South Africa enacted a comprehensive legal framework to prevent and combat human trafficking in 2013 and began implementing it in late 2015. Prior to that, the country relied on existing criminal laws not directly relevant to trafficking matters and provisional laws enacted to address certain aspects of human trafficking crimes. The new legal framework includes a broad definition of trafficking and sets out various trafficking-related offenses that are subject to harsh penalties. It also gives victims access to a number of services and programs. In addition, it encourages witnesses to trafficking offenses to cooperate with law enforcement by according them certain protections.
South Africa has in place institutions and programs whose functions include providing training to government officials that deal with human trafficking issues. In 2003, South Africa established the Human Trafficking Desk within the Organized Crime Unit (OCU) of the South African Police Service (SAPS). One of functions of the Desk is training members of the OCU that investigate trafficking offenses. In 2009, South Africa established an anti-human-trafficking initiative known as the Tsireledzani Programme with a capacity-building component aimed at devising training programs for social workers and health, law enforcement, immigration, labor, and justice officials.
The recently-issued human trafficking legal framework envisages the involvement of various institutions in implementing its provisions. Regulatory powers are delegated to a number of institutions, including the Department of Justice and Constitutional Development, the Department of Social Development, the Department of Home Affairs, and the South African Police Service (SAPS). The legislation also mandates the development of training programs for officials from various government agencies that deal with trafficking issues and the formulation of awareness programs for the general public. It appears that such programs have not yet been established.
Human trafficking is said to be a significant problem in South Africa. Although accurate statistical information on the prevalence of the problem is largely not available, there are consistent reports regarding South Africa’s status as a major source, transit, and destination country for human trafficking in southern Africa. In its 2015 Trafficking in Persons (TIP) Report, the US Department of State gave South Africa a Tier 2 designation, a level reserved for countries “whose governments do not fully comply with the TVPA’s [Trafficking Victims Protection Act of 2000] standards for the elimination of trafficking, but are making significant efforts to bring themselves into compliance with those standards.” South Africa has had this rating since the Department of State started issuing the annual TIP reports in 2001.
South Africa recently put in place a comprehensive legal framework to prevent and combat human trafficking. South Africa is party to various international and regional instruments dealing with human trafficking. All of these instruments require the country to put in place a legal and policy framework that meet the standards set by their provisions. Under the 1996 Constitution, national laws enacted by its Parliament are required for the implementation of the country’s obligations under international law. While it had implemented some of these international instruments on an ad hoc basis (for instance, the 2005 Children’s Act included a chapter on trafficking in children), South Africa did not have comprehensive legislation on the matter until the enactment in 2013 of the Prevention and Combatting of Trafficking in Persons Act. However, this legislation did not take effect until August 2015 and its accompanying regulations were not enacted until October of the same year.
Prior to 2015, South African anti-human-trafficking laws were said to have been fragmented and limited in scope. During this period, human trafficking cases were dealt with in two ways: First, through the utilization of existing laws—laws that did not criminalize human trafficking per se but were used to prosecute human trafficking actors for crimes they committed in the process. These included both statutory offenses (including under the Intimidation Act of 1982 and the Prevention of Organized Crime Act of 1998) and common law offenses (such as kidnapping, slavery, and assault). The second method was through the enactment of provisional laws to address specific aspects of human trafficking. In this category are the Children’s Act of 2005 and the Trafficking in Children and the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007.
This presented a number of challenges. For instance, it was difficult to prosecute individuals other than those directly linked to the trafficking offenses, and whenever prosecutors were able to secure convictions, the sentences were often seen as inadequate. In addition, even the statutes with sections dealing specifically with human trafficking matters were reportedly limited in scope, both in terms of the types of cases they could be used to prosecute (for instance the Children’s Act only applied to children) and in their overall contribution to reducing human trafficking, in that they did not provide for awareness training and preventative measures.
The recently enacted comprehensive legislation seeks to ensure South Africa’s compliance with all its obligations under international law and ameliorate the above-noted deficiencies in prosecuting human trafficking offenses. This report briefly discusses key parts of the legislation. It includes a discussion of the recently introduced anti-human-trafficking legal framework as well as existing and recently established or recently mandated government institutions and programs to prevent and combat human trafficking in South Africa, including training of government officials.
II. Anti-Human Trafficking Legal Framework
The Prevention and Combating of Trafficking in Persons Act (PCTP Act) adopts a broad definition of what constitutes trafficking. This includes
- delivery, recruitment, transportation, transfer, harboring, sale, exchange, leasing or receiving of any person, for the purpose of exploitation in or outside of South Africa, through various means including threat of harm, fraud, abduction, or abuse of power aimed at the victim or anyone related to that person; or
- adoption of a child or conclusion of forced marriage for the purpose of exploitation in or outside of South Africa.
