THE SOUTH AFRICAN LEGAL REPONSE TO TRAFFICKING HUMAN TRAFFICKING ADV BEATRI KRUGER Faculty of Law University of the Free State, South [email protected].

THE SOUTH AFRICANTHE SOUTH AFRICAN

LEGAL REPONSE

TO

HUMAN TRAFFICKINGTRAFFICKING

ADV BEATRI KRUGERFaculty of Law University of the Free State, South [email protected]@UFS.ac.za

IAWJ Conference, Johannesburg 18-10-07 IAWJ Conference, Johannesburg 18-10-07

Powerpoint design: J VISSER 12-10-07Powerpoint design: J VISSER 12-10-07

ACTIONACTIONAny of the Any of the followingfollowing

AA

NN

DD

MEANSMEANSAny of the followingAny of the following

AA

NN

DD

PURPOSE:PURPOSE:EXPLOITATIONEXPLOITATION

RecruitRecruit DeceiveDeceive SexualSexual

TransportTransport ForceForce Forced LabourForced Labour

TransferTransfer CoercionCoercion Forced Forced marriagemarriage

HarbourHarbour FraudFraud SlaverySlavery

ReceiptReceipt Pay / Pay /

give benefitsgive benefitsRemoval Removal ofof body partsbody parts

Abduct Abduct Illegal Illegal AdoptionAdoption

ELEMENTS of HUMAN TRAFFICKING

TYPICAL TIP SCENARIOTYPICAL TIP SCENARIOOK!

ID

Trafficker

Parents

Victim ID

Transport

BORDER

In / across

Porn & sex for sale

Forced labour

Forced marriage

Body parts

Illegal adoption

POSITION IN SAPOSITION IN SA

SCOPE IN SOUTH AFRICA UNKNOWN – no official statistics

RESEARCH – concerning indications

~2000 Molo : sexual exploitation children

~2003 IOM : sexual exploitation southern Africa

~2003 UNICEF: TIP in Africa

~New studies in progress by ISS & Molo

POSITION IN SAPOSITION IN SA

SA = country ofSA = country of origin origin transittransit

destinationdestination

TIP Report 2007: TIP Report 2007: - SA rated tier 2 special - SA rated tier 2 special

watch watch (since 2005) (since 2005) - why?- why?

SA LEGAL POSITION SA LEGAL POSITION TIP TIP

International International OBLIGATIONS OBLIGATIONS National National

CURRENT SA POSITIONCURRENT SA POSITION

Specific TIP law other Specific TIP law other laws laws

Children’s Act: but not in force Children’s Act: but not in force common law common law legislationlegislation

PROPOSED LAW

OBLIGATIONS

CURRENT SA POSITION

Sexual Offences BillSexual Offences Bill

Combating of TIP Combating of TIP BillBill

Obligations to address Obligations to address TIPTIP

INTERNATIONALINTERNATIONAL UN CONVENTIONS UN CONVENTIONS PALERMO PROTOCOLPALERMO PROTOCOL

NATIONALNATIONAL

CONSTITUTION

freedom + security of freedom + security of personperson dignitydignity

forced labourforced labour

slavery + servitudeslavery + servitudefreedom of freedom of movementmovement

child rightschild rightsno abuseno abuseno exploitative labourno exploitative labourbasic nutrition + basic nutrition + sheltershelterhealth care health care social servicessocial servicesfamily care

COMMON LAW

CRIMES

RAPEMURDER

FRAUD

ABDUCTION

KIDNAPPING

INDECENT ASSAULT

ASSAULT&

ASSAULT GBH

CRIMEN INIURIA

EXTORTION

CURRENT SA POSITIONCURRENT SA POSITION

SLAVERY

APPLICABLE LEGISLATION

SEXUAL OFFENCES

ACT CHILD CARE ACT

FILMS & PUBLICATIONS

ACT

PREVENTION OF ORGANIZED CRIMES ACT

BASIC CONDITIONS OF EMPLOYMENT

ACT

INTIMIDATION ACT

IMMIGRATION ACT

PREVENTION PREVENTION & &

COMBATING COMBATING of CORRUPT of CORRUPT ACTIVITIES ACTIVITIES

ACTACT

RIOTOUS ASSEMBLIES ACT

CURRENT SA POSITIONCURRENT SA POSITION

Challenges in Prosecuting

TIP broader than existing crimes

- E.g. abduction fails if parents consent

Prosecuting difficult: - numerous offences applicable = complex

TIP by juristic persons

Acts relating to crime of TIP Facilitating TIP: recruiter / transporter / recipient Profiteering from TIP crime Attempted TIP Participating in TIP

Challenges in Prosecuting…cont’d

Prosecute victim?...crime due to TIP ~ Sexual Offences Act: prostitution

~ Immigration Act: no ID /passport… deportation

Sentencing

~ less than 20 yrs proposed for TIP offence

Extra-territorial jurisdiction ~ commit TIP in other country – liable

in SA?

