Hicks further submitted that unlike Embrace Dignity, the CGE is of the view that because the SALRC Report includes an investigation into the available legal options, the request by Embrace Dignity for such an investigation will constitute a duplication of the work already done by the SALRC. In concluding her submissions, Ms Hicks requested the intervention of the Committee in ensuring the Minister of Justice and Constitutional Development expedited the release of the SALRC Report.

 

She further informed the Committee that the CGE supported the global call for the decriminalisation of sex work and emphasised that this call had also been made by international organisations such as UNAIDS, the World Health Organisation, the United Nations Committee on the Convention on the Elimination of All Forms of Discrimination Against Women, the United Nations Rapporteur on Health and Amnesty International. Ms Hicks further noted that the CGE supported the call for decriminalisation of sex work as it took the position that decriminalisation would lift stigma associated with sex work and allow for access to rights by persons involved in sex work.

 

1. SUBMISSIONS BY THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

In his submissions to the Committee, Mr J Skosana (Mr Skosana), a Deputy State Law Adviser in the Department of Justice and Constitutional Development (Department), submitted that the Minister had tabled the SALRC Report before the Justice, Crime Prevention Security Cluster Cabinet Committee (JCPS Committee) towards the end of 2015. He further informed the Committee that the tabling of the SALRC Report in this regard allows Cabinet to consider it through the relevant Government clusters.

Mr Skosana further informed the Committee that whereas the role of the SALRC is to examine the issues of law reform, the role of Cabinet, on the other hand, is to identify legislation, policy and programmes for implementation and it is for this reason, that the Minister has tabled the SALRC Report with the JCPS Committee. He also submitted that because the SALRC Report raises some contentious issues, implicates various sectors of society, raises legal and non-legal issues, and contains different views and paradigms, the Minister is obligated to ensure that all the affected Government clusters are consulted before the SALRC Report is released. As such the JCPS Committee will also need to submit the SALRC Report to other Government clusters to enable them to determine if it has any implications for them.

Also in his submissions, Mr Skosana, submitted that Government also needs to ensure that appropriate support mechanisms are in place prior to the release of the SALRC Report. He further stated that given the SALRC Report has implications on the fiscus of the country, Government would need to be given time to look into what other mechanisms it can canvas in responding to and finding solutions to the issues raised in the SALRC Report. In concluding his submissions to the Committee, Mr Skosana clarified that it had been less than 2 years since the Minister had received the SALRC Report. He also observed that Cabinet sits on a bi-monthly basis and this means by April 2016, the JCPS Committee should be in a position to brief the Committee on the progress made in relation to the release of the SALRC Report.

Mr Skosana concluded his submissions by informing the Committee that should it accede to the request by Embrace Dignity and the CGE for Parliament to set up a Joint Committee for purposes of investigating the issues raised in the petition, this will invariably be a duplication of the work already done by SALRC and a waste of state resources. He however also added that Parliament would be well within its mandate to establish a Joint Committee and the Department of Justice and Constitutional Development is prepared to cooperate with whatever recommendations the Committee comes up with following the hearing on the petition.

1. SUBMISSIONS BY THE SOUTH AFRICAN POLICE SERVICES

Mr M JoJo made submissions on behalf of the South African Police Services (SAPS), Western Cape Province. In his brief submissions to the Committee, Mr Jojo introduced himself as a legal administrator at SAPS. He further indicated he was attending the hearing on the orders of the Office of the Provincial Commissioner, Western Cape Province. Mr Jojo also informed the Committee that he was aware of the issues raised in the petition because SAPS is working with SWEAT in an effort to address some of the issues.

He also clarified that the issues raised in the petition and the various submissions made during the hearing, fell outside the competence of the Provincial Commissioner and fell within the competence of the National Commissioner. He further informed the Committee that, notwithstanding this, he will compile a report on the submissions made during the hearing so as to enable the Provincial Commissioner to table the report with the National Commissioner.

 

1. OBSERVATIONS AND KEY FINDINGS

 

The Committee made the following observations and findings in relation to the various submissions on the petition:

 

9.1       The CGE is currently investigating the allegations of human rights abuses that have been levelled against SAPS, health care workers and social workers by sex workers.

 

9.2       There is presently a need for legal reform around the issues raised in the petition as the existing legislative framework, which includes legislation such as the Sexual Offences Act and the Trafficking in Persons Act, is inadequate for addressing the issues raised in the petition.

 

9.3       The CGE has developed and tabled its position on the issues raised in the petition before the Portfolio Committee on Women in the Presidency.

 

9.4       The Joint Committee that the petition proposes Parliament establish will also involve multi-stakeholders and will be broad in its mandate. The Joint Committee will look into, inter alia, the factors enabling forced prostitution (such as social and economic factors); the extent to which SAPS and other Government departments have been implementing the relevant legislation; and the support measures in place for persons who wish to exit forced prostitution.

 

1. RECOMMENDATIONS

 

It is against the various submissions made during the hearing on the petition and the study tour the Committee undertook to Sweden, that the Committee recommends the National Department of Justice and Constitutional Development (Department):

1. Study the Committee report on the study tour it undertook to Sweden (attached hereto as Annexure A). The Committee takes the firm view that there are invaluable lessons to be learnt from the Swedish approach to the issues of prostitution and trafficking.
2. Initiate and drive a consultative and investigative process aimed at reviewing the current policy position on the issues of prostitution and trafficking and proposing an approach or response that is specific or peculiar to the country’s prevailing circumstances.
3. Appear before the Committee and report on the outcomes of the process referred to in 10.2. above as well as propose a way forward in relation to the best legislative response or approach to the issues of trafficking and prostitution for the country.

 

The Select Committee on Petitions and Executive Undertakings recommends as follows:

 

That the House adopt the Embrace Dignity Petition report, as tabled by the Committee, together with Annexure A of the report (i.e. the report on the Committee’s study tour to Stockhom, Sweden).

 

Report to be considered