JGJPP - The Effect of South Africa’s Anti-Human Trafficking Legislation on the International Trafficking of Children
The South African Bill of Rights[1]is foundational[2]in South African democracy, and clearly states, “No one may be subjected to slavery, servitude or forced labour.”[3] The Bill of Rights also includes a special provision for children that includes, “Every child has the right . . . (f) not to be required or permitted to perform work or provide services that — (i) are inappropriate for a person of that child's age; or (ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development.”[4]The South African Constitution and Bill of Rights were adopted in 1996, thus making South Africa a relatively young democracy. Therefore, many of South Africa’s challenges are found in the tension between traditional customs and new law.
In the United States Department of State’s 2013 Trafficking in Persons Report, South Africa is listed as a Tier 2[5]country, and thus does not fully comply with the minimum standards for the elimination of trafficking.[6]However, in July 2013, South Africa’s President signed into law the 2013 Prevention and Combating of Trafficking in Persons Act (the Act).[7]Before the Act[8], “South Africa [did] not have a legal definition of human trafficking, either in the common law or in statute.”[9]
“The absence of legislation specific to human trafficking limit[ed] prosecutors to dealing only with the perpetrator directly linked to the offences resulting from the trafficking of the victim, to the exclusion of the perpetrators behind the scenes, as this is often an organised crime activity.”[10]Furthermore, prosecutors had to rely on statutory[11] and common law[12]offenses, “which [did] not individually attract necessarily as heavy sentences as a specific trafficking in persons offence . . . impose[d].”[13]It is important to note that before the Act was implemented, the South African legislature did amend acts to include some coverage of human trafficking issues,[14]and created a ‘strategy’ to approach the issue.[15]
A. Prosecution Examples of Traffickers
Thus far, the government’s prosecutions have been “low-level cases,” and not “larger, international syndicates involving Nigerian, Russian, Bulgarian, Chinese, and Thai traffickers who dominate the sex trade in several South African cities.”[16] There have only been three trafficking convictions in the country’s history, one of which was overturned on appeal.[17]“The March 2010 Thai sex trafficking convictions were overturned on appeal because the court translator who was fearful for her safety had covered her face during the proceedings.”[18]
Before the Act, trafficking prosecutions were often brought under the Sexual Offenses Act (SOA) or the Basic Conditions of Employment Act of 1997 (BCEA) which prohibits forced labor.[19]The Prevention of Organized Crime Act of 1998 was also used in combination with the SOA to add additional charges, “including money laundering, racketeering, and criminal gang activity[,]” and harsher penalties.[20]
The first child trafficking conviction occurred in 2008 in the Gauteng province.[21] Aldina dos Santos “was charged under the Child Care Act for exposing a child to abuse,”[22] and was sentenced to life in prison in 2011.[23]Dos Santos trafficked three girls between the ages of fourteen- and seventeen-years-old from Mozambique, and ran a brothel in Moreleta Park where the girls were used as sex slaves.[24]
In 2012, the Grahamstown High Court convicted a sex trafficker and sentenced him to ten years imprisonment for “procuring an 11-year old girl for an Eastern Cape man” [25] This case is another example of a statutory conviction, convicting the defendant of conspiracy under the Sexual Offenses Act.[26] The prosecution of a Mozambican woman and a South African businessman for the sex trafficking of five Mozambican girls was initiated in February 2013 in the Sabie Magistrate's Court.[27]
With the Act in place, there should be more successful prosecutions of traffickers in the future. In addition to clearly making trafficking in persons a criminal offense, the Act also created offenses such as “debt bondage; the possession, destruction, concealment of and tampering with travel documents; and using the services of victims of trafficking . . . .”[28] Notably, the Act outlines a procedure to avoid the prosecution of a trafficking victim for an offense “committed as a direct result of the person’s position as a victim of trafficking.”[29]The Act provides a legal framework to prevent trafficking, prosecute traffickers, and protect trafficking victims.
B. Challenges in Law Enforcement
South Africa’s government faces the obstacles of collusion and a lack of intervention by the law enforcement sector.