Exploitation includes all forms of slavery or practices similar to slavery, sexual exploitation, servitude, forced labor, child labor, removal of body parts, or impregnating female persons for the purpose of selling their children.
The PCTP Act criminalizes various acts that constitute or relate to trafficking in persons and imposes harsh penalties for violators. The following are among the offenses enumerated in the legislation:
- Trafficking in persons: punishable by a fine not exceeding South African Rand ZAR100 million (about US$6.15 million) and/or a custodial sentence of up to life in prison.
- Intentionally engaging in conduct that causes another person to enter into debt bondage: punishable by up to fifteen years in prison and/or a fine.
- Using the services of victims of trafficking: punishable by up to fifteen years in prison and/or a fine.
- Facilitation of trafficking in persons, including through the leasing of rooms or publishing of advertisements: punishable by up to ten years in prison and/or fine.
- Attempt of any of the above-listed offenses: punishable by the same penalty imposed for the commission of the actual offense.
In determining sentences for offenses under the PCTP Act, South African courts are required to consider various aggravating factors. These include previous conviction(s), whether the perpetrator caused the victim to develop substance dependency, the age of the victim, the length of and conditions under which the victim was kept, and whether the offense was committed as part of organized crime.
In addition to the applicable criminal penalties, the PCTP Act also provides for compensation of victims of trafficking. It empowers a South African court before which a trafficking offense is prosecuted on its own motion or at the request of the victims, to order a convicted defendant to pay his victim(s) for damage to or loss of property, physical or mental suffering, causing the contraction of a life-threatening disease or diseases, or loss of income or support. If the payment awarded by the court is insufficient, the victim reserves the right to institute a civil action against the perpetrator.
The PCTP Act accords South African courts extraterritorial jurisdiction in certain circumstances. South African courts may assume jurisdiction over certain cases involving acts committed outside of South Africa if such acts constitute an offense under the relevant provisions of the PCTP Act and one of the following factors is present:
- The victim or the alleged perpetrator is a resident or citizen of South Africa
- The alleged perpetrator is present in South African territory (including on a vessel or an off-shore installation registered or required to be registered in South Africa)
- The perpetrator is a juridical person registered under South African law
Whether the act in question constitutes an offense in the jurisdiction where it was committed is immaterial.
The PCTP Act seeks to encourage witness cooperation with law enforcement. It requires that anyone (except legal practitioners in certain circumstance) who knows or suspects the commission of a trafficking offense to report it to the police. The Act accords immunity to individuals who report suspected trafficking offenses in good faith from any civil or disciplinary actions. In addition, such persons are also entitled to have their identity kept confidential to ensure their safety “unless the interests of justice require otherwise.”
Under the PCTP Act, various services are available to trafficking victims. For instance, adult victims of trafficking are entitled to access various programs offered by accredited organizations, including counseling programs and programs aimed at reintegration of victims to their families and communities. Foreigners who are victims of trafficking are entitled to healthcare services.
III. Government Institutions and Programs
A. Institutions and Directives Under the PCTP Act
The PCTP Act envisages the participation of a number of institutions in the implementation of its provisions. For instance, under this Act, accredited institutions, which may be government or private institutions, will provide various services to victims of the trafficking. These institutions are regulated by the Minister of Social Development, who is authorized to issue procedures for their accreditation and requirements for their eligibility for program grants. The Minister will also be issuing norms and minimum standards for accredited organizations including on the safety of victims of trafficking and access to and provision of adequate health services to victims. The Minister of Justice and Constitutional Development, in consultation with various other state organs, is charged with approving a national policy framework, developed by his/her Director General in consultation with various other government institutions, including for the purpose of guiding the implementation and administration of the Act and enhancing the delivery of services envisaged in the Act.
In addition, different Departments are tasked with regulating different aspects of the efforts for the prevention and combating of human trafficking. For instance, the Minister of Justice and Constitutional Development is authorized to issue regulations with regard to the manner in which public prosecutors may order the assessment of alleged victims of trafficking. The Minister of Home Affairs is tasked with issuing regulations on how foreigners associated with trafficking cases (victims and witnesses) would be able to stay in South Africa. The Minister of Social Development is charged with enacting regulations, including on “the assessment of a person to determine whether he/she is a victim of trafficking.”
