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

2. ELEMENTS of HUMAN TRAFFICKING
ACTION
Any of the following A N D
MEANS
PURPOSE:
EXPLOITATION
Recruit
Deceive
Sexual
Transport
Force
Forced Labour
Transfer
Coercion
Forced marriage
Harbour
Fraud
Slavery
Receipt
Pay /
give benefits
Removal of body parts
Abduct
Illegal Adoption

3. TYPICAL TIP SCENARIO OK! ID Porn & sex for sale Forced labour BORDER
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 CURRENT SA POSITION PROPOSED LAW
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 freedom + security of person
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 ABDUCTION CRIMEN INIURIA
COMMON LAW CRIMES
ABDUCTION
EXTORTION
CRIMEN INIURIA
KIDNAPPING
ASSAULT
&
ASSAULT GBH
INDECENT ASSAULT

10. CURRENT SA POSITION SEXUAL OFFENCES ACT CHILD CARE ACT
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. 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

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 - Focus: only children
- 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 BILL 2006 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 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

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 Bill cont’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 Bill cont’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 of person in authority over another
PURPOSE
exploitation…sexual, servitude, slavery, forced marriages, forced labour, child labour, body parts

23. Combating TIP Bill cont’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 Bill cont’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 Bill cont’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
water rock

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!