BRIEFING:
24 JUNE 2005
TRAFFICKING IN WOMEN AND CHILDREN
South African Police Service
(c) "Structured group" shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure;
(d) "Property" shall mean assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to, or interest in, such assets;
(e) "Proceeds of crime" shall mean any property derived from or obtained, directly or indirectly, through the commission of an offence;
(f) "Freezing" or "seizure" shall mean temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority;
(g) "Confiscation", which includes forfeiture where applicable, shall mean the permanent deprivation of property by order of a court or other competent authority;
(h) "Predicate offence" shall mean any offence as a result of which proceeds have been generated that may become the subject of an offence as defined in article 6 of this Convention;
(i) "Controlled delivery" shall mean the technique of allowing illicit or suspect consignments to pass out of, through or into the territory of one or more States, with the knowledge and under the supervision of their competent authorities, with a view to the investigation of an offence and the identification of persons involved in the commission of the offence;
(j) "Regional economic integration organization" shall mean an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention and which has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it; references to "States Parties" under this Convention shall apply to such organizations within the limits of their competence.
Article 5 - Criminalization of participation in an organized criminal group
1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
(a) Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:
(i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;
(ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:
a. Criminal activities of the organized criminal group;
b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;
(b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.
2. The knowledge, intent, aim, purpose or agreement referred to in paragraph 1 of this article may be inferred from objective factual circumstances.
3. States Parties whose domestic law requires involvement of an organized criminal group for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article shall ensure that their domestic law covers all serious crimes involving organized criminal groups. Such States Parties, as well as States Parties whose domestic law requires an act in furtherance of the agreement for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article, shall so inform the Secretary-General of the United Nations at the time of their signature or of deposit of their instrument of ratification, acceptance or approval of or accession to this Convention.
3.2 United Nations Convention on the Rights of a Child
Article 19
1. State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore and as appropriate, for judicial involvement.
Article 34
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitation use of children in prostitution or other unlawful sexual practices;
(c) The exploitation use of children in pornographic performances and materials.
3.3 Protocol to Prevent and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime
Article 2 - Statement of purpose
The purposes of this Protocol are:
(a) To prevent and combat trafficking in persons, paying particular attention to women and children;
(b) To protect and assist the victims of such trafficking, with full respect for their human rights; and
(c) To promote cooperation among States Parties in order to meet those objectives.
Article 3 - Use of terms
For the purposes of this Protocol:
(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) "Child" shall mean any person under eighteen years of age.
4. NATIONAL(SA) OBLIGATIONS
The Constitution of the RSA, 1996 (Act no108 of 1996)
Child Care Act, 1983 (Act no 74 of 1983, as amended)
Sexual Offences Act, 1957 (Act no 23 of 1957, as amended)
Films and Publications Act, 1996 (Act no 65 of 1996)
Basic Conditions of Employment Act, 1997
Labour Relations Act, 1998
Immigration Act, 2002
Several Acts relating to Education
ETC
5. EXAMPLES OF NATIONAL(SA) OBLIGATIONS/LEGISLATION
Common Law offences
Rape - A male having unlawful and intentional sexual intercourse with a female without her consent
Incest - The unlawful and intentional sexual intercourse between male and female persons who are prohibited from marrying each other because they are related within the prohibited degrees of consanguinity, affinity or adoptive relationship
Indecent Assault - The unlawfully and intentionally assaulting another with the object of committing an indecency
Murder - The unlawful and intentional causing of the death of another human being
Assault - The unlawfully and intentionally (a) applying force, directly or indirectly, to the person of another, or (b) threatening another with immediate personal violence in circumstances which lead the threatened person to believe that the other intends and has the power to carry out the threat
Assault with intent to do grievous bodily harm (GBH) - Assault, but is qualified by a certain intention (intent to do grievous bodily harm)
Abduction (Common Law) - The unlawfully and intentionally removing an unmarried minor from the control of his or her parent or guardian in order to enable someone to marry him or her or to have sexual intercourse with him/ her
Kidnapping - The unlawfully and intentionally depriving a person of his freedom of movement and/or, if such person is a child, his custodians of their control over him
Statutory obligations/offences
The Constitution of the RSA, 1996 (Act no108 of 1996)
Section 28 - Children
(1) Every child has the right-
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglected, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that-
(i) are in appropriate for a person of that child’s age or
(ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child may be detained only for the shortest appropriate period of time, and has the right to be -
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child’s age;
(h) to have a legal practitioner assigned to the child by the state, and at states expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.
(2) A child’s best interests are of paramount importance in every matter concerning the child.
(3) In this section "child" means a person under the age of 18 years.