Further, the PCTP Act mandates the enactment of national directives and instructions. The Director General of the Department of Justice and Development, in consultation with various government organs, is required to issue directives “with which all police officials, members of the prosecuting authority and officials of the Departments of Home Affairs, Labour and Social Development must comply with in the execution of their functions.” The directives would cover issues such as how to report human trafficking cases and the actions required to ensure the safety of victims of trafficking and witnesses. Similarly, the National Commissioner of SAPS, in consultation with various other institutions, must issue national instructions that all police officials must comply with, including on which police units can investigate trafficking cases, the manner in which such cases are investigated, and the collection and analysis of information on trafficking cases.
B. Training and Capacity-Building Programs
1. Human Trafficking Desk
Established in 2003, the Human Trafficking Desk is part of the Organized Crime Unit of the South African Police Service (SAPS). One of the functions of the Desk is providing training to members of the Organized Crime Unit that investigate human trafficking crimes. The Desk also coordinates human trafficking matters around the country, advises the chief of the Organized Crime Unit on human-trafficking issues, and monitors the effectiveness of the Organized Crime Unit in dealing with human-trafficking crimes.
2. Tsireledzani Programme
The Tsireledzani Programme, headed by the National Prosecuting Authority (NPA), is an anti-human trafficking initiative established in 2009 that involves various government, international, and national organizations. The objectives of the initiative include ensuring South Africa’s compliance with the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (one of the Palermo Protocols) “through research, training and awareness-raising.” The NPA website indicates that the International Organization of Migration (IOM) is in the process of “implementing the capacity-building and development component of Tsireledzani.” According to the NPA,
[t]his component will build the capacity of government officials, NGOs and media to prevent trafficking from South Africa, identify trafficked persons, improve the standard of physical protection and direct assistance offered to victims of trafficking in the country, and increase the number of trafficking cases investigated and prosecuted by law enforcement and justice officials.
Workshops have been designed to ensure that the identified, five government departments develop the capacity to train social workers, health, law enforcement, immigration, labour and justice officials on the prevention & combatting of human trafficking, as well as the protection and assistance of victims. The training content imparts basic awareness and an intermediate level of competency for NGO workers, to identify, protect and directly assist trafficked persons. At the end of the capacity development process a comprehensive and inter-sectoral National Curriculum on Human Trafficking consisting of 5 curricular modules (one for each department), and one additional curricular module on expected comprehensive anti-trafficking legislation will have been published.
The page from which this information was obtained is not dated and, therefore, the timeline of the capacity-building program is unclear. A 2010 survey involving 101 prosecutors found that only nineteen had received human-trafficking-related training.
3. Mandated Training under the PCTP Act
The PCTP Act states that the Director General of the Department of Justice and Constitutional Development, the National Commissioner of SAPS, the National Director of Public Prosecutions, and the Directors General of Home Affairs, Labour and Social Development “must each develop training courses . . . to ensure that all police officials, prosecutors and other functionaries are able to deal with matters relating to trafficking in persons in an appropriate, efficient and sensitive manner.” The Act requires that the courses include “training, also incorporating social context training, on the national instructions or directives[] . . . and . . . provide for and promote the use of uniform norms, standards and procedures. . . .”
No specific training programs or courses developed in compliance with the provisions of the PCTP Act were located.
4. Public Awareness Programs
Under the PCTP Act, the Director General of the Department of Justice and Constitutional Development (in consultation with various other organs of the government) is tasked with “establishing public awareness programmes or other measures for the prevention and combating of trafficking in persons.” The type, purpose and design of the programs would vary depending on the target audience. For instance, programs designed for the general public and those who are vulnerable to trafficking would include information on
common recruitment techniques used by traffickers . . . , practices used to keep victims of trafficking in exploitative situations . . . , the forms of abuse to which victims of trafficking may be subjected . . . , and organizations, institutions or law enforcement agencies that may be approached for assistance or information. . . .
Programs designed for victims of trafficking would include information on “their rights as victims . . . , legal or other measures in place to ensure their safety, recovery, return and repatriation, and . . . organisations, institutions or law enforcement agencies that may be approached for assistance of [sic] information.”
No specific public awareness programs developed in compliance with the provisions of the PCTP Act were located.
