Prevention & Combating of Trafficking in Persons Bill; Committee Report: Criminal Law (Sexual Offences & Related Matters) Amendment Act Amendment Bill

Meeting report

Draft Report for the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
Mr S Swart (ACDP) referred to paragraph 3 and stated that the ‘Procedure’ should be Law. In paragraph 5 it should also be Law. There should also be an ‘is’ inserted in line three.  The report was innocuous in that it did not state whether the Committee agreed with the Prins judgment. The Speaker referred to this yesterday in his speech and it was almost a reflection on Parliament not doing its work, there were different views on this and the Supreme Court of Appeal (SCA) still had to rule on the matter.

Ms D Schäfer (DA) suggested that clause 56A(2) should be left in the report as it was part of the Committee’s original Bill.  

Mr J Jeffery (ANC) agreed with Ms Schäfer’s suggestion.  The report should include that the Committee was of the view that in the longer term specific sentences should be linked to specific crimes in a Schedule as this was preferable, in addition the Minister of Justice should report on this.

Ms Schäfer said that she was concerned that if the Committee included what Mr Jeffery was suggesting then it would seem like what had been done was insufficient. If it could be said that the Committee preferred to do this in future then the wording should be carefully crafted.

Mr Jeffery said that the Bill was legal; it would have just been preferable for judicial officers to have a guide as to how serious the newly created statutory offences were. The problem that even the Committee was grappling with was the weighing up of different categories. The Committee could state that this was something it would like to do in future in order to assist judicial officers; the Minister should make proposals and report within a year. The Rules of Parliament would provide for the tagging of the Bill however it was clearly a Section 75 Bill.

Mr Swart said that the Bill had to be expedited in the National Council of Provinces (NCOP).

Mr Swart moved for the adoption.

Professor G Ndabandaba (ANC) seconded.

The Draft Report was adopted unanimously.

Prevention and Combating of Trafficking in Persons Bill [B7 – 2010]
Clause 8
Ms Irma Steyn, State Law Adviser for the Department of Justice and Constitutional Development (DoJ&CD) said that there were suggested amendments under clause 8 to accommodate the submissions from MWEB and the Internet Service Providers Association (ISPA).

Mr Sarel Robbertse, State Law Adviser from the DoJ&CD said that reference should rather be made to Electronic Communication Service Provider (ECSP) as opposed to Internet Service Providers (ISP). All ECSP’s should be brought under the ambit of the Bill. There were other modes of communication besides the internet such as cellular phones and cloud technologies.  

Ms M Smuts (DA) said that this was correct insofar as the fact that all licenses fell under the Electronic Communications Act (ECA). What was worrying was that the proposal was too wide. Was the salient point in the Bill not access to the internet and websites etc?

Mr Robbertse said that the definition was similar to the one in the Registration and Interception of Communications Act (RICA), the definition therein was drafted in a technological manner. The definition in RICA provided for fixed line, internet and mobile cellular technologies. There were proposals for internet service providers to be removed in the definition as it made it so wide that it was applicable to Parliament and every state agency. Communication was the same regardless of the medium used; the result was that the recipient received the message as intended. Whether bulk messaging or telephonic communication was used for trafficking purposes, the results would still be the same. Why should the communication be restricted to the internet and not other electronic modes of communication? Technology was also advancing so quickly that there were new modes of communication almost every day.

The Chairperson asked what a cloud based application was.

Nr Robbertse said that essentially it was Wi-Fi.

Mr Jeffery said that the internet could be used as a vehicle to facilitate for trafficking; this clause was intended to ensure that it was not used as such. A web page was generally accessible; the concern with making it wider was that the responsibilities for somebody providing a hotspot would be far less than those of an ISP.  The proposal seemed to be too wide and not focused. The definition in the ECA was weird it essentially said one was licensed or did not have be to be licensed. A narrow approach was preferable so that ISPs were adequately covered and later the provision could be widened.

Ms Smuts agreed with Mr Jeffery, the reason why there were different classifications of communication was because there had to be a freeing up of the market to promote competition.

Mr Robbertse said that the definition in the ECA provided for certain instances where a license was issued and also provided for exemptions. In the ECA there were further provisions for a service provider who was not licensed or exempted from not being licensed. There was no difference between internet and any other service.  

