NPA PRESENTATION TO PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT 24 February 2011

BACKGROUND At the meeting held on 17 November 2010, NPA requested to review provisions of the Bill with an impact on prosecutions and provide submissions The NPA Roundtable was held in Cape Town from 6 to 7 December 2010 to review and discuss content of the Bill Prosecutors who dealt with human trafficking cases and the SALRC participated in the discussions Inputs from the Roundtable are included in the presentation

CHAPTER 1 – DEFINITIONS AND OBJECTS OF THE ACT

Sec 1 - DEFINITIONS Abuse of Vulnerability (f) ‘Socio-economic circumstances’ The Collins Concise Dictionary defines Socioeconomic as: ‘relating to, or involving both economic and social factors’ Propose that the term be alternated with ‘Social and or economic’ and this will include cultural practices even in the absence of economic factors ‘Debt bondage’ This is a separate offence from trafficking in persons and should be removed from that definition Recommend that it should remain in the definition of ‘exploitation’ as a person can be kept in debt bondage for exploitative purposes

Sec 1 – DEFINITIONS cont. ‘removal of body parts’ ‘sole purpose’: remove ‘sole’ in order not to encounter difficulties in proving the purpose for the removal of the organs

Sec 1 – DEFINITIONS cont. Trafficking ‘sale’ and ‘delivery’ are different actions and should be left as they are ( a sale can be concluded without delivery and delivery can occur without a sale, e.g. to obtain a favour) ‘lease’: A human being cannot be leased because s/he is not property. Recommend that it be removed ‘disposal’ is not covered by delivery’ due to the fact that ‘disposal’ translates to an item/person being no longer of use and being disposed of Recommend that both ‘disposal’ and ‘delivery’ should remain

Sec 1 - DEFINITIONS cont. Re: new formulation proposed with the addition to (a): ‘a threat of harm, to a person trafficked or an immediate family member of the person trafficked’. If this is to be implemented, the underlined will be excluded from sub (b) to sub (k). Therefore, the proposed amendment is not supported Recommend that ‘false pretences’ be removed as already covered under ‘fraud’ (j) and (k) to be retained as they focus on different aspects and are also similar to the Kenyan definition In agreement that ‘sexual grooming or abuse of such person, including the commission of any sexual offence or any offence of a sexual nature in any other law against such person or performing any sexual act with such person’ should be removed in order not to over-emphasise trafficking for sexual purposes The last part of the definition should read: ‘…for the purpose of any form or manner of exploitation of such person…’

Sec 2 - OBJECTS (f) remove ‘draft’ from the national policy framework in line with s 39 which does not make reference to a draft

CHAPTER 2 – PREVENTION AND COMBATING OF TIP

Sec 3 – PUBLIC AWARENESS Should not be dealt with in legislation but ideally in the national policy framework

CHAPTER 3 – OFFENCES, PENALTIES & EXTRA-TERRITORIAL JURISDICTION

Elements of the offence Main charge of trafficking in persons Unlawfulness Intention Consent irrelevant: Sec 4(3) (a) and (b) Formulation of Charge: Contravention of Sec 4(1)/(2) read with sec (1) and Sec 4(3) (a) and (b) by means of (list according to facts of the case) Complainant (alleged victim of offence)

Sec 4 (1) and sec 4 (2) - Offences The intention of the legislator was clearly to differentiate between sec 4 (1) and sec 4 (2), hence the exclusion of ‘imprisonment for life’ Sec 4 (1) is dealt with under Part 1 Schedule 2 because of the specific reference to ‘imprisonment for life’ (sec 51 (1)) Sec 4 (2) will be dealt with under other sections, e.g. sec 51 (2)

Sec 8 – Conduct facilitating trafficking in persons Recommend that sec (1)(a) remains (intentionally leases) Recommend that new (1) (b) should be phrased to cater for offenders who "subsequent to the leasing or sub-leasing of property mentioned in (a) above becomes aware” Current (1)(b) will become (c) in new numbering (2) is directed at Internet Service Providers (ISPs) who are not hosting the sites themselves and therefore lesser sentence is justified because of failure to comply with regulations

Sec 9 – Liability of Carriers In reference to Adjustment of Fines Act 101 of 1991 as read with sec 92 (1)(b) of Magistrates’ Act 32 of 1944 Recommend the increase of the fine and prison sentence: R5 million vis-à-vis 10 years due to severity of the offence (guided by POCA) Internal carriers excluded and propose that section 9 be amended to include internal carriers In cases of sufficient evidence re: elements of s4(2) (a), carriers can be charged accordingly

Sec 10 - Extra-territorial jurisdiction ss(6): NDPP must retain the authorisation function and not the DPPs This is in line with s61(5) of Act 32 of 2007 and other legislation which requires authorisation by the NDPP

Sec 11- Factors to be considered in sentencing In agreement that ‘Nature of the relationship between the victim and the perpetrator’ should be added

S16 – Criminal prosecution against victim of trafficking prohibited Remove ‘prohibited’ in the heading as the section is prescribing the possible prosecution of victims of trafficking Recommend that current sec 16 (2) becomes sec 16 (1) Sec 71 (5) of Act 32 of 2007 to be incorporated as sec 16 (2): ‘A person who has been trafficked is not liable to stand trial for any criminal offence, including any migration-related offence, which was committed as a direct result of being trafficked’

CHAPTER 7 - COMPENSATION Sec 27 Compensation to victim of trafficking ‘in addition to any sentence…appropriate compensation to any victim’ excludes other victims of crime Recommend that s300 of CPA should be amended to provide for other categories of harm/injury Sec 28 Compensation to State Asset Forfeiture process already caters for compensation to the state by expropriating/seizing the proceeds of crime from offenders Recommend that section should be deleted

SENTENCING In agreement with all sentencing provisions in sections 4 (1), 4(2), 5, 6, 7 and 8 (1), 8 (3) except sec 9 Proposed in relation to sec 9 supra that in liability of carriers, the sentence should be increased to R5 million or 10 years

CHAPTER 9 GENERAL PROVISIONS

Sec 36 National Instructions and directives Sec 36(7) National Director of Public Prosecutions If recommendation on compensation accepted, (g) and (h): reflect the amendment of the compensation provision to s300 of the CPA (i) (i): developed proformas in terms of current legal framework (i) (ii) and (iii): reflect the amendment to s300 of the CPA

THANK YOU!