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!