Ms Schäfer said that she did not understand why the problem was with somebody who was exempted from getting a license. If perpetrators were broadcasting material that facilitated for trafficking they should be stopped regardless of whether they were licensed or not. Confining the definition to ISPs only was worrying. If the definition was already in the ECA then surely it was going to affect the Bill anyway.

Ms C Philane-Majake (ANC) said that there would have to be a provision that also covered the situation where foreign companies accessed South African (SA) citizens.

The Chairperson asked how this could be done.

Ms Philane-Majake conceded that this would be a challenge however it still had to be taken into consideration.

Mr Jeffery said that clause 8(1)(c) related to all entities who used the internet or any other information technology for the purposes listed therein. Presumably information technology applied to Bluetooth, WI-Fi and texting etc.  Clausen 8(2) related to steps being taken to prevent the service being used hosting or distributing the information. The Committee had provided that reasonable steps had to be taken by an ISP where their services were used for trafficking purposes, now this was left to the Independent Communications Authority of South Africa (ICASA) which may not be the appropriate body. It was better to focus on what was known insofar as the prevention was concerned rather than to widen the provision. The distribution of prohibited material was already covered by clause 8(1)(c).

Ms Smuts said that the crux of the provision was to what degree would the lawmaker expect private entities to co-police and then simple answer was that this cannot be done. Things were changing however the standing law should remain; it was not any of the Committee’s business to go around revoking licenses.

Mr Swart said that there were other provisions that referred to the revocation of licenses and the Committee may have to consider them as time went on.

Mr Robbertse said that he would proceed under the basis that only ISPs would be targeted. Clause 8(2) made provision for ICASA to undertake certain steps. ICASA was generally in control of issuing licenses according to the ECA. The Committee could make provisions in terms of the ECA where the issuing of licenses for certain persons was concerned, this also included ministerial consent. 

Mr Jeffery asked if ICASA would be able to fulfil the requirements and prescribe exactly what ISPs had to do. The ISPs had complained that the provision was too onerous however the wording included ‘reasonable steps’. Which minister’s consent would be required?

Ms Smuts said that ICASA was constitutionally independent and the ministerial route was not advisable. ICASA was a rule making body and it drafted Regulations, the battle was keeping communication ministers out of its terrain. One did not want a situation where ministers were seized with this task without necessarily having the whole picture in mind. ICASA would be able to do what was required under this clause.

Mr Swart said that ICASA was accountable to Parliament and the Committee could insert in the resolution that the Committee would want a report back from ICASA within six months that the necessary steps were being implemented.

Mr Jeffery said that the clause was not for issuing licenses but for steps that had to be taken and if they were not then a crime would have been committed. What steps had to be taken where child pornography was concerned and which body policed this?

Mr Sarel Robbertse said that the policing for child pornography was the Films and Publications Act which placed a general obligation on ISPs. If ISPs became aware that child pornography was being distributed then they had to take certain steps.

Mr Jeffery said that clause 8(2)(a) required that certain steps to prevent the distribution should be taken, surely there was a similar provision relating to child pornography, what was that provision?

Mr Robbertse said that the provision was Section 27(a)(2) of the Films and Publications Act. The obligation on ISPs was to observe and report illegal activities on the websites.

Mr Jeffery said it seemed that there was no duty on ISPs to police.

Mr Robbertse said that for ISP’s to police they would have to have access to the content sent and received over the internet and they could not do this. If the ISPs began viewing the content then they would be intercepting the information and this would be contravention of RICA. Only the IP addresses of the information sent and received would be saved on the ISPs server.

Mr Jeffery asked for an example of a reasonable step that would have to be taken by a ISP for the use of its services for the hosting or distribution of trafficking material.

Mr Robbertse said that certain websites may be pre-identified as usually distributing information relating to the distribution of trafficking material, ICASA could place an obligation upon ISPs to block the information. ICASA could place an obligation on ISP’s to include in their contract of agreements with consumers to not process or host information that related to trafficking.

Mr Jeffery said that the example given by Mr Robbertse was already covered under clause 8(2)(b)(3).

Ms Smuts said that one could not ask ISPs to do policing work and what about ordinary consumers, would they also have to sign a contract with the clause suggested by Mr Robbertse? 