Child Care Act, 1983 (Act no 74 of 1983, as amended)
Section 50 Ill-treatment or abandonment of children
(1) Any parent or guardian of a child or any person having the custody of a child who-
(a) ill-treats that child or allows it to be ill-treated; or
(b) abandons that child,
or any other person who ill-treats a child, shall be guilty of an offence.
(2) Any person legally liable to maintain a child who, while able to do so, fails to provide that child with adequate food, clothing, lodging and medical aid, shall be guilty of an offence.
(3) Any person convicted of any offence under this section shall be liable to a fine not exceeding R20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
Section 50A Commercial sexual exploitation of children
(1) Any person who participates or is involved in the commercial sexual exploitation of a child shall be guilty of an offence.
(2) Any person who is an owner, lessor, manager, tenant or occupier of property on which the commercial sexual exploitation of a child occurs and who, within a reasonable time of gaining information of such occurrence, fails to report such occurrence at a police station, shall be guilty of an offence.
(3) Any person who is convicted of an offence in terms of this section, shall be liable to a fine, or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment.
Section 52A - Prohibition of employment of certain children
(1) Subject to the provisions of this Act or any other law, no person may employ or provide work to any child under the age of 15 years.
(2) The Minister may, on the conditions determined by him-
(a) by notice in the Gazette exclude any employment or work from the provisions of subsection (1); and
(b) grant any particular person, or persons generally, exemption from the provisions of subsection (1).
(3) An exemption under subsection (2) (b) shall-
(a) in the case of the exemption of a particular person be granted by issuing to such person a certificate of exemption in which his name and the conditions of the exemption and the name of the child or a description of the category of children with respect to whom exemption is granted are specified;
(b) in the case of the exemption of persons generally, be granted by the publication in the Gazette of a notice in which such persons are described and the conditions of the exemption and a description of the category of children with respect to whom exemption is granted are specified.
(4) A certificate of exemption contemplated in subsection (3) (a) and a notice contemplated in subsection (3) (b) may at any time be amended or withdrawn by the Minister.
(5) Any person who contravenes any provision of this section shall be guilty of an offence.
Sexual Offences Act, 1957 (Act no 23 of 1957, as amended)
Section 9 - Parent or guardian procuring defilement of child or ward
(1) Any person who, being a parent or guardian of any child under the age of 18 years-
(a) permits, procures or attempts to procure such child to have unlawful carnal intercourse, or to commit any immoral or indecent act, with any person other than the procurer, or to reside in or to frequent a brothel; or
(b) orders, permits, or in any way assists in bringing about, or receives any consideration for, the defilement, seduction, or prostitution of such child,
shall be guilty of an offence.
(1A) For the purposes of subsection 1 (b) a parent or guardian whose child has been defiled or seduced or has become a prostitute, shall be deemed to have assisted in bringing about that defilement, seduction or prostitution if he has knowingly permitted his child to consort with, or to continue in the employment of, a prostitute or a person with an immoral reputation.
(2) The term 'guardian' in this section includes any person who has in law or in fact the custody or control of the child.
Section 10 - Procuration
Any person who-
(a) procures or attempts to procure any female to have unlawful carnal intercourse with any person other than the procurer or in any way assists in bringing about such intercourse; or
(b) inveigles or entices any female to a brothel for the purpose of unlawful carnal intercourse or prostitution or conceals in any such house or place any female so inveigled or enticed; or
(c) procures or attempts to procure any female to become a common prostitute; or
(d) procures or attempts to procure any female to become an inmate of a brothel; or
(e) applies, administers to or causes to be taken by any female any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower her so as thereby to enable any person other than the procurer to have unlawful carnal intercourse with such female,
shall be guilty of an offence.
Section 11 - Conspiracy to defile
Any person who conspires with any other person to induce any female by any false pretence or other fraudulent means to allow any male to have unlawful carnal intercourse with her, shall be guilty of an offence.
Section 12 - Detention for purposes of unlawful carnal intercourse
(1) Any person who takes or detains any female against her will-
(a) to or in or upon any house or place with intent that she may be unlawfully carnally known by any male, whether a particular male or not; or
(b) to or in a brothel,
shall be guilty of an offence.
(2) Where a female is in or upon any house or place for the purpose that she may be unlawfully carnally known by any male, whether a particular male or not, or is in any brothel, she shall for the purposes of this section be deemed to have been taken thereto or to be detained therein or thereon against her will-
(a) if she is under the age of sixteen years; or
(b) if she, being of or above the age of sixteen years and under the age of twenty-one years, was taken or is detained against her will or against the will of her father or mother, or any person having the lawful care or charge of her.
