Anti-human trafficking bill introduced to parliament - Radebe

Justice minister says draft legislation address shortcomings in existing framework


The Department of Justice and Constitutional Development has today introduced into Parliament a Bill aimed at combating human trafficking in South Africa. The Prevention and Combating of Trafficking in Persons Bill (TIP Bill) emanates from an investigation carried out by the South African Law Reform Commission (the Law Reform Commission) into the causes of trafficking in persons. The Law Reform Commission identified some of the main causes of trafficking in persons as attributable to poverty, war and political instability.  Trafficking in persons is a worldwide phenomenon and is one of the most lucrative criminal enterprises globally.  People are trafficked mainly for sexual exploitation and forced labour.

South Africa is a signatory to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in persons, especially women and children. We are therefore required to pass domestic legislation in order to fulfil our international obligations. It therefore follows that we could not have been motivated by FIFA 2010 World Cup to pass legislation.

The Bill, once it becomes an Act on Parliament and is fully operational, will be one of the most comprehensive laws in the fight against human trafficking in this country. The current law regarding trafficking in persons in South Africa is fragmented.  The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007) (the Sexual Offences Amendment Act) and the Children's Act, 2005 (Act No. 38 of 2005) (the Children's Act), contain provisional measures relating to trafficking in persons.  The Sexual Offences Amendment Act criminalizes an act of trafficking in persons for sexual purposes only, while the Children's Act addresses more comprehensively the trafficking of children. It is clear that the two Acts have limited operational scope. The provisions of the Children's Act relating to trafficking of children will come into operation in April 2010.

Whilst it is our view that it is undesirable to combat the scourge of trafficking in persons using fragmented legislation, we wish to dispel a myth that South Africa has not been able to do anything about this crime phenomenon.

The position is clear both under common law and in other Statutes that certain forms of conduct have been characterized in broad terms as falling within the ambit of trafficking in persons. Prosecution of traffickers continues to be pursued on the basis of those laws.

Over and above the legislation already referred to, those involved in acts of trafficking in persons may be prosecuted using other Acts that include the Sexual Offences Act, 1957; the Riotous Assemblies Act, 1956; the Immigration Act, 2002; the Basic Conditions of Employment Act, 1997; the Intimidation Act, 1982; the Domestic Violence Act, 1998; the Films and Publications Act, 1996 and the Prevention of Organized Crime Act, 1998.  Under the common law, depending on the circumstances of each case, persons suspected of trafficking could be charged with kidnapping, common assault, assault with intent to do grievous bodily harm, extortion, attempted murder and murder.

There are a number of reforms that the Bill will bring into place. It provides for prosecution of persons involved in trafficking and also for appropriate sentences to be imposed. It is aimed at preventing and combating trafficking in persons, as well as for the protection and assistance of victims of trafficking.

To further demonstrate the comprehensive nature of this Bill, it creates new offences, namely, trafficking in persons; debt bondage; the possession, destruction, confiscation, concealment of and tampering with travel documents of victims of trafficking; using the services of victims of trafficking; and conduct facilitating trafficking in persons. Carriers which transport victims across the borders of South Africa also commit an offence if the victims do not have the required travel documents with them. Given the global nature of the crime, South African courts will have jurisdiction in respect of acts committed outside South Africa if those acts would have been an offence under the Bill had they been committed in South Africa.  Extra-territorial jurisdiction is an important feature of the Bill. 

On protection of the victims of trafficking, the Bill provides for the referral of victims of trafficking by certain officials, professionals, health practitioners, traditional healers and traditional leaders and ordinary members of the public to the South African Police Service for investigation.  Child victims of trafficking will fall under all the protective measures of the Children's Act, whilst organizations that provide services to adult victims must be accredited and must comply with certain norms and standards and must offer specific programmes to victims of trafficking.

Other protective measures in the Bill include-

  • (i) the prohibition of the prosecution of victims who have been certified as victims of trafficking;
  • (ii) the granting of a recovery and reflection period and, under certain circumstances, the issuing of temporary residence permits and permanent residence permits to foreign victims of trafficking;
  • (iii) the prohibition of the summary deportation of foreign victims;
  • (iv) proper repatriation processes, taking cognizance of the safety of victims during this repatriation process;
  • (v) proper processes when returning a victim who has been trafficked within South Africa, taking cognizance of the safety of the victim; and
  • (vi) the payment of compensation to victims of trafficking.

The Bill further provides for the adoption of a National Policy Framework relating to all matters dealt with in the Bill in order to ensure a uniform, coordinated and cooperative approach by all government departments and institutions in dealing with trafficking in persons matters.

Amendments to other related Acts of Parliament may be necessary. To this end, amendments to the Criminal Procedure Act, 1977, the Immigration Act, 2002, the Children's Act and the Sexual Offences Amendment Act, to bring them into line with the provisions of the Bill and to insert provisions in those laws to deal more effectively with trafficking in persons will in all likelihood take place.

For ordinary South Africans, the Bill addresses the shortcomings of existing legislative infrastructure on trafficking in persons in that it provides for more extensive domestic legislation to combat and curb this crime. The offence of trafficking in persons is extended to include juristic persons and partnerships that can therefore, not hide behind the fact that they are juristic persons or partnerships.  Internet service providers are obliged to report internet addresses on their servers which are suspected of containing information that facilitates or promotes trafficking in persons. South African courts will have jurisdiction in respect of acts committed outside South Africa if those acts would have been an offence under the Bill had they been committed in South Africa.

Trafficking in persons is indeed a criminal justice issue which must be dealt with in the criminal justice system with inputs from other relevant Government Departments and institutions.

The Bill provides that functionaries, who do not comply with their duties in terms of the Bill, may be held criminally liable. 

It provides that the National Commissioner of the South African Police Service, the Departments of Home Affairs and Labour and the National Director of Public Prosecutions must issue national instructions and directives which must be followed by their respective officials in dealing with trafficking in persons matters.

Non-compliance by these officials may result in disciplinary steps, therefore ensuring the effectiveness of the Bill.

Upon conviction, sentence, depending on circumstances of each case, may take the form of a fine or imprisonment, including imprisonment for life or both such fine and imprisonment. Penalty for debt bondage may be a fine or imprisonment for a period not exceeding 15 years. Penalty for possession, destruction, confiscation, concealment of or tampering with travel documents may attract a fine or imprisonment of up to 10 years. It is a criminal offence to facilitate trafficking in persons.

A person may be held liable to a fine or imprisonment for a period not exceeding 10 years and an internet service provider that fails to comply with certain duties in terms of the Bill may be held liable to a fine or imprisonment for a period not exceeding 5 years. The Bill criminalizes an act by which a carrier brings a victim of trafficking into or removes a victim from South Africa, knowing that a victim does not  have a valid passport, or where applicable, a valid visa for which a fine not exceeding R1 million or imprisonment for a period not exceeding 5 years may be imposed.

As Government we remain unrelenting in our commitment to fight crime, however way it manifests itself - even in the form that seeks to prey on the most vulnerable members of our communities, women and children. We will make every effort as the Department of Justice and Constitutional Development, working together with our sister Departments in the cluster, to ensure that law enforcement arsenal is well-positioned to respond in the most effective manner against crime.

Statement issued by the Department of Justice and Constitutional Development, March 16 2010

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