Mr Robbertse said that the obligatory requirement could be discretionary.

Mr Swart said that in the Films and Publications Act there was no policing required and the requirement to take a step only applied when the information became known to the ISP. The Committee was now taking this further, why was the Committee taking this route if it was so difficult to enforce? The Committee could add the words “where necessary” certain steps would have to be taken.

Ms Stuurman recapped on what the drafters had to do, ISPs would remain as the reference in the Bill, the original wording in clause 8(2)(a) would remain and clause 8(4) would be deleted. 

Ms Smuts said that the principles as they were in the ECA were that ISPs were mere conduits. The Committee should not try to do anything adventurous here; the experts would make the necessary changes as a lot of bad things were happening over the internet.

Mr Jeffery asked what was the regime for ISPs to prevent and deal with child pornography and should the Committee then not follow the same route as trafficking and child pornography were similar.

Ms Smuts said that she deeply distrusted the Films and Publications Act it did a lot of awful and unconstitutional things.

Ms Soraya Williams, State Law Adviser from the DoJ&CD said that the original provision in the introduced Bill was taken from the Films and Publications Act.

Mr Robbertse said that in his mind if a site has been identified then an ISP was under an obligation to provide records of anybody who has accessed the site.

Mr Swart suggested that the Committee should go back to its original wording which had ‘must take all reasonable steps’.

Ms Smuts said that clause 8(4) would be removed and the new 8(5) would be inserted. The Committee would also revert to using ‘reasonable steps’ and there should be an obligation to report and block prohibited sites.

Mr Jeffery said that on reflection he did not seem to have a problem with widening clause 8 by using the term ECSP because if for example a Bluetooth service provider became aware that their services were being used for communicating trafficking related information they should have a duty to report it. There was a duty under clause 8(2)(b) which if restricted to internet service providers made it possible for other people to escape. Clause 8(2(a) could still refer to ISPs but clause 8(2)(b) should include ECSPs.

Mr Swart asked why the clauses could not both have reference to ECSPs for the sake of consistency.

The Committee agreed.

Mr Robberste said that if ECSP was to be used then the following proposed definitions should be inserted: Electronic Communication Identity Number; Electronic Communications;

Clause 11
Ms Smuts asked what clause 11(4) meant as it referred to the revocation of licenses.

Ms Lowesa Stuurman, Researcher from the South African Law Reform Commission (SALR) said that the offence of trafficking did not apply only to individuals; it also applied to juristic persons such as a recruitment agency which if involved in the offence of trafficking would be subject to clause 11(4).

Ms Philane-Majake endorsed the provisions of clause 11(4) and how they provided for the revocation of licenses even though they seemed drastic.

Mr Swart said that clause 11(4)(c) should include the word ‘may’ and this was a standard provision it would mean that the matter could be referred to a court.

Mr Jeffery said that the situation under clause 8(4) was covered under clause 11(4) therefore it could come out. The authority referred to in the Bill should be local. Just because an airline happened to negligently have a couple of trafficked victims on board did not mean that the entire license had to be revoked.

Ms Schäfer said that extra-territorial jurisdiction could only apply in terms of clause 12.

Ms Stuurman said that the drafters would ensure that under clause 11(4)(b) reference would be made to  SA authority. A ‘may’ would be included under clause 11(4)(c).

Mr Robbertse suggested that electronic communication service providers often faced civil claims and now there would also be criminal sanctions, perhaps the Committee could consider absolving them from civil liability.

Ms Steyn said that this had already been agreed to by the Committee last week and referred the Committee to page 17.

Chapter 2
Ms Schäfer referred to 4(2) and suggested that the words ‘against a victim of trafficking’ should be removed.

Mr Swart said that sub-clause 2 seemed to create a separate offence of either adoption or forced marriage. Under exploitation there was the inclusion of slavery, forced marriage and servitude. So forced marriage could be sexual exploitation, slavery or servitude. If ‘victim of trafficking’ was removed then a separate offence that dealt with illegal adoption would be created that would have nothing to do with trafficking. The Committee had decided on the definition of sexual exploitation and that it would be linked with a victim of trafficking. Was there a valid concern raised by Ms Schäfer?

Mr Jeffery asked why it was necessary for sexual exploitation to only be committed on certified victims of trafficking.