Prepared by Hanibal Goitom
Foreign Law Specialist
 South Africa: Still Waiting for an Anti-Human Trafficking Law, Irin News (June 30, 2011), http://www.irinnews. org/report/93104/south-africa-still-waiting-for-an-anti-human-trafficking-law, archived at https://perma.cc/C822-6GRB; Troy Martens & Vivian Attwood, Women and Children Trafficked at SA Border, Independent Online (Sept. 18, 2007), http://www.iol.co.za/news/south-africa/women-and-children-trafficked-at-sa-border-1.371169, archived at https://perma.cc/S9ZW-XK4J; Rebecca Wynn, SA Hotbed of Human Trafficking, Mail and Guardian (June 5, 2007), http://mg.co.za/article/2007-06-05-sa-hotbed-of-human-trafficking, archived at https://perma.cc/7XGP-JWV4; Laura Brooks Najemy, South Africa’s Approach to the Global Human Trafficking Crisis: An Analysis of the Proposed Legislation and the Prospects of Implementation, 9(1) Wash. U. Glob. Stud. L. Rev. 171, 176–77 (Jan. 2010), http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1044&context=law _globalstudies, archived at https://perma.cc/A9HZ-D2HA.
 Tier Placements, U.S. Department of State, http://www.state.gov/j/tip/rls/tiprpt/2015/243366.htm (last visited Feb. 1, 2015), archived at https://perma.cc/C76K-HJRU; U.S. Department of State, Trafficking in Persons Report 2015, at 308 (July 2015), http://www.state.gov/documents/organization/245365.pdf, archived at https://perma.cc/KWU9-8GUU.
 All of the TIPS reports are available on the US Department of State website, at http://www.state.gov/j/tip/ rls/tiprpt/index.htm (last visited Feb. 4, 2016), archived at https://perma.cc/7C39-KNPZ.
 These include: (1) the 2000 United Nations Convention Against Transnational Organized Crime, which South Africa signed in December 2000 and Ratified in February 2004 (United Nations Convention Against Transnational Crime (Status), United Nations Treaty Collection (UNTC), https://treaties.un.org/Pages/ViewDetails.aspx? src=TREATY&mtdsg_no=XVIII-12&chapter=18&lang=en (last visited Feb. 1, 2016), archived at https://perma.cc/Y724-NVS6); (2) the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (commonly known as the Palermo Protocol), which South Africa signed and ratified at the same time (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Status), United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&lang=en (last visited Feb. 1, 2016), archived at https://perma.cc/TT9R-AXVZ); (3) the 1989 Convention on the Rights of the Child, which South Africa signed in January 1993 and ratified in June 1995 (Convention on the Rights of the Child (Status), UNTC, https://treaties.un.org/Pages/ViewDetails.a spx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en (last visited Feb. 1, 2016), archived at https://perma.cc/TT5M-UXNZ); (4) the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which South Africa acceded to in June 2003 (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (Status), UNTC, https://treaties.un.org/Pages/ViewDetails. aspx?src=IND&mtdsg_no=IV-11-c&chapter=4&lang=en (last visited Feb. 1, 2016), archived at https://perma.cc/U8AJ-AW6W); (5) the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which South Africa signed in January 1993 and ratified in December 1995 (Convention on the Elimination of All Forms of Discrimination Against Women (Status), UNTC, https://treaties.un.org/ Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en (last visited Feb. 1, 2016); (6) the 1998 Rome Statute of International Criminal Court, which South Africa signed in July 1998 and ratified in November 2000 (Rome Statute of the International Criminal Court (Status), UNTC, https://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en (last visited Feb. 1, 2016), archived at https://perma.cc/ZW5Z-PDLA; (7) the 1981 African Charter on Human and Peoples’ Rights, which South Africa signed and ratified in July 1996 (Ratification Table: African Charter on Human and Peoples’ Rights, African Commission on Human and People’s Rights (ACHPR), http://www.achpr.org/instruments/achpr/ratification/ (last visited Feb. 1, 2016), archived at https://perma.cc/8MJZ-4GHE); (8) the 1990 African Charter on the Rights and Welfare of the Child, which South Africa signed in October 1997 and ratified in January 2000 (Ratification Table: African Charter on the Rights and Welfare of the Child, ACHPR, http://www.achpr.org/instruments/ child/ratification/ (last visited Feb. 1, 2016), archived at https://perma.cc/VFS2-E4HY); and (9) the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo Protocol), which South Africa signed in March 2004 and ratified in December of the same year (Ratification Table: Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, ACHPR, http://www.achpr.org/instruments/women-protocol/ratification/ (last visited Feb. 1, 2016), archived at https://perma.cc/S9WQ-DEDH).
 South Africa Law Reform Commission, Trafficking in Persons Report (Project 131) at 3 (2008), available on the South African Department Justice and Constitutional Development website, at http://www.justice.gov.za/ salrc/reports/r_pr131_trafficking_2008.pdf, archived at https://perma.cc/MEX3-V6BM.
