Prevention and Combating of Trafficking in Persons Bill [B7B-2010]: briefing

Meeting report

Ms Engela Steyn (DoJCD Senior State Law Advisor: Legislative Development) stated that the Bill was a result of an investigation by South Africa Law Reform Commission. She reported that human trafficking was a very lucrative global industry and South Africa was identified as a country of origin, transit and destination for human trafficking. Victims included victims of war. Trafficked women and children were subjected to forced labor and sexual abuse. They were often forced to take drugs, which led to other health related issues. Human trafficking violated rights against slavery and child endangerment. South Africa needed to align its domestic law with international law. SA did not have adequate law on human trafficking. The Criminal Law (Sexual Offences And Related Matters) Act was not extensive enough to deal with human trafficking. Currently, the Children’s Act and the Immigration Act could be used to prevent trafficking. Hoever, this Bill before the Committee would seek to prosecute culprits to prevent trafficking.

She stated that the Bill was divided into 10 chapters. She proceeded to give a summary of each chapter:
▪ Chapter 1 dealt with definitions of relevant terms including “child” and “debt bondage.”
▪ Chapter 2 dealt with creation of offences and provided penalties for extra territorial offences. Penalties were grouped together in clause 13. They provided that a court must impose a maximum sentence unless there was sufficient reason to warrant a lower sentence.
▪ Chapter 3 dealt with the status of foreign victims of trafficking required to assist in the investigation and prosecution of offences. The Bill stated the that foreign victims of human trafficking would get a 90 day reflection and recovery period to allow them time to get adequate healthcare. If foreign victims agreed to help with investigations, they might be given visitor’s visas. If determined that they would be in danger in their home countries as a result of assisting in investigations, they would be allowed to apply for permanent residency.
▪ Chapter 4 addressed the identification and protection of victims of trafficking. The Bill places a general obligation on any person who ought reasonably to have suspected that a child is a victim of trafficking, to report that to the police.  With regard to adult victims, the obligation to report rests only on those who, in the execution of their duties, ought reasonably have suspected. The Chapter sets out the powers of a police official in respect of victims of trafficking, which include entering premises without a search warrant. Another protection mechanism is that when deciding whether to prosecute a victim of trafficking, the prosecutor consider whether the offence was committed as a direct result of the person being a victim of trafficking. Criminal prosecution against the victims of trafficking may not happen without the approval of the Director of Public Prosecutions. A further protection measure is unauthorised disclosure of information about a victim of trafficking constitutes an offence.
▪ Chapter 5 dealt with the accreditation of organisations that assisted victims of human trafficking.
▪ Chapter 6 provided that the court may order a person convicted of trafficking to compensate victims for injury and loss of income, amongst others, and the state for expenses incurred with respect to the victim. Currently, the law did not provide victims with the option to claim damages from traffickers.
▪ Chapter 7 dealt with repatriation of victims. It stated that the government had to determine whether the victim would be safe in their home country. Children would have to be accompanied by an adult on the trip home.
▪ Chapter 8 provided general provisions such as the suspension of parental rights if parents were responsible for the trafficking of their child.
▪ Chapter 9 dealt with administration of the Act. It provided that the Minister of Justice and Constitutional Development must adopt a National Policy Framework, which is intended to ensure a uniform, coordinated cooperative approach by all government departments dealing with human trafficking, to guide the implementation of the Bill and enhance service delivery through a developed plan. It also provided that the Director General: Justice and Constitutional Development, in consultation with various stakeholders, develop a draft national policy framework, embark on the establishment of an integrated information system to facilitate the effective monitoring and implementation of the Bill, develop and review guidelines on the identification of victims of trafficking and of traffickers; and establish public awareness programmes or other measures for the prevention and combating of trafficking in persons.
▪ Chapter 10 dealt with repealing the current law. Once the Bill was adopted, the current law dealing with the same issue would be repealed. Organisations already providing services to victims would continue doing so until accreditation framework was complete.

Mr Lawrence Basset (DoJCD Chief Director: Legislation) stated that the South African Police Service, National Prosecuting Authority, and the Departments of Home Affairs and Social Development were working together to ensure the proper implementation of this Bill. Clause 4 that dealt with penalties had caused great debate, particularly because of the R100 million rand fine or life imprisonment maximum sentence. He explained that this severe penalty was aimed at telling courts about the severity of the issue. Another contentious issue was the concern over the possibility of people making false claims of being victims of trafficking so as to gain residency status in SA. The Department of Social Development would be mandated to assess such claims through a verifying process. This department would also be responsible for the accreditation of organizations to assist victims of trafficking. On compensation, the Department of Justice would implement an integrated information system.