Research studies show police collusion “range from receiving money from the gang leader to having sex with the children . . . .”[30]According to Niole Fick, a Sex Worker Education and Advocacy Taskforce (SWEAT) researcher, “[o]ur experience indicates that the highest levels of violence against sex workers come from the police and law enforcement sectors.”[31]Furthermore, SWEAT reports that “[t]hirty percent of sex workers who have made statements to SWEAT have been forced to have sex with police officers.”[32]
There have also been reports of police involvement in child trafficking.[33] In 2010, Media 24 uncovered a trafficking ring that trafficked young girls between Mozambique and South Africa.[34] The girls were easily smuggled across the Lebombo border by “'friendly policemen.'”[35]Project Tsireledzani[36]indicates that the Lebombo border is not the only ‘friendly’ border, as children without proper documentation are allowed to cross the Bloemfontein/Maseru border with Lesotho if the child is accompanied by an adult.[37]It is also common for children to be brought into South Africa without documentation after “an adult . . . [came] into South Africa and register[ed] several children under his guardianship” with the help of collusion within government agencies.[38]
Specific to the trafficking of children, “[a] police official to whom a report has been made . . .” is mandated by the Act to “deal with that child in terms of section 110(4)[39]of the Children’s Act . . . .”[40]Naturally, whether the police official fulfills his or her Act-mandated duties affects the prosecution of traffickers, and also the ability of supporting agencies to fulfill their duties. For example, the provincial department of social development is mandated to, “without delay, in the prescribed manner, assess whether the child . . . is a victim of trafficking, after taking into account the prescribed information obtained from the South African Police Service.”[41]Police intervention is thus crucial in the ability of supporting agencies to fulfill their duties. Therefore, effectiveness of the anti-human trafficking laws depends on the functionality of law enforcement authorities. Collusion within law enforcement authorities is impeding South Africa’s progress in providing children adequate protection from traffickers.
[1]S. Afr. Const., 1996, ch. 2.
[2] “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.” Id. § 7(1).
[3] Id. § 13.
[4] Id.§ 28.
[5] Tier 2 countries are “[c]ountries whose governments do not fully comply with the TVPA’s [Trafficking Victims Protection Act] minimum standards, but are making significant efforts to bring themselves into compliance with those standards.” Tier Placements, U.S. Dep’t of State,http://www.state.gov/j/tip/rls/tiprpt/2013/210548.htm (last visited Nov. 11, 2014).
[6] The Department of State “evaluates whether the government[s] fully compl[y] with the TVPA’s minimum standards for the elimination of trafficking.” The Department also “considers whether their governments [have] made significant efforts to bring themselves into compliance.” Trafficking in Persons Interim Assessment, U.S. Dep’t of State(Feb. 20, 2014), http://www.state.gov/j/tip/rls/reports/2014/221821.htm.
[7] Prevention and Combating of Trafficking in Persons Act 7 of 2013 (S. Afr.), available at http://www.justice.gov.za/legislation/acts/2013-007.pdf (last visited Nov. 11, 2014).
[8] “Technically, human trafficking in South Africa is not illegal because SA does not currently have a legal definition of human trafficking. . . . This does not mean that the traffickers cannot be prosecuted . . . . prosecutors . . . apply the existing legal framework. . . .” Frequently asked Questions, tsireledzani, http://www.tsireledzani.gov.za/Content.aspx?id=94 (last visited Sept. 5, 2014).
[9]Human Trafficking Strategy, S. Afr. Gov’t Online, http://www.gov.za/aboutgovt/programmes/humantrafficking/strategy.htm (last visited Nov. 11, 2014) [hereinafter Human Trafficking Strategy]. The Act defines “[t]rafficking in persons” as
4. (1) 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) a threat of harm; (b) the threat or use of force or other forms of coercion; (c) the abuse of vulnerability; (d) fraud; (e) deception; (f) abduction; (g) kidnapping; (h) the abuse of power; (i) the direct or indirect giving or receiving of payments or benefits to obtain the consent of a person having control or authority over another person; or (j) the direct or indirect giving or receiving of payments, compensation, rewards, benefits or any other advantage, aimed at either the person or an immediate family member of that person or any other person in close relationship to that person, for the purpose of any form or manner of exploitation, is guilty of the offence of trafficking in persons.
Prevention and Combating of Trafficking in Persons Act 7 of 2013 § 4(1) (S. Afr.).
[10] Human Trafficking Strategy, supra note 9.
[11] "Statutory offences are provided for in the Sexual Offences Act, the Riotous Assemblies Act, the Immigration Act, the Basic Conditions of Employment Act, the Intimidation Act, the Domestic Violence Act and the Prevention of Organised Crime Act." S. Afr. Law Reform Comm’n: Project 131 Trafficking in Persons 12 (Aug. 2008) (footnotes omitted).
[12] Under the common law, a person can be charged with kidnapping, common assault, assault with intent to cause grievous bodily harm, attempted murder and murder, extortion, and slavery. Id. at 12–13.
