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What is Human Trafficking?

Background
Working definition
Legal framework
Proposed legislation
Preventing human trafficking
National Prosecuting Authority
Asset Forfeiture Unit (AFU)

Background

In 2007, marking the 200 years anniversary for the abolition of slavery, the United Nations’ researchers and other experts agree that approximately 800,00 persons are trafficked across the world’s country borders each year.  The researchers and experts also concur that trafficking in persons (TIPs) is nothing but organised crime with a total market value estimated at $32 billion ($10 billion of which is realised at the point of an illicit sale of persons and, $22 billion of which is estimated as risk free profits derived from the sale of related illicit organised criminal activities or services).

Most researchers and experts further agree that 80% of the trafficked persons worldwide are women and children and that 50% of the latter, are minors.  Parenthetically, the International Labor Organisation (ILO) estimates that 12,3 million persons per annum worldwide are enticed or entrapped, transported and transferred for purposes of exploitation in enforced labor practiced environments. In these regards, suffice it to state that no country is immune to human trafficking. Notwithstanding the above stated, international awareness of the scourge of human trafficking has over the years increased considerably. So has moral outrage, particularly in the contexts of Sara Baartman, with specific regards to South Africa.’ ¹

‘Trafficking in Persons has been practised for centuries with slaves being captured in Africa and transported to other continents; however it is during the last decade that we have witnessed an increased awareness of the problem including the social, political, and economical ills that it engenders. This led to an increased focus on efforts to combat trafficking in persons. All over the world men and especially women and children are trafficked into a variety of exploitable situations, in domestic and international economies. Some human rights bodies and police agencies regard the human trafficking industry as one of the “fastest growing and most lucrative enterprises in the world” and it is considered to be “the third largest source of profits for organised crime behind drugs and guns.”

From research carried by Molo Songololo on the topic, it has been concluded that trafficking in persons occurs in two ways. Trafficking in persons occurs internally in South Africa from city to city, from rural area to urban area, as well as across provinces. It has been identified that the big cities i.e. Cape Town, Durban and Gauteng are the receiving areas whilst the small towns in South Africa are the sending areas. Trafficking in persons also occurs across borders meaning that victims are recruited from other countries or South African victims are transported to other countries.²

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Working definition

The International Organisation for Migration provides the following definition of human trafficking on their website:

“Human trafficking is a form of modern-day slavery. It is rooted in poverty, lack of opportunities, gender discrimination, social and political violence, and demand for services. Oftentimes, victims are lured away from their homes with promises of good jobs. Instead, they are forced into dangerous, illegal or abusive work.”

The United Nations Office on Drugs and Crime (UNODC) provides a definition that is documented in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children:

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

This Protocol provides the first internationally accepted definition on human trafficking and is the primary international legal instrument addressing the activity as a crime.

The United Nations Office on Drugs and Crime (UNODC) has furthermore highlighted the fact that the definition of trafficking is broken down into three elements: acts, the means used to commit those acts, and purposes or goals (being forms of exploitation).

Molo Songololo, a non-governmental organisation that has done in-depth research into the scourge of human trafficking in Southern Africa, breaks down this definition into different easily detectible elements, and as follows:

Trafficking involves the recruitment, transportation, harbouring, transfer and receipt of persons by means of a

• threat
• other forms of coercion
• abduction
• fraud
• deception
• abuse of power
• abuse of position of vulnerability
• the giving and receiving of payments or benefits
• achieving the consent of a person who has control over another person
• for the purpose of exploitation, forced labour, servitude, slavery or the removal of organs and illegal adoptions.

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Legal framework³

South Africa does not currently have a legal definition of human trafficking, either in the common law or in statute. Depending on the circumstances of a particular case, there are a number of offences in terms of which a person or persons suspected of being involved in the trafficking of persons for the purposes of sexual exploitation may be charged. 

In the common law, these options include abduction – the unlawful and intentional removal of an unmarried minor from the control of her/his parents or guardian with the intention of having sexual intercourse with the minor; kidnapping – the unlawful and intentional deprivation of a person of her/his freedom of movement; rape – unlawful and intentional sexual intercourse with a woman without her consent; indecent assault – unlawful and intentional assault with the object of committing an indecency; assault (either common or with the intent to inflict grievous bodily harm)  – unlawful and intentional application of force to the person of another.

