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THE SOUTH AFRICAN LEGAL REPONSE TO HUMAN TRAFFICKING

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. ELEMENTS of HUMAN TRAFFICKING.

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THE SOUTH AFRICAN LEGAL REPONSE TO HUMAN TRAFFICKING

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  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

  4. 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

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

  6. 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

  7. 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

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

  9. 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

  10. 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

  11. 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

  12. 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

  13. 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

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

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

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

  17. 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

  18. 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

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

  20. 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)

  21. 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

  22. 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)

  23. 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

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

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

  26. In the dispute between waterrock

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

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

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