concerning its investigation into trafficking in persons (project 131)
5 May 2006
The South African Law Reform Commission hereby releases its discussion paper
111 on trafficking in persons for general information and comment. The
discussion paper sets out the Commissionâs preliminary recommendations for law
reform regarding trafficking in persons. The legislative proposals can be
summarised as follows:
A) Offences
The proposed Bill criminalises the act of trafficking in persons. In
addition to this, the proposed Bill criminalises the following acts: debt
bondage; the destruction, confiscation, possession and concealment of
documents; using the services of victims of trafficking; and conduct
facilitating trafficking in persons.
B) Protection of victims of trafficking
The proposed Bill lists several guiding principles which must be considered
when deciding the question as to whether a person is a victim of trafficking.
This will facilitate the identification of victims of trafficking. Apart from
dealing with the trauma of being trafficked, victims of trafficking are faced
with arrest and prosecution for offences committed as a direct result of their
situation as victims of trafficking. In South Africa, victims of trafficking
may be prosecuted for prostitution, even though they were forced into
prostitution by their traffickers.
Victims of trafficking may also be prosecuted for illegal entry in terms of
the Immigration Act 13 of 2002. The proposed Bill therefore provides that the
decision as to whether criminal proceedings should be instituted against a
victim of trafficking for an offence committed as a direct result of his or her
situation as a victim of trafficking should rest with the National Director of
Public Prosecutions. Foreign victims of trafficking are provided with a
non-renewable suspension of their deportation period. This will allow such
victims to come to terms with what has happened to them and to make informed
decisions as to whether they want to assist in the investigation of and the
prosecution of their traffickers. The decision whether to grant such a period
should rest with the Director-General of the Department of Home Affairs. If
victims of trafficking decide to assist with the investigation of and
prosecution of traffickers, they should be provided with a temporary residence
permit.
The Commission has taken cognisance of the fact that some victims of
trafficking may never be able to return to their countries of origin or the
countries from where they have been trafficked because they may be harmed,
killed or trafficked again by their traffickers or the associates of their
traffickers. In this regard the following options are proposed:
Option 1
In terms of this option section 3 of the Refugees Act should be amended to
provide that a person qualifies for refugee status if that person is a victim
of trafficking and proves to the satisfaction of the Director-General of the
Department of Home Affairs that he or she may be harmed, killed or trafficked
again if returned to his or her country of origin or the country from where he
or she has been trafficked. Such victims would be able to apply for a permanent
residence permit in terms of section 27(d) of the Immigration Act which states
that the Director-General of the Department of Home Affairs may issue a
permanent residence permit to a foreigner of good and sound character who is a
refugee referred to in section 27(c) of the Refugees Act. Section 27 (c) of the
Refugees Act provides that a refugee is entitled to apply for an immigration
permit after five years continuous residence in the country from the date on
which he or she was granted asylum, if the Standing Committee certifies that he
or she will remain a refugee indefinitely.
Option 2
In terms of this option a victim of trafficking should be entitled to apply
for a permanent residence permit in terms of the Immigration Act 13 of 2002,
after five years continuous residence in the country from the date on which he
or she was granted a temporary residence permit. This should, however, be on
the condition that the victim of trafficking proves to the satisfaction of the
Director-General of the Department of Home Affairs that he or she may be
harmed, killed or trafficked again if returned to his or her country of origin
or the country from where he or she has been trafficked.
Option 3
Instead of providing victims of trafficking with some kind of permanent
residency status, this option proposes that the Director-General of the
Department of Home Affairs may, on humanitarian grounds, extend a temporary
residence permit granted to a victim of trafficking.
The Director-Generalâs decision should further be guided by the likelihood
that the person may be harmed, killed or trafficked again.
With regard to the provision of services to victims of trafficking, the
following options are proposed:
Option 1
The Department of Social Development should have the responsibility to
establish centres for adult victims of trafficking.
Option 2
The Director-General of the Department of Social Development should accredit
organisations to provide accommodation to adult victims of trafficking.
A centre for adult victims of trafficking or an accredited organisation as
proposed above must offer a programme suited for the needs of victims of
trafficking. Such a programme should be aimed at the provision of counselling
and rehabilitation services to victims as well as the reintegration of victims
into their families and communities. It is further important that the safety of
adult victims of trafficking should be ensured if they are at risk of
retaliation by their traffickers.
In respect of the provision of compensation to victims of trafficking, the
proposed Bill provides that a court may, in addition to any punishment which it
may impose in respect of any offence provided for in the Bill, order a person
convicted of such offence to pay appropriate compensation to any victim of the
offence.
Foreign victims of trafficking are often deported. This is because they are
not identified as victims, but labelled as illegal immigrants. Furthermore,
victims of trafficking are being returned to their countries of origin without
an investigation into their circumstances in order to establish whether
protective systems are in place in their countries so as to ensure that they
are not returned to the same circumstances that made them vulnerable to being
trafficked in the first instance. It is therefore proposed that the summary
deportation of victims of trafficking be prohibited prior to an investigation
being done into their circumstances. Victims of trafficking should therefore be
repatriated in terms of a process that takes cognisance of their safety not
only during the repatriation process, but also in the countries to which they
are to be returned as well as the possibility that they might be harmed, killed
or trafficked again. With regard to child victims of trafficking, due
consideration should be given to the availability and suitability of care
arrangements in the countries to which they are to be returned.
C) Prevention of trafficking in persons
The proposed Bill provides that public awareness programmes or other
measures should be established in order to:
(a) inform and educate persons at risk of becoming victims of trafficking on
issues relating to trafficking in persons
(b) inform and educate victims of trafficking on their rights as victims, legal
or other measures in place to ensure their safety, recovery and repatriation,
organisations, institutions or law enforcement agencies that may be approached
for assistance or information and
(c) discourage the demand that fosters the exploitation of victims of
trafficking, especially women and children.
Furthermore, the proposed public awareness programmes or other measures must
include appropriate measures aimed at reaching rural communities and should be
reviewed biennially in order to determine their effectiveness.
Conclusion
In an effort to consult all interested parties, the Commission will host a
series of workshops during June 2006. The workshops are scheduled to be held as
follows: 6 June (Pretoria), 13 June (Nelspruit), 20 June (Cape Town), 22 June
(Eastern Cape), 27 June (Durban) and 29 June (Bloemfontein).
Persons interested in attending should contact the Commission.
Contact person: Ms L Stuurman
Tel: (012) 392 9567
The discussion paper is obtainable free of charge from the Commission upon
request.
Contact person: Mr J Kabini
Tel: (012) 392 9580
The discussion paper has been published on the Commissionâs website
(http//www.doj.gov.za)
The Commission invites comments and suggestions on the discussion paper.
Comments or suggestions should reach the Commission by 30 June 2006 at the
following address:
The Secretary
South African Law Reform Commission
Private Bag X668
Pretoria
0001
Tel: (012) 392 9567
Fax: (012) 320 0936
E-mail: Lstuurman@justice.gov.za
The South African Law Reform Commission was established by the South African
Law Reform Commission Act 19 of 1973. It is an advisory body whose aim is the
renewal and improvement of the law of South Africa on a continuous basis.
Enquiries:
Ms L Stuurman:
Tel: (012) 392 9567
Fax: (012) 320 0936
E-mail: Lstuurman@justice.gov.za
Issued by: South African Law Reform Commission
5 May 2006
Source: South African Law Reform Commission (http://www.doj.gov.za)