• In terms of legislation, the Sexual Offences Act 23 of 1957 has a number of provisions that may be of use when prosecuting a case involving trafficking.  A broad selection of these includes section 2 which makes it illegal to keep a brothel. Section 9 creates the offence of procuring a child to have unlawful carnal intercourse with another person, with section 10 making it unlawful to procure an adult female for the same reasons.  Section 12 criminalises the detaining of a female against her will, either with the intention that she would have sexual intercourse with a male, or with the intention that she be detained in a brothel.  Section 14 prohibits proscribed sexual offences with youths, while section 20 prohibits living off the earnings of prostitution or assisting in the commission of indecent acts.
• The Child Care Act, 74 of 1983, as amended is specifically targeted at the protection of children, and provides for protection specifically against the commercial sexual exploitation of children in section 50A. Section 51 prohibits the unlawful removal of children, while section 52A prohibits the employment of certain children.
  
  
• The Prevention of Organised Crime Act, 121 of 1998

Chapter 2 of the Prevention of Organised Crime Act, 121 of 1998 [PDF] covers offences relating to racketeering activities. Broadly, it makes it an offence to be involved in racketeering activities, and to receive, use and / or invest in, any property derived from a pattern of racketeering activity. Included in Schedule 1 are the offences of rape, kidnapping, indecent assault, and the statutory offences of sections 14 and 20 of the Sexual Offences Act. It is submitted that in terms of this Act, a number of other provisions may also be of use in this context – Chapter 3 dealing with the proceeds of unlawful activities, Chapter 4 dealing with criminal gang activities, and Chapters 5 and 6 dealing with the forfeiture of assets obtained unlawfully. 

Miscellaneous legislation

There are a number of other pieces of legislation that may be used to prosecute activities that may constitute trafficking conduct:

• Basic Conditions of Employment Act 75 of 1997 [PDF] – Chapter 6 prohibits forced labour and child employment.
• Refugees Act [PDF] – section 32 deals with children of foreign nationality who are unaccompanied when entering South Africa. In a situation where a child is found to be subjected to exploitation and other activities related to trafficking, that child would be termed as “a child in need of care” and therefore would be brought before the Children’s Court to apply for refugee status.
• Films and Publications Act [PDF] – aims to provide for the classification of certain films and publications and deals with matters arising from production, possession, and distribution of such materials. The Act therefore provides for any form of pornographic film or publication depicting children to be classified.
• The Immigration Act 13 of 2002 [PDF] prohibits certain persons into the Republic.
• Various provisions of the Intimidation Act 72 of 1982 and the Corruption Act 94 of 1992 may be used creatively as the context dictates.
• The Children’s Act 38 of 2005 [PDF] contains a chapter on trafficking in children. This Act, inter alia, criminalises child trafficking (sections 281, 282 & 284) and provides for a fine or imprisonment of up to 20 years or both a fine and such imprisonment for anyone convicted of this crime (section 305(8)). The provisions in this Act as reflected, limit trafficking offences to those committed against “children”; whilst the inclusion of trafficking in the Sexual Offences Bill is directed at both adults and children, but are limited to trafficking for sexual purposes.

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Proposed legislation

The Sexual Offences Bill [PDF]

This proposed legislation contains a specific provision, as stated supra, relating to the trafficking in persons for sexual purposes.  

Chapter 7, part 5 of the Bill defines trafficking (section 65) as:

‘the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic, by means of—       
(a) athreat of harm;
(b) the threat oruse of force, intimidation or other forms of coercion;
(c) abduction;
(d) fraud;
(e) deception or false pretences;
(f) the abuse of power or of a position of vulnerability, to the extent that the complainant is inhibited from indicating his or her unwillingness or resistance to being trafficked, or unwillingness to participate in such an act; or
(g) the giving or receiving of payments or benefits,
for the purpose of any form or manner of sexual exploitation, grooming or abuse of such person, whether committed in or outside the borders of the Republic, including for the purpose of the commission of a sexual offence or sexual act, or sexual exploitation or sexual grooming as contemplated in this Act, or exploitation for purposes of pornography or prostitution, with, against or of such person.’

Section 66 formulates the offence of ‘trafficking in persons for sexual purposes’.   

The Sexual Offences and Community Affairs Unit (SOCA) within the National Prosecuting Authority participated in the consultative process towards the drafting of Trafficking in Persons legislation (Project 131) held in June 2006 by the South African Law Reform Commission (SALRC) and also submitted written comments to the Discussion Paper and Draft Bill. A legislative framework focusing exclusively on the relatively new crime type of human trafficking will give much-needed assistance to the identification, investigation and prosecution of perpetrators.

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Preventing human trafficking

The UNODC points out that trafficking in persons is usually described in terms of the supply and demand factors that lead children and adults to leave or be removed from their place of origin to a foreign place for purposes of exploitation. Both supply and demand factors are usually seen as factors in society that make people particularly vulnerable to trafficking in persons. The supply factors are identified by UNODC as follows:

• poverty and unemployment
• family break-ups
• violence
• increase in urbanisation and migration
• low levels of education
• changes in religious and cultural belief;
• changes in international and domestic sex industries
• peer pressure.