Ms Lowesa Stuurman (Principal State Law Advisor; SA Law Reform Commission) stated that there was a big contention with regard to adult victims in the Bill. If they went to hospital and a doctor realized that they were victims of human trafficking, the doctor was required to report this to the police. Currently, the law required the written consent of the victim in order for a report to be made [to protect privacy]. However, she suggested that it was impractical to expect victims to give their consent considering the fact that they were very vulnerable. Another issue of debate had been whether victims of trafficking should be prosecuted for entering the country illegally.

Discussion
The Chair asked for clarification on the verifying of victims of trafficking.

He said the Justice Department had been briefed on the matter of personal information through the Protection of Personal Information Bill, the Protection of Information Bill, and now the department was bringing it back. Why were there so many bills dealing with the same issue? What was the department trying to emphasize on this matter? He added that the phrase “ought reasonably to have known” in terms of the Information Bill had been previously dropped. Why had the department brought it back?
In terms of coordination, he wanted to know which department would take the lead in dealing with human trafficking, and how?

Mr D Bloem (COPE) asked how long the Bill had been in the National Assembly. Was this Committee being rushed into passing this Bill? When was the D date for the Committee to pass this Bill? He said that he did not want the Committee to turn into a rubber-stamp committee.

Mr L Nzimande (ANC) said that this was a very technical Bill that members needed to assess in terms of consistency with existing laws.

Mr Nzimande was concerned that chapter 4 of the bill placed some kind of liability on a person who, while executing his duties, suspected someone of being a victim of trafficking. From his understanding of the Bill, it seemed as though such a person might have the burden of proving his innocence if he failed to report his suspicion."
With regard to Chapter 5 on accreditation of organisations, he felt that there was a need to allow for a broad enough participation of organisations and people.

A committee member was concerned that once medical officers revealed information about a victim to police, the information would be used in the investigation and thus because state information. Would not this be a problem? How did the department know that human trafficking was a lucrative business? Did they have statistics available? What was the conviction rate? What were the charges that they could bring against culprits besides trafficking?

Mr D Joseph (DA) was concerned that there would be a constitutional issue with the Bill because it told the court that it must impose a certain penalty.

A committee member wanted more details on how they would deal with foreigners making false claims about human trafficking.

The Chair wanted clarification on which departments had been debating on how to deal with human trafficking.

Mr Bassett stated that the Bill was introduced into Parliament in March 2010. He was not in a position to say when the Committee should finalise the Bill.

Ms Stuurman stated that there was a different process for identifying adult and child victims of trafficking. In both cases, medical officials must report suspicion of trafficking to police. Child victims would be brought before the Children’s Court to determine if indeed they are victims. For adults, however, one option was to refer them to the relevant accredited organisations, which would then determine if they were genuine victims. The concern raised about this approach was that the accredited organisations might be biased because they would benefit more in terms of funding if they had more victims to serve. This Bill therefore mandated the provincial departments of social development to assess cases to determine genuine victims.

On coordination of this Bill, with the Sexual Offences Act and the Children’s Act, she said that once this Bill was passed, the provisions that catered for trafficking would be repealed in the existing legislation. On penalties, she reiterated that it was aimed at showing courts the severity of the offence.

Ms Steyn stated that the Bill provided that the Department of Justice take the lead on this issue. However, there would have to be a consultative process among all the role players. On liability, she stated that a person who reported victims of trafficking in good faith would not be liable for damages in a civil suit.

The Chair wanted details on how the roles of the department would be coordinated.

Mr Bloem asked what the role of the provinces would be. Was this a national issue?

Mr Bassett stated that Clause 20 dealt with the process of accreditation of organisations and this was a Department of Social Development process.

Ms Stuurman added that the Department of Social Development was equipping existing organisations with resources to specifically cater for victims of trafficking in preparation for the new law.

Mr Joseph asked if the Department knew the financial status of the trafficking businesses.

Mr Bloem remarked that this would be a costly venture. He wondered which department would cover the cost.

The Chair stated that the Department had reported that it had no statistics on human trafficking in SA. How would they deal with coordination without having the relevant facts?

Mr Stuurman stated that the department’s investigation was based on international statistics, particularly from the United Nations. She admitted that they were not in a position say whether or not human trafficking was a lucrative business in SA because it was a new offence in the country. She said that SA had to have a law that dealt with human trafficking because it was a United Nations member state.

The Chair said that the Committee should not proceed with these questions because they would have time to engage with the department the following week. He asked the Justice Department to ensure that all relevant departments were present at that the next meeting so that members could have a more productive engagement on the issue.

Meeting adjourned.

[Apologies from Mr M Mokgobi (ANC), Mr M Makhubela (COPE), and Mr PM Zulu (ID)]