[13] DN Swart, Problems Surrounding the Combating of Women and Child Trafficking in Southern and South Africa, 12(1) Child Abuse Res.: S. Afr. J. 26, 26 (2011).
[14] These additions include: Chapter 18 of the Children's Act [Children's Act 38 of 2005 §§ 281–291]; Section 50(A) of the Child Care Act [Child Care Act 74 of 1983 § 50(A) (S. Afr.)], and Chapter 5 of the Criminal Law (Sexual Offences) Amendment Bill [Criminal Law (Sexual Offences) Amendment Bill, 2003, Bill 50-2003]. U.N.E.S.C.O., Policy PaperNo. 14.5(E): Human Trafficking in South Africa: Root Causes and Recommendations, at 45–48, U.N.E.S.C.O. Doc. SHS/CCT/2007/PI/H/6, (2007).
[15] The government created a “Human Trafficking Desk within the Organised Crime Unit at the South African Police Service (SAPS).” Human Trafficking Strategy, supranote 9. Also, “[t]he presidential mandate of the SOCA [Sexual Offences and Community Affairs] Unit is to deal efficiently and effectively with sexual offences,” and as such, SOCA has been tasked with the “[e]stablishment of an inter-sectoral Task Team to commence a process of coordination and refinement of activities towards the development of a multi-sectoral and comprehensive strategy.” Id. The following departments and agencies comprise the Task Team: SAPS (the Human Trafficking Desk, Organised Crime Unit; Ports of Entry Policing); Department of Justice & Constitutional Development (Legislative Directorate); Department of Home Affairs (International Affairs); International Organisation for Migration; Department of Social Development; Department of Labour; Molo Songololo; United Nations Office on Drugs and Crime. “The Task Team identified six pillars of a national strategy to effectively address trafficking in persons, as an instance of organised crime: Information, Capacity-Building & Development, Victim Assistance & Integration, Policy & Legislation Development, Liaison & Consultation as well as Monitoring & Evaluation.” Id.
[16] U.S. Dep’t of State, Trafficking in Persons Report,335 (2013) [hereinafter Trafficking in Persons Report], available athttp://www.state.gov/j/tip/rls/tiprpt/2013/index.htm (last visited Nov. 30, 2014).
[17] Id.at 334–35.
[18] Id. at 335.
[19] See id. at 334.
[20] Id.
[21] Stop Sex Trafficking of Children & Young People, Ecpat,http://www.ecpat.net/sites/default/files/Factsheet_South_Africa.pdf (last visited Nov. 30, 2014). Moreleta Park is located in the Gauteng province.
[22] Id.
[23] Human Trafficker Gets Life Sentence, News24(July 20, 2011, 2:29 PM), http://www.news24.com/SouthAfrica/News/Human-trafficker-gets-life-sentence-20110720.
[24] Id.
[25] Trafficking in Persons Report, supra note 16, at 335.
[26] Id.
[27] Id.
[28] Anti-Trafficking Bill Signed into Law in South Africa, Int'l Org. for Migration (Aug. 6, 2013), http://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2013/pbn-listing/anti-trafficking-bill-signed-int.html.
[29] Prevention and Combating of Trafficking in Persons Act 7 of 2013 § 22(1) (S. Afr.), available at www.justice.gov.za/legislation/acts/2013-007.pdf (last visited Nov. 11, 2014).
[30] Molo Songololo, The Trafficking of Children for Purposes of Sexual Exploitation – South Africa 59 (2000), available at http://issuu.com/molosongololo/docs/the-trafficking-of-children-for-the-purpose-of-sex?e=2837260/2661184.
[31] Swart, supra note 13, at 31.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] “[A] research project commissioned by the National Prosecuting Authority of South
Africa and by the Human Sciences Research Council of South Africa on the dimensions of
human trafficking in Southern Africa.” Id.
[37] Id. at 32.
[38] Id.
[39] A police official to whom a report has been made . . . or who becomes aware of a child in need of care and protection must—(a) ensure the safety and well-being of the child concerned if the child’s safety or well-being is at risk; and (b) within 24 hours notify the provincial department of social development or a designated child protection organisation of the report and any steps that have been taken with regard to the child.
Children's Amendment Act 41 of 2007 § 110(4) (S. Afr), available at http://web.up.ac.za/sitefile/43ChildrenAmendment41.pdf (last visited Sept. 12, 2014).
[40] Prevention and Combating of Trafficking in Persons Act 7 of 2013 § 18(4)(b) (S. Afr.), available at www.justice.gov.za/legislation/acts/2013-007.pdf (last visited Sept. 12, 2014).
[41] Id. § 18(6).