 Const. of S. Afr., 1996, § 231(1), available on the South African government website, at http://www.gov.za/ sites/www.gov.za/files/images/a108-96.pdf, archived at https://perma.cc/UTK8-NQF4; Najemy, supra note 1, at 180.
 Prevention and Combating of Trafficking in Persons Act 7 of 2003 (July 29, 2013), available on the Pretoria University website, at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/criminal-law-and-criminal-procedure/prevention-and-combating-of-trafficking-in-persons-act-7-of-2013/act/7-of-2013-prevention-and-combating-of-trafficking-act-8-jan-2016-to-date-pdf/download, archived at https://perma.cc/5UYQ-NHUJ.
 Prevention and Combating of Trafficking in Persons Act: Commencement, Government Gazette No. 39078 (Aug. 7, 2015), available on the South African government portal, at http://www.gov.za/sites/www.gov.za/ files/39078_proc32.pdf, archived at https://perma.cc/RF46-5GYZ.
 Regulations Under Section 43(3) of the Prevention and Combating of Trafficking in Persons Act (Act. No. 7 of 2013) (Oct. 23, 2015), http://www.lawsofsouthafrica.up.ac.za/index.php/browse/criminal-law-and-criminal-procedure/prevention-and-combating-of-trafficking-in-persons-act-7-of-2013/regulations-and-notices/7-of-2013-prevention-and-combating-of-trafficking-act-regs-gnr-1006-23-oct-2015-to-date-pdf/download, archived at https://perma.cc/Q7Z2-3FFA.
 Charlene May & Mandivavarira Mudarikwa, Legal Resources Centre, Trafficking of Persons: A South African Legislative Perspective 6–18 (Oct. 2011), available on the Probono.org website,at http://www.probono.org.za/Manuals/Refugee-Manual/2011_12_14_LRC_HumanTrafficking.pdf, archived at https://perma.cc/D4WM-NV7E; South Africa Law Reform Commission, supra note 5, at 10–17.
 May & Mudarikwa, supra note 10, at 6–12; South Africa Law Reform Commission, supra note 5, at 10–11.
 Human Trafficking Strategy: South Africa’s Response to Trafficking in Persons, South Africa Government Information 1–2 (Sept. 2, 2010), available on the Stop Trafficking of People website, at https://stoptrafficking ofpeople.files.wordpress.com/2010/02/south-african-government-human-trafficking-strategy.pdf, archived at https://perma.cc/EPB5-SN7X.
 Louise du Preez & Antoinette Marais, A Legal Approach to Human Trafficking in South Africa, in Global Business and Technology Association, Fulfilling the Worldwide Sustainability Challenge: Strategies, Innovations, and Perspectives for Forward Movement in Turbulent Times 780, 784–5 (Nejdet Delener et al. eds., 2011), available on the Research Gate website, at https://www.researchgate.net/profile/Tshediso_ Sekhampu/publication/255997111_Participation _In_Physical_Activity_Perceptions_of_Individuals_Living_ In_A_Low_Income_Neighborhood/links/004635215ec548312a000000.pdf#page=799, archived at https://perma.cc/Q269-QGL9.
 Prevention and Combating of Trafficking in Persons Act 7 of 2013, Preamble.
 Id. § 4.
 Id. § 1.
 Id. § 13
 Id. §§ 5 & 13.
 Id. §§ 7 & 13.
 Id. §§ 8 & 13.
 Id. § 10.
 Id. § 14.
 Id. § 29.
 Id. § 12.
 Id. §§ 18 & 19.
 Id. §§ 1, 26 & 27.
 Id. § 21.
 Id. § 26.
 Id. §§ 1 & 24.
 Id. § 25.
 Id. §§ 40 & 41.
 Id. § 43.
 Id. § 44.
 du Preez & Marais, supra note 13, at 784.
 South Africa Law Reform Commission, supra note 5, at 4.
 Carol Allaias et al., National Prosecuting Authority, Tsireledzani: Understanding the Dimensions of Human Trafficking in Southern Africa 11 (Mar. 2010), available on the International Labour Organization (ILO) website, at http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/ wcms_142882.pdf, archived at https://perma.cc/L8R8-7LDC.
 Allaias et al., supra note 47, at 53.
 Prevention and Combating of Trafficking in Persons Act, § 44.
 For more information on “national instructions and directives,” see id. § 44 (1), (2) & (10), which mandates their issuance, the purpose for which they are to be issued, and the information/procedures that such directives and instructions must contain.
 Id. § 44.
 Id. § 41.
Last Updated: 12/30/2020