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Trafficking of People

Taken is a 2008 blockbuster film about a former CIA operative who drops everything and jets across to Paris. Reason? To track down his teenage daughter and her best friend after the two girls were kidnapped before being auctioned for sexual slavery in the Middle East. It’s a pretty disturbing story; but, there again, it’s only a movie.

Well, actually it’s not. Human trafficking – mostly for sexual slavery and forced labour – is the third most lucrative illegal trade (after drugs and weapons) worldwide and is a massive problem. The research of one global authority, Walk Free Foundation, shows over 45 million people in modern slavery.1 And – guess what? – it’s already in a theatre near you. The estimated number in modern slavery in South Africa is 248,700 – of which 43% were subjected to commercial sex exploitation, as much as 8% were in drug production, and 11% were in the construction industries.2

The United States Trafficking in Persons Report 20143 records that:

South African is a source, transit and destination country for men, women and children subjected to forced labour and sex trafficking. South African citizens and foreign nationals are subjected to human trafficking within the country. South African children are subjected to trafficking mainly within the country, recruited from poor rural areas and brought to and moved between urban centres such as Johannesburg, Cape Town, Durban and Bloemfontein. Girls are subjected to sex trafficking and domestic servitude; boys are forced to work in street vending, food service, begging, criminal activities and agriculture.

In addition to South Africans, in 2013, the government identified victims from Russia, the Philippines, Taiwan, Thailand, Ghana, Somalia, Namibia, Zimbabwe, Zambia, and the United States. Officials acknowledged an increased presence of Chinese victims, but Thai women were the largest identified foreign victim group. Women and girls from China, Taiwan, Thailand, Cambodia, India, Russia, Ukraine, Moldova, Bulgaria, Brazil, the Democratic Republic of the Congo, the Republic of the Congo, Rwanda, Mozambique, Lesotho, Swaziland and Zimbabwe are recruited for legitimate work in South Africa, but are sometimes subsequently subjected to forced prostitution, domestic servitude, or forced labour in the service sector or taken to Europe for forced prostitution.

There are a number of international agreements in place designed to address this societal cancer. Of course, there are also several enshrined rights in the Constitution – to human dignity, freedom, security of the person, and so forth. South Africa has been a bit slow on the uptake in putting measures in place to give effect to our obligations in this regard, but we now have the Prevention and Combating of Trafficking of Persons Act 2013.4

The Act falls under the authority of the Minister of Justice and Correctional Services. There are several different forms of conduct which the Act criminalises.

A. Trafficking in persons

  1. It is a crime to traffick another person. This means that, for the purpose of exploitation:5
    • you deliver, recruit, transport, transfer, harbour, sell, exchange, lease or receive a person;
    • by means of any of the following, and whether aimed at the particular person, or an immediate family member, or any other person in close relationship with the victim:
      • a threat of harm;6
      • the threat or use of force, or other forms of coercion;7
      • the abuse of vulnerability;8
      • fraud;9
      • deception;10
      • abduction;11
      • kidnapping;12
      • the abuse of power;13
      • giving or receiving payments or benefits14 to obtain the consent of the person having control or authority over the victim;15 or
      • giving or receiving payments, compensation, rewards, benefits or any other advantage.16
  2. It is an offence to adopt a child for the purpose of his exploitation.17

  3. It is also a crime to conclude a forced marriage with another person for the purpose of his exploitation.18

B. Debt bondage

  1. It is a crime to engage in conduct that causes another person to agree to render personal services, or to enlist the personal services of someone under his control, as security for a debt (whether a past or future debt) and where:
    • the debt is excessive; or
    • the length and nature of those services are neither limited nor defined; or
    • the value of the services19 is not applied to reducing the debt.20

C. Documents relating to victims of trafficking

  1. If you do any of the following with regard to any actual (or purported) identification document, passport or other travel document of a victim of trafficking, in order to facilitate or promote trafficking in persons, you commit an offence:21
    • have it in your possession;
    • intentionally destroy it;
    • confiscate it;
    • hide it away (i.e. conceal it); or
    • tamper with it.

D. Using the services of victims of trafficking

  1. It is a crime to benefit (financially or otherwise) from the services of a victim of trafficking.22

  2. You also commit an offence if you use, or enable another person to use, the services of a victim of trafficking when you should have suspected that such person is a victim of trafficking.23

E. Conduct facilitating trafficking in persons

  1. If you transport a person knowing that he is a victim of trafficking (or even if, reasonably, you should have known) you commit an offence.24

  2. The following are all criminal offences:

    • to lease any premises25 for facilitating or promoting trafficking in persons;26
    • allow premises to be used to facilitate or promote trafficking in persons;27
    • allow premises to be used when, reasonably, you ought to have known or suspected that it will be used to facilitate or promote trafficking in persons;28
    • if, at any time after leasing the premises, you become aware that it is being used to facilitate or promote trafficking in persons but fail to report that knowledge to the police;29
    • if, at any time after leasing the premises, you ought to have known or suspected (reasonably speaking) that it is being used to facilitate or promote trafficking in persons but fail to report that knowledge to the police;30
    • to advertise, publish, print, broadcast, or distribute information (or cause any of this to happen) which information facilitates or promotes trafficking in persons by any means;31
    • to finance, control or organise the commission of an offence in terms of the Act.32