Ms Stuurman said that the definition of sexual exploitation should be read together with the offence of trafficking. The offence of trafficking was clear as to whom it applied. Having the words ‘against a victim of trafficking’ at the end of the definition of sexual exploitation would not make much of a difference.

Clause 16
The Chairperson referred to clause 16 and asked the Committee what they thought.

Ms Steyn referred to paragraph (d) and asked for the Committee’s guidance on the appropriate wording.

Ms Schafer proposed that the clause should include the words ‘despite these provisions’ as well as any other’. This would be preferable as opposed to limiting the provision to specifics.

The Committee agreed.

Ms Steyn asked for the Committee’s wording on the heading.

The Committee preferred ‘in case of foreign witnesses’.

Clause 15
Ms Steyn referred to footnote 27 and said that the Committee may wish to retain the provision and for the children mentioned therein to remain in the country for the recovery and reflection period.

Mr Swart said that this seemed reasonable.

Mr Jeffery said that the recovery and reflection period was for the victim to be allowed to decide what to do or provide assistance to the police this was different from illegal children. The provisions of clause 14(3) were okay in this regard.

Clause 17
Ms Steyn asked which option the Committee preferred.

Mr Jeffery said that option 2 was better.

Other Members agreed.

Clause 19
Ms Steyn said that the question was whether or not the wording in clause 19(1)(a) should not be linked with that of clause 19(1)(b).

The Committee decided to go with the wording in footnote 53 on page 30.

Clause 31
Ms Steyn said that clause 31(3) was a new clause and asked if the Director General (DG) of Home Affairs may apply on behalf of the person or should it be the person themselves that applied to the Minister of the Department of Home Affairs (DHA).

The Chairperson said that the clause provided for an appeal mechanism.

Mr Swart said that if the DG of DHA decided to not repatriate the person it would be because it was in their own best interest.  Why should the DG assist this person, the clause should provide for that person applying of the DG doing the application, was there any reason it could not be both?

Mr Jeffery said that it seemed strange that the DG of DHA applied to the Minister of DHA. Sub-section 3 should come out.

Ms Stuurman said that the clause has been discussed with the Department of Social Development (DSD) and they requested that they wanted to be responsible for the repatriation of children as they were responsible for child protection.

Mr Jeffery said that this was fine however what stopped a DHA official from putting a child on a plane? 

Ms Philane-Majake said that the Committee would have to consider what was in the Child Care Act so that the two pieces of legislation talked to each other.

Ms Stuurman suggested that DHA may not repatriate a foreign child victim unless they have consulted with DSD. If after an investigation by DSD it was found that it was safe for a child to go back then they should be allowed to go back to their country of origin.

Mr Jeffery asked why the DG of DSD had to be considered, the provision could just mention that due consideration had to be given before a decision was taken and the matter could be sorted out by the departments amongst themselves.

Mr Swart said that he understood the logic and the matter was left open as opposed to having DHA coming in at the last minute again and delaying the process for a further 9 months.

Ms Schäfer said that she was concerned if clause 31(b)(ii) was taken out as opposed to clause 31(b)(i) which was already covered in other legislation.

The Chairperson confirmed that clause 31(b)(i) and 31(b)(ii) as well as clause 31(3).

Clause 33
Mr Jeffery referred to clause 33(a)(v) and said that he was not of the opinion that there was a gap under this provision because the provincial department of social development was responsible. The problem that the Committee was trying to avoid was having huge numbers of people who have not being trafficked claiming the benefits meant for victims and then the accredited organisations would claim more and more government funding.

Clause 37
Ms Steyn referred to clause 37(2) and said that there may be a need for a provision that stated that an agreement may not be in conflict with the provisions of the Bill.

Mr Jeffery said that surely an international agreement would not be in conflict with domestic law. There was no point in including the proposed wording.

Ms Steyn said that it could be left as it was since it was similar to a provision in the Children’s Act.

Ms Steyn took the Committee through the Schedule and there were no objections raised on the provisions.

The Committee requested from the drafters a clean Bill with no footnotes for the Committee to go through clause-by-clause next week and the issue raised by Ms Schäfer under Chapter 2, clause 4(2) would be finalised next week as well. The Committee acknowledged that the Bill was a technical one that would not be a mere five minute approval. 

Meeting adjourned.