Submission on the Prevention and Combatting of Trafficking in Persons Bill: 9 June 2009
Portfolio Committee on Justice and Constitutional Development
Definition of “Sexual Exploitation”
In the Bill “sexual exploitation” means the “commission of any sexual offence in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, or any offence of a sexual nature in any other law against a victim of trafficking.”
In terms of the Palermo Protocol, legality is not necessarily a determinant in deciding whether certain activities are exploitative. The essence is, that sexual exploitation of any kind should be incorporated into the definition.
Article 3(a) of the Palermo Protocol refers as follows: "exploitation shall include at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery....."
In the proposed definition, certain aspects covered by the present provisions relating to trafficking for sexual purposes may be excluded, such as stripping, pornography or other sexual acts which might be legal (or in legal grey area), apart from the fact that the elements of trafficking were present and any consent given was therefore meaningless. In terms of the latest UN Global report on trafficking nearly 80% of trafficking relates to the trafficking of women and children for sexual purposes. It would therefore completely undermine the efficacy and indeed goal of this legislation if all area of sexual exploitation were not covered as intended. It would also not be in accordance with the Protocol.
The current definition of sexual exploitation as contained in Section 70(2)(b)(vii) of the Sexual Offences Act and, included below, is perfectly adequate, and accurately reflects the requirements of the Protocol. It is suggested that there is therefore no need to change it and that it should be included as the definition of sexual exploitation in the Bill.
Section 70(2)(b)(vii) “any form or manner of exploitation, grooming or abuse of a sexual nature 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, whether committed in or outside the borders of the Republic”.
Obligation to discourage the demand
9.5 of Palermo Protocol reads as follows: "discourage the demand that fosters all forms of exploitation of persons, especially women and children that leads to trafficking."
However, Section 3(c) of the Bill reads "discourage the demand for and the supply of victims of trafficking that fosters the exploitation of those victims, especially women and children'
This does not properly reflect the Protocol. In terms of the Palermo Protocol, it is the demand for the practices or activities that creates the environment which fosters the exploitation which ultimately encourages the trafficking victims for this exploitation. This phrase must be altered to properly reflect the Protocol. There is very little demand for trafficking victims. The demand is for e.g. the sex of prostitution, or exotic prostitution, or very cheap exploitable labour, and traffickers fulfill this demand by supplying the commodity wanted
Section 12 - Reporting of victims
Many aspects of this section need to be revised.
There should be no requirement that there has to be written permission from the trafficking victims before the matter may be reported by an official. Trafficked victims are by definition under the control of the traffickers and will not easily be able to act independently or feel that they can trust anyone. The consequences for making a mistake could be severe. Traffickers especially at borders could be accompanying the victims and they might not be able to say anything anyway despite the all the signs of trafficking being present and the border official having reasonable grounds for suspecting trafficking. Sometimes the victims are coached in what to say and too fearful to say anything else. There might also simply be no time, paper etc to put anything in writing - a simple 'help me' might be all there is. Sometimes the circumstances may simply not permit it. The victim might also be unable to speak any of the official languages or be familiar with any laws or rights in this country. These provisions will not only hamper the detection of trafficking victims but will place obstacles in the way of those trying to help.
Need for public to “substantiate” the allegation of trafficking
I fail to understand the inclusion of this requirement or that a member of the public 'may' report trafficking if they suspect it. Members of the public are not only free but generally encouraged to report incidents of crime to the police, anonymously, if necessary. See for e.g. Crime Stop lines. They do not need permission to do so. I cannot understand the need for the wording ' may report' being used when one is dealing with the very serious crimes involved in the trafficking of human beings.
This is a crime which is difficult to police, as it deals with very vulnerable people and organised crime and where there would inevitable be a strong reliance on the tip off. The witness may also be afraid to 'go on the record' for fear of consequences. The public should be encouraged to report suspicions of trafficking and it should be very easy for them to do so.
As in all other crime it is up to the SAPS to establish whether there are reasonable grounds for an investigation from what they are told by the reporting party. Members of the public are not lawyers and cannot be expected to assess whether they are able to substantiate their claim. It is mystifying that reporting a matter should be made more complex than is necessary. If there is no substance to the matter the police may simply close their inquiries or docket or a public prosecutor may decline to prosecute. There are many remedies available in law for malicious reports already.
Further, sometimes the person reporting is only passing on information received from someone else. He would not be able to personally substantiate his claim. Why should this be ignored? In a recent Free State trafficking matter a gospel singer was given information, acted on it and went to the police. He would not have known whether there was truth in the matter unless he acted upon it and through investigation the facts were revealed. Luckily he was taken seriously and the women were rescued.
1. In The Preamble: After especially women and children add 'for sexual exploitation'.
2. Use the definition of “sexual exploitation” from the Sexual Offences Amendment Act 2007 (as quoted above) in the Bill.
It appears that work permits and visas are being issued by the Department of Home Affairs to the owners of strip/lap dancing establishments to bring foreign women, particularly from Eastern Europe, but also Asia and South America, for use in their clubs.
It has become clear that this system is being abused by the aforementioned club owners to traffic and exploit women brought to the country in this way. There have previously been allegations that Mr Jackson, owner of ‘Teazers’ strip/lap dancing chain, has been involved in sex trafficking and he has, on at least two occasions, been arrested for withholding the passports of his female foreign staff (see attached M&G and other media reports).
An article has appeared in the December 2008 edition of Noseweek (copy attached) in which the dreadful circumstances under which foreign women are being brought into the country and exploited have been described. If the allegations are true, and they appear to have been gleaned from a leaked police docket, it would appear that Mr Jackson is exploiting the granting of permits and visas by the Department of Home Affairs to traffic in foreign women for sexual exploitation.
3. We urge the Justice Committee to brief the Department of Home Affairs on this issue, especially to urge them to investigate the issue of visas granted to trafficked women via owners/managers of strip clubs. Investigations should also be conducted by the police into what happens to these foreign women (supposedly coming to South Africa to be “exotic dancers”) after they enter the country.
Christian Action Network