THE SOUTH AFRICAN LEGAL REPONSE TO HUMAN TRAFFICKING

1. THE SOUTH AFRICAN LEGAL REPONSE TO HUMAN TRAFFICKING ADV BEATRI KRUGER Faculty of Law University of the Free State, South Africa Krugerh.RD@UFS.ac.za IAWJ Conference, Johannesburg 18-10-07 Powerpoint design: J VISSER 12-10-07

2. ELEMENTSof HUMAN TRAFFICKING

3. TYPICAL TIP SCENARIO OK! ID Trafficker Victim ID Parents Porn & sex for sale Forced labour BORDER In / across Forced marriage Transport Body parts Illegal adoption

5. POSITION 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

6. POSITION IN SA • SA = country of  origin  transit  destination • TIP Report 2007: - SA rated tier 2 special watch (since 2005) - why?

7. SA LEGAL POSITION  TIP International OBLIGATIONS National CURRENT SA POSITION Specific TIP law other laws Children’s Act: but not in force common law legislation OBLIGATIONS CURRENT SA POSITION Sexual Offences Bill PROPOSED LAW Combating of TIP Bill

8. Obligations to address TIP INTERNATIONAL UN CONVENTIONS  PALERMO PROTOCOL NATIONAL freedom + security of person dignity child rights no abuse no exploitative labour basic nutrition + shelter health care social services family care CONSTITUTION forced labour slavery + servitude freedom of movement

9. CURRENT SA POSITION MURDER RAPE FRAUD SLAVERY COMMON LAW CRIMES ABDUCTION EXTORTION CRIMEN INIURIA KIDNAPPING ASSAULT & ASSAULT GBH INDECENT ASSAULT

10. CURRENT SA POSITION PREVENTION & COMBATING of CORRUPT ACTIVITIES ACT SEXUAL OFFENCES ACT CHILD CARE ACT PREVENTION OF ORGANIZED CRIMES ACT APPLICABLE LEGISLATION INTIMIDATION ACT FILMS & PUBLICATIONS ACT IMMIGRATION ACT BASIC CONDITIONS OF EMPLOYMENT ACT RIOTOUS ASSEMBLIES ACT

11. 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

12. Challengesin 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

13. CURRENT SA POSITION…cont’d SPECIFIC TIP LAW : Children’s Act Prohibits Trafficking in Children - No person (natural / juristic) may traffic - Allow child to be trafficked - No defense: - consent of child / parent - offence not completed (e.g. exploitation not realised) - Penalty - Up to 20 years, fine or both

14. Children’s Act :Defining Trafficking • ACTION: includes recruit,sale, supply,transport, transfer, harbour / receipt of children, - within or across the borders of the Republic - includes illegal adoption • MEANS: any means… includes threat, force, coercion, abduction, fraud, deception, abuse of power / giving or receiving of benefits to achieve the consent of person in control of child / due to a position of vulnerability • PURPOSE: exploitation…sexual, servitude, slavery, forced marriages, forced labour, child labour, body parts

15. CHILDREN’S ACT • CHALLENGES - Not in force - Focus: only children - Provisional pending TIP Bill

16. PROPOSED SA LEGISLATION • Sexual Offences Bill 2006 - Focus: only sex trafficking - Provisional • Combating of TIP Bill - Full focus

17. SEXUAL OFFENCES BILL2006 TRAFFICKING CRIME … for SEXUAL PURPOSES • A traffics B • without consent of B • = guilty of offence of TIP • for sexual purposes

18. Sexual Offences Bill 2006 INVOLVEMENT  TIP for sex purpose A person who - orders, organises,supervises, controls trafficking; -performs any act aimed at committing, promoting, participating in trafficking; - incites, aids, advises, recruits, encourages or procures any other person to commit, contribute towards / participate in trafficking = guilty of offence

19. Sexual Offences Bill2006 TRAFFICKING DEFINED: ACTION: supply, recruit,procure, capture, remove,transport, harbour, sale, dispose /receiving of a person - within or across the borders of the Republic MEANS: - threat / force/intimidation/ other coercion - abduction - fraud /deception /false pretences - abuse of power / position of vulnerability - giving / receiving of benefits PURPOSE: exploitation,groomingor abuse of a sexual nature - include sexual offence / sexual act - committed in / outside Republic

20. Combating TIP Bill Discussion Paper – 2006 • SA Law Commission: Recommend Bill address TIP • Bill = specific TIP law - Fulfil international obligations • - Palermo Protocol • - Full scope

21. Combating TIP Billcont’d Offence of Trafficking - §5 • Traffics or allows another to be trafficked • No defense: - consent of child / parent - offence not completed (e.g. exploitation not realised) • PENALTY - Up to 20 years, fine or both Using services of Victim - § 8 • Benefits (financial / other) from services of V of TIP / uses services of V of TIP • PENALTY - Up to 2 years, fine or both - Why? Address supply & demand! Debt bondage (§6) Documentation issues (§7)

22. Combating TIP Billcont’d TRAFFICKING DEFINED ACTION Recruit, sale, supply, procure, capture, remove, transport, transfer / receipt of persons / Illegal Adoption - within or across the borders of the Republic— MEANS…any • - threat, force, intimidate, coercion • - abduction, fraud, deception • - abuse of power / vulnerability / • - giving / receiving benefits to gain consent ofperson in authority over another PURPOSE exploitation…sexual, servitude, slavery, forced marriages, forced labour, child labour, body parts

23. Combating TIP Billcont’d VULNERABILITY DEFINED • - Entering Republic illegally / without proper documentation • - Pregnancy • - Any disability of the person • - Addiction to any substance • Reduced capacity to form judgements due to being a child • (Child is person under 18)

24. Combating TIP Billcont’d EXTRA-TERRITORIAL JURISDICTION-S 43 SA Court has jurisdiction when: - Commit outside SA, but would be offence in SA - Regardless whether act constitutes offence at place of commission & - Person to be charged— - = citizen / ordinarily resident in Republic - was arrested in Republic - is a juristic person registered in Republic

25. Combating TIP Billcont’d INTERNATIONAL COOPERATION–s 42 • Extradition & mutual assistance • Regional harmonization laws penalties

26. CONCLUSION • SA has many laws applicable  TIP • But not effective enough... • Better address TIP – - implement TIP Bill

27. In the dispute between waterrock

29. ...water always triumphs! not because of... strength but because of... persistence!

31. Trafficking in persons is a challenging rock. Let us unite LIKE water and Conquer this rock!