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South Africa: Anti-Human Trafficking Legislation Signed into Law

(Aug. 2, 2013) On July 29, 2013, South Africa’s President, Jacob Zuma, signed into law the country’s first comprehensive legislation on human trafficking, the Prevention and Combating of Trafficking in Persons Bill (PCTPB), which, among other goals, seeks to implement South Africa’s international obligations with respect to the problem. (President Jacob Zuma Signs into Law the Prevention and Combating of Trafficking in Persons Bill, SOUTH AFRICA GOVERNMENT INFORMATION (July 29, 2013).)

South Africa signed the United Nations Trafficking in Persons Protocol in December 2000 and ratified that Protocol in February 2004. (Status as at : 31-07-2013 05:08:33 EDT, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, UNITED NATIONS TREATY COLLECTION (last visited July 30, 2013).) The recent legislation will take effect on a date the President fixes via a proclamation, once all the regulations needed for its proper implementation are in place. (President Jacob Zuma Signs into Law the Prevention and Combating of Trafficking in Persons Bill, supra; PCTPB, B7-2010, § 48, SOUTH AFRICA GOVERNMENT ONLINE (last visited July 30, 2013).)

The legislation adopts a broad definition of what constitutes trafficking. It includes:

the delivery, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, exchange, lease, disposal or receiving of a person, or the adoption of a child facilitated or secured through legal or illegal means, within or across the borders of the Republic, of a person trafficked or an immediate family member of the person trafficked, by … [various] means [including threat of harm, fraud or abuse of power] …. (PCTPB, § 1.)

The legislation criminalizes various acts that constitute or relate to trafficking in persons and imposes harsh penalties for violations. Among the offenses enumerated in the legislation are:

  • trafficking in persons, punishable by a maximum of life imprisonment. (Id. § 4);
  • engaging in conduct that causes a person to enter into debt bondage, punishable by up to 15 years of imprisonment (id. § 5);
  • carrying a victim of trafficking in and/or out of South Africa knowing that he/she does not have the proper documentation, punishable by a fine or five years of imprisonment (id. § 9);
  • benefiting from services of a trafficking victim, be it financially or otherwise, punishable by up to 15 years of imprisonment (id. § 7); and
  • facilitation of trafficking in persons (including through leasing of rooms, publishing of advertisements), punishable by up to ten years in prison (id. § 8).

In addition, it imposes a duty on Internet service providers to prevent the use of their services to support trafficking in persons (including advertising or promoting of trafficking in persons), to report to the South African Police Service when they discover such uses, and to take measures to suppress such use. (Id.) Failure to comply is an offense punishable by up to five years of imprisonment. (Id.)

The legislation gives South African courts extra-territorial jurisdiction in certain circumstances. These include instances in which:

  • the suspect or victim is a South African citizen or resident;
  • the suspect, after the commission of the crime for which he is sought, is present in South Africa;
  • the suspect is a juridical person registered in South Africa; or
  • the suspect is not extradited from South Africa or is a suspect for whom an extradition was not requested. (Id. § 10.)

The legislation further provides certain protections for victims of human trafficking, including foreigners. It provides that a victim of trafficking may not be charged for violating immigration law, for carrying forged documents, or for other crimes that he/she was compelled to commit by his/her captors. (Id. § 16.) It affords alien trafficking victims the same right of access to public health care services as that available to citizens. (Id. § 15.) The legislation requires the Department of Home Affairs to grant alien victims of trafficking permission to remain in South Africa for a non-renewable 90-day term, as a “recovery and reflection period.” (Id. § 17.)