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Taking Slavery Head-On

1 October 2013

Without Prejudice

The UN Office on Drugs and Crime says people trafficking is the fastest growing means by which people are enslaved, the fastest growing international crime, and one of the largest sources of income for organised crime. UNICEF estimates that 1.2 million children are trafficked every year.

It is undetermined how many cases of human trafficking exist in South Africa as there has been no clear reporting system. And, due to the nature of the crime, victims are unwilling to come forward to report their situation because of potential further harm or force of whatever nature it is that perpetuates the cycle of fear.

In December 2000, South Africa signed the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. This protocol, nicknamed the Palermo Protocol, was subsequently ratified by South Africa in February 2004. In terms of the Palermo Protocol, each signatory to the protocol is to adopt legislation and other measures necessary to establish human trafficking offences.

During May 2013 the National Council of Provinces approved The Prevention and Combating of Trafficking in Persons Bill and it was sent to President Zuma for assent. The Bill was finally signed by President Zuma in July. The Act has filled a necessary gap in our legislation; the prosecuting authority and South African Police Services now no longer need to rely on other laws to charge persons with what is, in effect, human trafficking.

The Prevention and Combating of Trafficking in Persons Act recognises the Palermo Protocol and the three key components of human trafficking, being the act, the means and purpose.

In terms of the Act, "any person who delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person within or across the borders of the Republic by means of a threat of harm, the threat or use of force or other forms of coercion, the abuse of vulnerability, fraud, deception, abduction, kidnapping or the abuse of power... for the purpose of any form or manner of exploitation, is guilty of the offence of trafficking in persons". Additionally, the Act also includes the illegal adoption of a child or the conclusion of a forced marriage for the purpose of exploitation as offences.

The Act recognises a number of ways in which persons can fall prey to trafficking including through forced labour, the removal of body parts, slavery and debt bondage, the latter being where the victim pledges their labour or service as repayment for a loan or a debt. Generally, neither the services nor the debt are defined and the debt remains effectively unpaid from generation to generation.

The Act not only provides for trafficking to be an offence but also its facilitation allowing persons to use a property, which will be used for facilitating or promoting trafficking is an offence; so too is advertising, publishing, printing or distributing any information which facilitates trafficking. The same applies to transporting victims of trafficking where it ought reasonably to be known that they were victims of trafficking. It is important to note that liability for human trafficking is extended from people to juristic persons and partnerships so companies cannot hide behind a corporate veil.

Moreover, the Act provides for the protection of victims of human trafficking and makes provision for certain services, such as the provision of health care services, to be rendered to them in terms of s27 of the Constitution as well as counselling by approved institutions.

Both the police and the National Prosecuting Authority are empowered to assist a victim of human trafficking to apply for the right to permanent residence where that victim has assisted in legal proceedings and could be harmed if repatriated to his country of origin.

The Act is somewhat progressive in that it has imposed obligations on the public at large. Where a person knows or ought to have known that trafficking is occurring in relation to specific people, it is an offence not to disclose this information and, if proven guilty, imprisonment of up to five years could result. The Act clearly stipulates that it is insufficient to claim ignorance and provides that where a reasonable person would have deduced that trafficking was occurring, that person would be deemed to have knowledge of it.

The duty to disclose is also imposed on persons who would otherwise be prohibited from disclosing personal information. In this way any doctor or other professional otherwise hound by a law, police or code of conduct is immediately to report knowledge or suspicion to a police official for investigation. The only exception to this is legal privilege.

However, the Act has its pitfalls. Insufficient provision has been made for the potential for trafficking across provincial lines, which is in stark contrast with environmental legislation. In considering the legislations as a whole, the focus is generally trafficking into or out of South Africa. This is concerning given that reports have indicated that one in four persons who are found to be victims of human trafficking have been trafficked domestically.

In addition, the Act doesn't take cognisance of the existence of human smuggling, which has been included in trafficking legislation in other countries. Human smuggling is the practice whereby a person is carried over a border with the assistance of a third person, the smuggler. While the person being smuggled, the migrant is not always aware of the destination to which they are travelling; sometimes they consent to being smuggled across borders without coercion or threat of force. The migrants aren't victims at this stage and willingly enter into discussions with the smuggler in order to leave their country or place of origin.

In this sense those who have assisted persons in leaving a country through the process of human smuggling can be found guilty of an offence. The need for this inclusion is evident to anyone who has dealt with refugees and the position is confirmed by the fact that the United States legislation makes provision for it.

Regarding practical enforcement, the Act makes provision for the protective custody of victims of human trafficking but it is not specified what type of facility will be used. There is no clarity as to whether this will be a detention facility clothed as a protective custody facility or whether it will actually provide for the safety and care of persons who have been subjected to this horrendous crime. This must be considered in light of the fact that the very definition of protective custody makes reference to the detention or confinement of a person by the South Africa Police Service. This is concerning given the nature of the crime and the need for there to be sensitivity when dealing with victims of trafficking.

Further to this, the Act includes provisions that are hardly acceptable. An example of this is the reference to an "illegal foreign child." This is prejudicial to the child who, through no fault of its own, is in the country without documentation. To mark a child "illegal" is to create a label, which he or she can do nothing to change.

Thankfully the penalties have increased in accordance with the number of drafts that were prepared. The penalties are fines of up to R100m and potential life imprisonment. Any person guilty of human trafficking could he up for life imprisonment; the illegal adoption of a child or the conclusion of a forced marriage could result in life imprisonment or a fine of up to R100m. Debt bondage or the disclosure of protected information could result in a fine or 15 years imprisonment. Additionally, the destruction, tampering or confiscation of documents comes with a fine and possible imprisonment of up to 10 years.

Interestingly, in addition to these penalties, a court may order that compensation be awarded to the victim of human trafficking and the state for the costs of caring for, accommodating and transporting or repatriating the victim.

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