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

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Presentation on theme: "THE SOUTH AFRICAN LEGAL REPONSE TO TRAFFICKING HUMAN TRAFFICKING ADV BEATRI KRUGER Faculty of Law University of the Free State, South"— Presentation transcript:

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2 THE SOUTH AFRICAN LEGAL REPONSE TO TRAFFICKING HUMAN TRAFFICKING ADV BEATRI KRUGER Faculty of Law University of the Free State, South IAWJ Conference, Johannesburg Powerpoint design: J VISSER

3 ACTION Any of the following ANDMEANS ANDPURPOSE:EXPLOITATION RecruitDeceiveSexual TransportForce Forced Labour TransferCoercion Forced marriage HarbourFraudSlavery Receipt Pay / give benefits Removal of body parts Abduct Illegal Adoption ELEMENTS of HUMAN TRAFFICKING

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

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6 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

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

8 SA LEGAL POSITION TIP International OBLIGATIONS National CURRENT SA POSITION Specific TIP law other laws Childrens Act: but not in force common law legislation PROPOSED LAW OBLIGATIONS CURRENT SA POSITION Sexual Offences Bill Combating of TIP Bill

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

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

11 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 & COMBATING of CORRUPT ACTIVITIES ACT RIOTOUS ASSEMBLIES ACT CURRENT SA POSITION

12 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

13 Challenges in Prosecuting… contd 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

14 CURRENT SA POSITION … contd SPECIFIC TIP LAW : Childrens Act Prohibits Trafficking in Children - No person (natural / juristic) may traffic - No person (natural / juristic) may traffic - Allow child to be trafficked - Allow child 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 both - Penalty - Up to 20 years, fine or both

15 Childrens Act : Defining Trafficking ACTION: ACTION: includes recruit, sale, supply, transport, transfer, harbour / receipt of children, - within or across the borders of the Republic - within or across the borders of the Republic - includes illegal adoption MEANS: MEANS: any means… includes threat, force, coercion, abduction, fraud, deception, 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 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: PURPOSE: exploitation…sexual, servitude, slavery, forced marriages, forced labour, child labour, body parts exploitation…sexual, servitude, slavery, forced marriages, forced labour, child labour, body parts

16 CHILDRENS ACT CHALLENGES - Not in force - Focus: only children - Provisional pending TIP Bill

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

18 SEXUAL OFFENCES BILL 2006 TRAFFICKING CRIME … for SEXUAL PURPOSES for SEXUAL PURPOSES A traffics B A traffics B without consent of B without consent of B = guilty of offence of TIP = guilty of offence of TIP for sexual purposes for sexual purposes

19 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; participating in trafficking; - incites, aids, advises, recruits, encourages or procures any other person to commit, contribute procures any other person to commit, contribute towards / participate in trafficking towards / participate in trafficking = guilty of offence

20 Sexual Offences Bill 2006 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, grooming or abuse of a sexual nature - include sexual offence / sexual act - committed in / outside Republic

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

22 Combating TIP Bill contd Offence of Trafficking - §5 Traffics or allows another to be trafficked Traffics 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 both 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 Benefits (financial / other) from services of V of TIP / 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 (§6) Documentation issues (§7)

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

24 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) Combating TIP Bill contd

25 EXTRA-TERRITORIAL JURISDICTION -S 43 SA Court has jurisdiction when : 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 Combating TIP Bill contd

26 INTERNATIONAL COOPERATION –s 42 Extradition & mutual assistance Extradition & mutual assistance Regional harmonization Regional harmonization laws penalties laws penalties Combating TIP Bill contd

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

28 In the dispute between water rock

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

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

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