F. Electronic communications

  1. An electronic communications service provider (for example, Vodacom) commits a criminal offence if it does not take all reasonable steps to prevent the use of its service for the hosting of information that promotes or facilitates trafficking in persons.33

  2. As soon as such a provider becomes aware of any such information stored upon or transmitted over its system, it must take certain measures34 and commits an offence if it fails to do so.35

G. Reporting

  1. If you have reasonable grounds to suspect that any of the passengers in your vehicle36 is a victim of trafficking, you must immediately report it to the police, and commit an offence if you fail to do so.37

  2. Any person who knows (or ought to have known, or suspected) that a child is a victim of trafficking must immediately report it to a police official. It is a crime if you fail to do so.38

  3. This also applies to a child protection organisation which comes into contact with a child who is suspected of being a victim of trafficking.39

  4. Any person who knows (or ought to have known, or suspected) that an adult person who he comes into contact with during his duties is a victim of trafficking, he must immediately report it to the Police. It is a crime to fail to do so.40

  5. This also applies to an accredited organisation which comes into contact with an adult person who is suspected of being a victim of trafficking.41

H. Unauthorised access to and disclosure of information

  1. It is an offence to allow any unauthorised person to gain access to a victim of trafficking, or a suspected victim of trafficking, or to a child in the care of that victim, or even in the care of a suspected victim.42

  2. Except if required by the Act, or by a competent court to do so, it is a crime to disclose:

    • the identity of a victim of trafficking, or a suspected victim of trafficking;43
    • the identity of a child in the care of such a victim, or suspected victim;44
    • any information about (or which could lead to identifying) the place where a victim of trafficking (or suspected victim of trafficking) is accommodated or treated;45
    • any information about (or which could lead to identifying) the place where a child in the care of that victim or suspected victim is accommodated or treated;46
    • any information which could lead to the identification of a victim of trafficking (or suspected victim of trafficking);47
    • any information which could lead to the identification of a child in the care of that victim (or suspected victim);48
    • any information which undermines or compromises (or could undermine, or compromise) the investigation or prosecution of a case of trafficking.49

I. Contributory involvement

  1. It is a criminal offence to do any of the following in relation to conduct which is already prohibited by the Act:
    • to attempt at participating in the conduct;50
    • to incite, instigate, command, direct, assist, promote, advise, recruit, encourage or procure any other person to commit the conduct;51 or
    • to conspire with any other person to commit the conduct.52

J. Competent verdicts

This is when the evidence on a particular charge does not prove that offence, but establishes the commission of another crime. Then, in certain situations, the person accused can be convicted of that alternative offence. There are several competent verdicts listed in the Criminal Procedure Act 1977.53 Relevantly, they refer to contraventions of section 4 and section 10 of the Prevention and Combatting of Trafficking in Persons Act. The competent verdicts include rape, assault, sexual assault, compelled self-sexual assault, and various other offences stipulated in the same Act.

  1. The Global Slavery Index 2016 www.globalslaveryindex.org

  2. Ibid. 

  3. www.state.gov/documents/organization/226848.pdf 

  4. As amended; the latest amendment was brought about by Act 24 of 2015. 

  5. In whatever form or manner. 

  6. Section 4(1)(a). 

  7. Section 4(1)(b). 

  8. Section 4(1)(c). 

  9. Section 4(1)(d). 

  10. Section 4(1)(e). 

  11. Section 4(1)(f). 

  12. Section 4(1)(g). 

  13. Section 4(1)(h). 

  14. Whether directly or indirectly. 

  15. Section 4(1)(i). 

  16. Section 4(1)(j). 

  17. Section 4(2)(a). 

  18. Section 4(2)(b). 

  19. This value is as reasonably assessed. 

  20. Section 5 read with the definition of ‘debt bondage’ in section 1. 

  21. Section 6. 

  22. Section 7. 

  23. Section 7. 

  24. Section 9(1). 

  25. That is: any room, house, building or establishment. 

  26. Section 8(1)(a). 

  27. Section 8(1)(a). 

  28. Section 8(1)(a). 

  29. Section 8(1)(b). 

  30. Section 8(1)(b). 

  31. Section 8(1)(c). 

  32. Section 8(1)(d). 

  33. Section 8(2)(a) read with section 8(3). 

  34. In terms of section 8(2)(b) of the Act, the following must be done, without any delay: (a) report to the police the electronic communications identity number from which those communications originated; and any other particulars which can be used to identify the source of those communications; (b) take such steps as are necessary to preserve evidence for purposes of investigation and prosecution; and (c) take such steps as are necessary to prevent continued access to those electronic communications. 

  35. Section 8(2)(b) read with section 8(3). 

  36. The Act uses the term ‘carrier’, which is defined to include a person who is the owner or employee of the owner, an agent, an operator, a lessor, a driver, a charterer, or a master, of any means of transport. 

  37. Section 9(2). 

  38. Section 18(1)(a). 

  39. Section 18(1)(b). 

  40. Section 19(1)(a). 

  41. Section 19(1)(b). 

  42. Section 23(a). 

  43. Section 23(b)(i). 

  44. Section 23(b)(i). 

  45. Section 23(b)(ii). 

  46. Section 23(b)(ii). 

  47. Section 23(b)(iii). 

  48. Section 23(b)(iii). 

  49. Section 23(b)(iv). 

  50. Section 10(1)(a). 

  51. Section 10(1)(b). 

  52. Section 10(1)(c). 

  53. Section 2614(2).