(3) Any person shall be deemed to detain a female in or upon any house or place or in a brothel if, with intent to compel or induce her to remain in or upon such house or place or in such brothel, such person withholds from her any wearing apparel or other property to the possession of which she is entitled or which has been lent or supplied to her by such person or for the purposes of prostitution; and any such female shall be justified in taking away such wearing apparel as is necessary to enable her to leave such house or place or brothel.
Section 12A - Assistance for purposes of unlawful carnal
(1) Any person who, with intent or while he reasonably ought to have foreseen the possibility that any person may have unlawful carnal intercourse, or commit an act of indecency, with any other person for reward, performs for reward any act which is calculated to enable such other person to communicate with any such person, shall be guilty of an offence.
Section 13 - Abduction
(1) Any person who takes or detains or causes to be taken or detained any unmarried male or female under the age of twenty-one years out of the custody and against the will of his or her father or mother or guardian, with intent that such person or any other person, whether a particular person or not, may have unlawful carnal intercourse with such unmarried male or female, shall be guilty of an offence.
(2) The term 'guardian' in this section includes any person who has in law or in fact the custody or control of the unmarried male or female.
Section 14 - Sexual offences with youths
(1) Any male person who-
(a) has or attempts to have unlawful carnal intercourse with a girl under the age of 16 years; or
(b) commits or attempts to commit with such a girl or with a boy under the age of 19 years an immoral or indecent act; or
(c) solicits or entices such a girl or boy to the commission of an immoral or indecent act,
shall be guilty of an offence.
(2) It shall be a sufficient defence to any charge under subsection (1) if it shall be made to appear to the court-
(a) that the girl at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which he is so charged; or
(b) [Paras. (b) and (bA) deleted when s. 14 substituted by s. 5 of Act 2 of 1988]
(c) that the girl or person in whose charge she was, deceived the person so charged into believing that she was over the age of 16 years at the said time.
(3) Any female who-
(a) has or attempts to have unlawful carnal intercourse with a boy under the age of sixteen years; or
(b) commits or attempts to commit with such a boy or with a girl under the age of 19 years an immoral or indecent act; or
(c) solicits or entices such a boy or girl to the commission of an immoral or indecent act,
shall be guilty of an offence.
(4) It shall be a sufficient defence to any charge under subsection (3) if it shall be made to appear to the court-
(a) that the boy at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which she is so charged; or
(b) that the boy or person in whose charge he was, deceived the person so charged into believing that he was over the age of 16 years at the said time.
6. TRAFFICKING IN WOMEN AND CHILDREN IN SOUTH AFRICA
Crimes / legislation
No specific legislation on trafficking in persons in South Africa.
Role of the SA Police Service
Section 205(3) of the Constitution of the Republic of South Africa, 1996, (Act no 108 of 1996), The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.
Members of the SAPS must thus enforce existing legislation (law).
If a crime has been identified or reported to the SAPS, it will be investigated.
When focusing on possible trafficking issues, a specific crime, for example kidnaping, abduction, rape, fraud or other offences defined in legislation, i.e. Child Care Act, Sexual Offences Act, Immigration Acts, etc, will be investigated.
The commission of these specific crimes will be investigated by a Detective.
If it is found that a person from another country is in South Africa without the necessary documentation, the person will be send back to his/her country of origin by means of the formal prescribed processes.
Separate statistics on crimes related to possible trafficking in persons are not kept. The focus is on the specific crime (SA Law), and not the circumstances.
In cases where there are an indication that syndicates are involved, it will be dealt with by the Component: Organized Crime. A special Desk: Trafficking in Human Beings, has been established to deal with these matters.
The SAPS is represented on several committees dealing with issues relating to trafficking in persons, for example the Trafficking in Persons Inter-Sectoral Task Team (Task Team) which was established on 5 December 2003. The following six (6) pillars of a national strategy have been identified in an attempt to effectively address trafficking in persons in South Africa. These pillars are:
Information
Capacity Building and Development
Victim Support and Integration
Legislation and Policy Development
Monitoring and Evaluation and
Liaison and Consultation.
7. CONCLUSION
The following aspects are examples of aspects which are of utmost importance when attending to issues relating to trafficking in persons:
A multi-disciplinary approach must be followed
Co-operation between all role players must be ensured
Information/facts must be supplied to the relevant role-player for the necessary investigation and actions, i.e. knowledge of the commission of crimes must be reported to the SA Police Service
Responsible reporting (focus on facts).
Compiled by-
Director JL Oosthuizen
Senior Superintendent A Pienaar
Telephone number (012) 393-2186