TRAFFICKING IN CHILDREN

"exploitation", in relation to a child, includes—

(a) all forms of slavery or practices similar to slavery, including debt bondage or forced marriages;

(b) sexual exploitation;

(c) servitude;

(d) forced labour or services;

(e) the worst forms of child labour prohibited in terms of section 141;and

(f) the removal of body parts;

"traffic", in relation to a child, means the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of the Republic, [by means of] by any means, including, the use of threat, force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over a child for the purpose of exploitation or to facilitate or secure the adoption of a child;

"removal of body parts" means the removal of any organ or other body part from a living person in violation of the Human Tissue Act, 1983 (Act No. 65 of 1983);

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER 18 [19]

TRAFFICKING IN CHILDREN

 

Purposes of this Chapter

280. The purposes of this Chapter are―

(a) to give effect to the UN Protocol to Prevent Trafficking in Persons;

(b) to give effect to certain bilateral or multilateral agreements relating to trafficking in children; and

(c) generally to [regulate] combat trafficking in children.

UN Protocol to Prevent Trafficking in Persons to have force of law

281. The UN Protocol to Prevent Trafficking in Persons is in force in the Republic and its provisions are law in the Republic, subject to the provisions of this Act.

International co-operation

282. (1) The President may on such conditions as he or she deems fit

(a) enter into an agreement with a foreign State that is not a State Party to the UN Protocol to Prevent Trafficking in Persons in respect of any matter pertaining to trafficking in children;

(b) enter into an agreement with a foreign State that is a State Party to the UN Protocol to Prevent Trafficking in Persons in respect of any matter pertaining to trafficking in children for the purpose of supplementing the provisions of the Protocol or to facilitate the application of the principles contained therein.

(2) An agreement contemplated in subsection (1)(a) or (b) may not be in conflict with the provisions of the UN Protocol to Prevent Trafficking in Persons.

(3) The President may agree to any amendment or revocation of an agreement contemplated in subsection (1)(a) or (b).

(4) An agreement contemplated in subsection (1)(a) or (b) or any amendment or revocation thereof, shall not be of any force or effect until the ratification of, or accession to, or amendment or revocation of such agreement has been approved by Parliament.

Assistance to children who are victims of trafficking

283. (1) The Director-General of the Department of Home Affairs, without delay and with due regard to the safety of a child, must

(a) facilitate and accept the return of a South African child who is a victim of trafficking;

(b) at the request of another state that is a party to the UN Protocol to Prevent Trafficking in Persons or to a bilateral or multilateral agreement relating to trafficking in children, verify whether a child who is a victim of trafficking is a national of the Republic or had the right of permanent residency in the Republic;

(c) issue such travel documents or other authorisations as may be needed to enable a child who is a victim of trafficking to travel to and re-enter the Republic.

(2) Subsection (1) applies to any child who, at the time of entry into the territory of the country to which the child had been trafficked, had permanent residence in South Africa.

(3) The Director-General may authorise an adult person to escort a child referred to in subsection (1) if―

(a) the parent, guardian, care-giver or other person who has parental responsibilities and rights in respect of the child provides sufficient proof that he or she does not have the financial means to travel to the country where the child is for the purpose of escorting the child back to South Africa; and

(b) the child is not of a sufficient age, maturity or stage of development to travel alone.

(4) A child referred to in subsection (1) shall be entitled to a travel allowance and, where applicable, an accommodation allowance as prescribed.

(5) An adult person contemplated in subsection (3) shall be entitled to-

(a) a travel allowance and, where applicable, an accommodation allowance as prescribed; and

(b) an escort allowance as prescribed.

Option for substituting subclauses (4) and (5):

(4) If the Director-General has authorised an adult person to escort a child as contemplated in subsection (3), an allowance as prescribed shall be made available for this purpose.

 

Trafficking in children prohibited

284. (1) No person, natural or juristic, may traffic [in children] a child or allow a child to be trafficked.

(2) The consent of a child who is a victim of trafficking or of a person having control over that child to the intended exploitation or adoption of the child, or the fact that the intended exploitation or adoption did not occur is no defence to a charge of contravening subsection (1).