International co-operation ~ SALRC Bill: extradition, mutual legal

assistance

CURRENT SA POSITIONCURRENT SA POSITION……cont’dcont’d

SPECIFIC TIP LAWSPECIFIC TIP LAW : : Children’s ActChildren’s Act

Prohibits Trafficking in ChildrenProhibits Trafficking in Children - - No person (natural / juristic) may No person (natural / juristic) may

traffic traffic

- Allow child to be trafficked- Allow child to be trafficked

- No defense: - - No defense: - consent of child / parent consent of child / parent - offence not completed- offence not completed (e.g. exploitation not (e.g. exploitation not

realised)realised)

- Penalty- Penalty - Up to 20 years, fine or both - Up to 20 years, fine or both

Children’s Act :Children’s Act :Defining TraffickingDefining Trafficking

ACTIONACTION:: includes recruit,includes recruit, sale, supplysale, supply,, transport, transport, transfer, harbour / receipt of children, transfer, harbour / receipt of children,

- within or across the borders of the - within or across the borders of the Republic Republic - includes illegal adoption- includes illegal adoption

MEANS:MEANS: any means… includes threat, force, any means… includes threat, force,

coercion, abduction, fraud, coercion, abduction, fraud, deception,deception, abuse of power abuse of power / giving or receiving of / giving or receiving of

benefits to achieve the consent of person in benefits to achieve the consent of person in control of child / due to a position of control of child / due to a position of vulnerabilityvulnerability

PURPOSE:PURPOSE: exploitation…sexual, servitude, slavery, exploitation…sexual, servitude, slavery,

forced marriages, forced labour, child forced marriages, forced labour, child labour, body parts labour, body parts

CHILDREN’S ACTCHILDREN’S ACT

CHALLENGESCHALLENGES

- Not in force- Not in force

- Focus: only - Focus: only children children

- Provisional - Provisional pending TIP Billpending TIP Bill

PROPOSED SA LEGISLATIONPROPOSED SA LEGISLATION

Sexual Offences Bill 2006Sexual Offences Bill 2006

- Focus: only sex trafficking- Focus: only sex trafficking

- Provisional- Provisional

Combating of TIP BillCombating of TIP Bill - Full focus- Full focus

SEXUAL OFFENCES BILLSEXUAL OFFENCES BILL 20062006

TRAFFICKING CRIME … TRAFFICKING CRIME …

for SEXUAL PURPOSESfor SEXUAL PURPOSES

A traffics BA traffics B

without consent of Bwithout consent of B

= guilty of offence of TIP = guilty of offence of TIP for sexual purposesfor sexual purposes

Sexual Offences BillSexual Offences Bill 2006 2006

INVOLVEMENT INVOLVEMENT TIP for sex TIP for sex purposepurpose

A person whoA person who

- orders, - orders, organisesorganises,, supervises, controls supervises, controls trafficking;trafficking;

-- performs any act aimed at committing, performs any act aimed at committing, promoting,promoting,

participating in traffickingparticipating in trafficking; ;

- - incitesincites, aids, advises, recruits, encourages or, aids, advises, recruits, encourages or

procures any other person to commit, procures any other person to commit, contributecontribute

towards / participate in traffickingtowards / participate in trafficking

= guilty of offence= guilty of offence

Sexual Offences BillSexual Offences Bill 20062006

TRAFFICKING DEFINEDTRAFFICKING DEFINED::

ACTIONACTION:: supply, recruitsupply, recruit,, procure, capture, remove,procure, capture, remove,

transport,transport,harbour, saleharbour, sale, , dispose dispose // receiving of a personreceiving of a person- within or across the borders of the Republic- within or across the borders of the Republic

MEANSMEANS::- - threat / force/threat / force/ intimidationintimidation / other coercion/ other coercion- - abduction abduction - fraud /deception /- fraud /deception / false pretencesfalse pretences- - abuse of power / position of vulnerabilityabuse of power / position of vulnerability- giving / receiving of benefits- giving / receiving of benefits