For most people a powerful supply factor is the belief that there are better prospects in another place. This is supported by mass marketing and consumerism that is pervading societies the world over and reaches from big cities into small rural villages.

Demand factor are identified by the UNODC as the following:

• changes in the informal economies of countries
• growing involvement of criminal syndicates and illegal activities in the sector
• globalisation, migration and development; better transportation and communication; internet, cell phones, etc
• increased demand for cheap labour
• iIncrease demand for sex with children.

The UNODC further identifies particularly vulnerable groups and trends herein:

• young girls sold by their families
• children drugged and forced to fight as soldiers
• men bonded / chained in labour on mines and farm;
• women enslaved in quarries and households
• women and girls trapped in the sex trade.

The IOM provides some useful suggestions to prevent the occurrence of human trafficking.

No matter who offers you a job, whether a friend, family member, or employment agency, make sure the offer is real. Take the following steps:

• The employer – check that the employer is a registered company with a physical address and a landline. Try to contact them before accepting the offer.
• Your contract – make sure that you sign a legal contract with terms that you have agreed to.
• Documents – if traveling abroad, make sure you have a valid passport and a work permit for the country you will be traveling to. It is illegal for an employer to keep your passport.
• Travel costs – if your future employer offers to pay for your travel, your contract should state the amount you will owe and how long it will take you to repay.
• Keep in contact – call a friend or family member regularly. Once you arrive at your destination, call them with your exact location. They will know something is wrong if you don’t get in touch with them.
• Keep a list of emergency numbers handy – IOM help line, police, Life Line, your embassy in the country you are going to.
• Speak to the embassy of the country you are going to. An embassy can:
  • provide you with emergency contact numbers for their country.
  • help you obtain the correct documents to work legally in their country.

Also see the factors that contributed to ‘Da’, a Thai lady being trafficked [PDF] .

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National Prosecuting Authority

Asset Forfeiture Unit (AFU)⁴

Where there has been a significant benefit or there are valuable assets which are concerned in the commission of the offences or are the proceeds of unlawful activities, the Asset Forfeiture Unit (AFU) should be notified in order to establish the viability of proceeding against the perpetrators and their assets in terms of the Prevention of Organised Crime Act (Act 121 of 1998) (POCA).

In short, there are three options available to the AFU:

1. Where suspects/accused persons have benefited from their crimes and are likely to be convicted the AFU would be in a position to restrain their assets and after conviction (but before sentence), apply for a confiscation order to remove the benefit of their crimes from their control. This would be termed a Chapter 5 or Criminal Forfeiture. A conviction is a prerequisite for this procedure to ultimately succeed.
2. Where property (including but not limited to cash or funds in accounts, etc) has been identified as having been concerned in the commission of unlawful activities, or is or represents the proceeds of unlawful activities, the AFU may apply for a preservation order followed by an application for a forfeiture order. This would be termed a Chapter 6 or Civil Forfeiture. No-one need necessarily be prosecuted. Only where offences listed in Schedule I of POCA are concerned may this procedure be applied. Item 33 of the Schedule includes any offence for which a court may impose a sentence exceeding one years imprisonment. This makes the application viable in a wide range of cases. Where there is a genuine innocent owner asset forfeiture will not be applied.
3. A combination of both Chapter 5 and Chapter 6 procedures may be applied.

Advantages of using asset forfeiture proceedings include disrupting the syndicates' asset base and limiting their ability to continue with their crimes. Where victims can prove a legal interest (e.g. a financial loss) they may be able to receive compensation from assets which are forfeited. The assets forfeited are converted to money which is deposited into the Criminal Assets Recovery Account (CARA). The funds in CARA are distributed for law enforcement purposes. Victim assistance organisations may qualify for some of the CARA funds. Both Chapter 5 and Chapter 6 proceedings are civil with a civil burden of proof. Where a criminal prosecution may not be viable, Chapter 6 proceedings may still succeed.

Prosecutors have specific duties in relation to victims of human trafficking who are to appear as witnesses. Article 6.1 of the Palermo Protocol includes "...each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making such legal proceedings relating to such trafficking confidential...". Our domestic legislation makes this possible by the application of Section 153 of the Criminal Procedure Act. The Palermo Protocol [PDF] , having been ratified by the National Executive may be considered to be law if read with Chapter 14 of the Constitution. There is thus a legal duty for the State to adhere to the protocol when using victims as witnesses and it should not be considered optional.

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1) Dr B Minyuku, National Prosecuting Authority, Sexual Offences and Community Affairs Unit (SOCA), 2007

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Last modified: 01 December 2009 09:28:29.