CHAPTER 1

INTERPRETATION, OBJECTS, APPLICATION AND IMPLEMENTATION OF ACT

"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―

(a) means the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of the Republic―

(i) [by means of] by any means, including the use of threat, force or other forms of coercion, abduction, fraud, deception, abuse of power or the giving or receiving of payments or benefits to achieve the consent of a person having control over a child; or

(ii) due to a position of vulnerability.

for the purpose of exploitation.

(b) includes the adoption of a child facilitated or secured through an illegal means or the exploitation of a person’s vulnerability.

"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

(b)[(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 Foreign Affairs, without delay and with due regard to the safety of a South African child who has been trafficked to another country must, through its diplomatic channels, facilitate the return of the child to South Africa.

(2)[(1)] The Director-General of the Department of Home Affairs, without delay and with due regard to the safety of a child referred to in subsection (1), must―

(a) [facilitate and] accept the return of the child [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 the [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 the [a] child [who is a victim of trafficking] to travel to and re-enter the Republic.

(2) Subsection (1) and (2) apply [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), or a child victim of trafficking found in the Republic who is a South African child or a child residing permanently in South Africa if 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 or place in the Republic where the child is for the purpose of escorting the child back to South Africa or to the place in the Republic from where the child has been trafficked.

(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.

(5) The Director-General of the Department of Home Affairs must, on arrival of a child referred to in subsection (1) in South Africa, refer the child to a designated social worker for an investigation in terms of section 155(2).

Trafficking in children prohibited

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

(2) It is no defence to a charge of contravening subsection (1) that―

(a) [The consent of] a child who is a victim of trafficking or a person having control over that child has consented to―

(i) the intended exploitation; or

(ii) the adoption of the child facilitated or secured through an illegal means or the through the exploitation of a person’s vulnerability.

(b) the intended exploitation or adoption of a child referred to in subsection (a) did not occur [is no defence to a charge of contravening subsection (1)].

(3) In order to establish the liability of a juristic person or a partnership as contemplated in subsection (1), the conduct of an employee of or any person acting on behalf of the juristic person or partnership may be attributed to the juristic person or partnership 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 or partnership, 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 or partnership has committed an act in contravention of the prohibition set out in subsection (1) serves as a ground for revoking 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 or other person who has parental responsibilities and rights

286. If a court finds or has reason to believe that the parent[,] or 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.

Reporting of child victims of trafficking

287. An immigration official, a police official, social worker, social service professional, medical practitioner or registered nurse who comes in contact with a child victim of trafficking in the Republic must refer that child to a designated social worker as contemplated in section 288(1).

Victims of child trafficking found in Republic

288. (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 investigation [hearing], be placed in temporary safe care.

(2) If, after an investigation contemplated in subsection (1)(a), an illegal foreign 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 an illegal foreign child victim of trafficking 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

289. (1) The Director-General may not return a trafficked child contemplated in section 288 (1) to his or her country of origin or the country from where the child 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) may be escorted by an adult person authorised by the Director-General if 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 country from where the child has been trafficked.

(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

290. (1) Any person who, while being a citizen of or permanently residing in the Republic of South Africa, a juristic person or a partnership 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, natural or juristic, or partnership may not be prosecuted for an act contemplated in subsection (1) if that person or partnership 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 or partnership contemplated in subsection (1) is ordinary resident shall have jurisdiction to try the matter as if the offence had been committed within its jurisdiction.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER 20

ENFORCEMENT OF ACT

Offences

298. (1) A person is guilty of an offence if that person―

(a) commits an act in contravention of the prohibition set out in section 12(3);

(b) contravenes a provision of section 32(4), 74, 95, 116(1), 123(1), (2) or (3), 127, 133(1), 137, 138, 139(3), 249, 250(1), 252, 272, [283(1)], 294, 295 or 296;

(c) fails to comply with a provision of section 57(2), 89, 105(1), 124, 126(1), 134(1), 140, 178 or 226;

(d) fails to comply with a request in terms of section 57 (1);

(e) misappropriates money for which that person is accountable in terms of section 136(3);

(f) fails to comply with section 78(1), 95(1), 196(1) or 215(1) after that person has been instructed by way of a notice of enforcement in terms of section 80, 99, 198 or 217 to comply with the relevant section;

(g) fails to stop operating an unregistered child and youth care centre, partial care facility, shelter or drop-in centre after that person has been instructed by way of a notice of enforcement in terms of section 80, 198 or 217 to stop operating that child and youth care centre, partial care facility, shelter or drop-in centre;

(h) fails to stop providing early childhood development services after that person has been instructed by way of a notice of enforcement in terms of section 99 to stop providing those services;

(i) directly or indirectly counsels, induces or aids any child to whom leave of absence has been granted in terms of section 168 not to return to the child and youth care centre or person in whose care or temporary safe care that child has been placed, or prevents the child from returning to that centre or person after the expiration of the period of leave or after the cancellation of such leave;

(j) remove a child in alternative care from the Republic without the prior written approval for such removal first being obtained in terms of section 169;

(k) knowing that a child in alternative care has absconded from or failed to return to that care, directly or indirectly counsels, induces or aids that child not to return to such care, or harbours or prevents the child from returning to that care;

(l) hinders or obstructs―

(i) a police official or designated social worker in the execution of a warrant issued in terms of section 151(2);

(ii) a police official, social worker or authorised officer when removing a child to temporary safe care in terms of section 152(1);

(iii) a police official, social worker or authorised officer when apprehending a child who has absconded from alternative care in terms of section 170(1);

(m) hinders or interferes with a person in the execution of official duties in terms of section 297;

(n) fails to comply with a request of a person in the execution of his or her official duties in terms of section 50(4) or section 297 or furnishes false or misleading information to such a person when complying with such a request;

(o) falsely professes to be a person authorised in terms of section 50(4) or 297 or an assistant of such a person;

(p) has been issued with a written notice as contemplated in section 153(1) and―

(i) refuses to leave the home or the place where the child resides; or

(ii) has contact with the child in contravention of the written notice; or

(q) contravenes or fails to comply with an order of a High Court, Divorce Court in a divorce case and children’s court issued in terms of this Act, including section 153(6), or contravenes or fails to comply with any condition contained in such order.

(r) commits an act in contravention of the prohibition set out in section 285(1).

(s) commits an act in contravention of the prohibition set out in section 284(1).

(2) A person unfit to work with children is guilty of an offence if that person –

(a) operates or assists in any way in operating a partial care facility, child and youth care centre or a shelter or drop-in centre;

(b) assumes the foster care, kinship care or temporary safe care of a child; or

(c) applies for the foster care, kinship care, temporary safe care or adoption of a child.

(3) A parent or care-giver of a child is guilty of an offence if that parent or care-giver –

(a) abuses or deliberately neglects the child; or

(b) abandons the child.

(4) A person who is legally liable to maintain a child is guilty of an offence if that person, while able to do so, fails to provide the child with adequate food, clothing, lodging and medical aid.

(5) A person who is the owner, lessor, manager, tenant or occupier of any premises on which the commercial sexual exploitation of a child has occurred is guilty of an offence if that person, within a reasonable period of gaining information of that occurrence, fails to report the occurrence to the South African Police Service.

(6) A person convicted of an offence in terms of subsection (1)(a) – (r), (2), (3), (4) or (5) is liable to a fine as may be determined in terms of applicable legislation, or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment.

(7) A person convicted of an offence in terms of subsection (1)(s) is, in addition to any other offence of which he or she may be convicted, liable to a prescribed fine or imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.