PURPOSEPURPOSE::exploitation,exploitation, groominggrooming or abuse of a sexual or abuse of a sexual

nature nature - include sexual offence / sexual act- include sexual offence / sexual act

- committed in / outside Republic- committed in / outside Republic

Combating TIP BillCombating TIP Bill

Discussion Paper – 2006Discussion Paper – 2006

SA Law Commission:SA Law Commission: Recommend BillRecommend Bill address TIP address TIP

Bill = specific TIP law Bill = specific TIP law - Fulfil international obligations- Fulfil international obligations

- Palermo Protocol - Palermo Protocol - Full scope- Full scope

Combating TIP BillCombating TIP Bill cont’dcont’d

OffenceOffence of Trafficking of Trafficking - - §5§5 Traffics or allows another to be traffickedTraffics or allows another to be trafficked No defense: - consent of child / parent No defense: - consent of child / parent - offence not completed- offence not completed (e.g. exploitation not realised)(e.g. exploitation not realised) PENALTY - Up to 20 years, fine or bothPENALTY - Up to 20 years, fine or both

Using services of VictimUsing services of Victim - - §§ 8 8 Benefits (financial / other) from services of V of Benefits (financial / other) from services of V of

TIP / uses services of V of TIPTIP / uses services of V of TIP PENALTY - Up to 2 years, fine or both PENALTY - Up to 2 years, fine or both

- Why? Address supply & demand!- Why? Address supply & demand!

Debt bondage (Debt bondage (§6)§6)Documentation issues (§7)Documentation issues (§7)

Combating TIP BillCombating TIP Bill cont’dcont’d

TRAFFICKING DEFINEDTRAFFICKING DEFINEDACTIONACTION

Recruit, sale, supply, procure, capture, remove, Recruit, sale, supply, procure, capture, remove, transport, transfer / receipt of persons /transport, transfer / receipt of persons / Illegal Illegal AdoptionAdoption

- within or across the borders of the Republic—- within or across the borders of the Republic—

MEANS…anyMEANS…any

- threat, force, intimidate, coercion- threat, force, intimidate, coercion

- abduction, fraud, deception- abduction, fraud, deception

- abuse of power / vulnerability /- abuse of power / vulnerability /

- giving / receiving benefits to gain consent of - giving / receiving benefits to gain consent of person in authority over anotherperson in authority over another

PURPOSEPURPOSE

exploitation…sexual, servitude, slavery, forced exploitation…sexual, servitude, slavery, forced marriages, forced labour, child labour, body parts marriages, forced labour, child labour, body parts

VULNERABILITY DEFINEDVULNERABILITY DEFINED

- Entering Republic illegally / without - Entering Republic illegally / without proper documentationproper documentation

- Pregnancy- Pregnancy

- Any disability of the person- Any disability of the person

- Addiction to any substance- Addiction to any substance- Reduced capacity to form Reduced capacity to form

judgements due to being a childjudgements due to being a child

(Child is person under 18)(Child is person under 18)

Combating TIP BillCombating TIP Bill cont’dcont’d

EXTRA-TERRITORIAL JURISDICTIONEXTRA-TERRITORIAL JURISDICTION -S 43-S 43

SA Court has jurisdiction whenSA Court has jurisdiction when::- - Commit Commit outsideoutside SA, but would be SA, but would be

offence in SAoffence in SA

- Regardless whether act constitutes - Regardless whether act constitutes offence at offence at place of commissionplace of commission & &

- - PersonPerson to be charged— to be charged—- = citizen / ordinarily resident in Republic - = citizen / ordinarily resident in Republic

-- was arrested in Republic was arrested in Republic

-- is a juristic person registered in Republicis a juristic person registered in Republic

Combating TIP BillCombating TIP Bill cont’dcont’d

INTERNATIONAL COOPERATIONINTERNATIONAL COOPERATION –s 42–s 42

Extradition & mutual Extradition & mutual assistanceassistance

Regional harmonization Regional harmonization

laws penaltieslaws penalties

Combating TIP BillCombating TIP Bill cont’dcont’d

CONCLUSIONCONCLUSION

SA has many laws SA has many laws applicable applicable TIP TIP

But not effective enough...But not effective enough... Better address TIP – Better address TIP – - implement TIP Bill- implement TIP Bill

In the dispute between

water

rock

...water always triumphs!

not because of...

strength

but because of... persistence!

Trafficking in persons

is a

challenging rock.

Let us unite LIKE water

and Conquer this rock!