(3) In order to establish the liability of a juristic person as contemplated in subsection (1), the conduct of an employee of or any person acting on behalf of the juristic person may be attributed to the juristic person if that person is acting-

(a) within the scope of his or her employment;

(b) within the scope of his or her actual or apparent authority; or

(c) with the expressed or implied consent of a director of the juristic person, provided that the giving of that consent is within the actual or apparent authority of that director.

(4) A finding by a court that a juristic person has committed an act in contravention of the prohibition set out in subsection (1) may serve as a ground to revoke its license or registration to operate.

Behaviour facilitating trafficking in children prohibited

285. (1) No person, natural or juristic, may―

(a) knowingly lease or sublease or allow any room, house, building or establishment to be used for the purpose of harbouring child victims of trafficking.

(b) advertise, publish, print, broadcast, distribute, or cause the advertisement, publication, printing, broadcasting or distribution of information by any means, including the use of the Internet or other information technology that suggest or allude to behaviour incompatible with this chapter.

(2) An Internet service provider operating in the Republic must report to the South African Police Service sites on its server which contain information incompatible with this chapter.

 

 

Trafficking of children by parent, guardian, care-giver or other person who has parental responsibilities and rights

286. If a court finds or has reason to believe that the parent, guardian or care-giver of a child or any other person who has parental responsibilities and rights in respect of a child, has trafficked the child or allowed the child to be trafficked, the court may

(a) suspend all parental rights of that parent, guardian, care-giver or any other person pending an inquiry by a children’s court; and

(b) place that child in temporary safe care pending the placement of the child in alternative care.

Victims of child trafficking found in Republic

287. (1) Any child who is [the] a victim of trafficking and who is found under circumstances which indicate that he or she is a child contemplated in section 150―

(a) must [immediately be brought before the children’s court for the district in which he or she was found in order to determine whether such child is a child in need of care and protection] be referred to a designated social worker for an investigation in terms of section 155(2); and

(b) may, pending such hearing, be placed in temporary safe care.

(2) If, after an investigation contemplated in subsection (1)(a), the child is brought before the children’s court, the [children’s] court may order that the child [contemplated in subsection (1)] be assisted in applying for asylum in terms of the Refugees Act, 1998 (Act No. 130 of 1998).

(3) A finding in terms of section 156 that a trafficked child is a child in need of care and protection serves as authorisation for allowing the child to remain in the Republic for the duration of the children’s court order.

Repatriation of trafficked children

288. (1) The Director-General may not return a trafficked child contemplated in section 287 (1) to his or her country of origin or to the place from where he or she has been trafficked without giving due consideration to―

(a) the availability of care arrangements in the country to which the child is to be returned;

(b) the safety of the child in the country to which the child is to be returned; and

(c) the possibility that the child might be re-trafficked, harmed or killed.

(2) A child contemplated in subsection (1) must be escorted by an adult person authorised by the Director-General if-

(a) the parent, guardian, care-giver or other person who has parental responsibilities and rights in respect of the child provides sufficient proof that he or she does not have the financial means to travel to South Africa for the purpose of escorting the child back to his or her country of origin or to the place from where the child has been trafficked; and

(b) the child is not of a sufficient age, maturity or stage of development to travel alone.

(3) A child contemplated in subsection (1) shall be entitled to a travel allowance and, where applicable, an accommodation allowance as prescribed;

(4) An adult person contemplated in subsection (2) shall be entitled to-

(a) a travel allowance and, where applicable, an accommodation allowance as prescribed; and

(b) an escort allowance as prescribed.

Option for substituting subclauses (3) and (4):

(3) If the Director-General has authorised an adult person to escort a child as contemplated in subsection (2), an allowance as prescribed shall be made available for this purpose.

Extra-territorial jurisdiction

289. (1) Any person who, while being a citizen of or permanently residing in the Republic of South Africa, or a juristic person registered in terms of any law in the Republic that commits any act outside the Republic which would have constituted an offence in terms of this chapter had it been committed inside the Republic, is guilty of that offence as if the offence was committed in the Republic and is liable on conviction to the same penalty prescribed for such offence.

(2) A person may not be prosecuted for an act contemplated in subsection (1) if that person has been acquitted or convicted, in the country where the act was committed, of that act which would have constituted an offence in terms of this chapter had it been committed in the Republic of South Africa.

(3) The court of the area in which the person contemplated in subsection (1) is ordinary resident shall have jurisdiction to try the matter as if the offence had been committed within its jurisdiction.