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.

a) Intentionally lease or sublease any room, house, building or establishment for facilitating or promoting trafficking in persons or allows it to be used or ought reasonably to have known or suspected that it will be used to facilitate or promote trafficking in persons;

(b) Subsequent to the lease or sublease of any room, house, building or establishment, becomes aware or ought reasonably to have known or suspected that it is being used to facilitate or promote trafficking in persons and fails to report that knowledge to a police official;

(c) Intentionally advertises, publishes, prints, broadcasts, distributes or causes the advertisement, publication, printing, broadcast or distribution of information that facilitates or promotes trafficking in persons by any means, including the use of the internet or other information technology.

What is trafficking

Trafficking in human beings is generally referred to as the 21st century’s slavery, and it has been asserted that slavery/trafficking is more common now than at any time in history, from the Roman Empire to the transatlantic slave trade.

The term trafficking covers a multitude of sins. It can apply to children being exploited in myriad ways, among them: sexual exploitation, forced labour, organ removal, forced marriage, forced conscription (child soldiers), and illegal adoptions through abduction or sale of children. South Africa is commonly regarded as the main country of destination for trafficked persons in the Southern Africa region. In many cases, women and children are lured to South Africa with promises of jobs, education or marriage, only to be sold and sexually exploited in the country’s major urban centres, or small towns and more rural environments.
Victims are often lured with false promises of well-paying jobs or are manipulated by people they trust, but instead are forced or coerced into prostitution, domestic servitude, farm or factory labour, or other types of forced labour.

Types of human trafficking

There are many forms of trafficking, but one consistent aspect is the abuse of the inherent vulnerability of the victims.

Trafficking for forced labour

Victims of this widespread form of trafficking come primarily from developing countries. They are recruited and trafficked using deception and coercion and find themselves held in conditions of slavery in a variety of jobs. Men, women and children are engaged in agricultural, fisheries and construction work, along with domestic servitude and other labour-intensive jobs.

Trafficking in women for sexual exploitation

This prevalent form of trafficking affects every region in the world, either as a source, transit or destination country. Women and children from developing countries, and from vulnerable parts of society in developed countries, are lured by promises of decent employment into leaving their homes and travelling to what they consider will be a better life. Victims are often provided with false travel documents and an organized network is used to transport them to the destination country, where they find themselves forced into sexual slavery and held in inhumane conditions and constant fear.

Commercial sexual exploitation of children in tourism

This crime type has been apparent in Asia for many years and has now taken hold in Africa as well as Central and South America. The phenomenon is promoted by the growth of inexpensive air travel and the relatively low risk of prohibition and prosecution in these destinations for engaging in sexual relations with minors.

Trafficking for tissue, cells and organs

Trafficking in humans for the purpose of using their organs, in particular kidneys, is a rapidly growing field of criminal activity. In many countries, waiting lists for transplants are very long, and criminals have seized this opportunity to exploit the desperation of patients and potential donors. The health of victims, even their lives, is at risk as operations may be carried out in clandestine conditions with no medical follow-up. An ageing population and increased incidence of diabetes in many developed countries is likely to increase the requirement for organ transplants and make this crime even more lucrative.

People smuggling

Closely connected to trafficking in human beings is the issue of people smuggling. This has taken on new proportions in recent months, especially in the Mediterranean region, and it is clear that organized criminal networks are taking advantage of the humanitarian crisis for financial gain.

Indicators of Human Trafficking

Common Work and Living Conditions:

• Is not free to leave or come and go as he/she wishes
• Is in the commercial sex industry and has a pimp / manager
• Is unpaid, paid very little, or paid only through tips
• Works excessively long and/or unusual hours
• Is not allowed breaks or suffers under unusual restrictions at work
• Owes a large debt and is unable to pay it off
• Was recruited through false promises concerning the nature and conditions of his/her work
• High security measures exist in the work and/or living locations (e.g. opaque windows, boarded up windows, bars on windows, barbed wire, security cameras, etc.)

Poor Mental Health or Abnormal Behavior:

• Is fearful, anxious, depressed, submissive, tense, or nervous/paranoid
• Exhibits unusually fearful or anxious behavior after bringing up law enforcement
• Avoids eye contact

Poor Physical Health:

Lacks medical care and/or is denied medical services by employer
Appears malnourished or shows signs of repeated exposure to harmful chemicals
Shows signs of physical and/or sexual abuse, physical restraint, confinement, or torture

Lack of Control:

• Has few or no personal possessions
• Is not in control of his/her own money, no financial records, or bank account
• Is not in control of his/her own identification documents (ID or passport)
• Is not allowed or able to speak for themselves (a third party may insist on being present and/or translating)

Other:

• Claims of just visiting and inability to clarify where he/she is staying/address
• Lack of knowledge of whereabouts and/or of what city he/she is in
• Loss of sense of time
• Has numerous inconsistencies in his/her story

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.
• Engaging in conduct that causes a person to enter into debt bondage, punishable by up to 15 years of imprisonment
• 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
• Benefiting from services of a trafficking victim, be it financially or otherwise, punishable by up to 15 years of imprisonment 
• Facilitation of trafficking in persons (including through leasing of rooms, publishing of advertisements), punishable by up to ten years in prison.
• 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. Failure to comply is an offense punishable by up to five years of imprisonment.

The U.S. Department of State  monitors international efforts at combating human trafficking, and scrutinizing the degree to which a country is complying with those standards.
According to the Department, in order to cohere with minimum international standards, a country must be in compliance with the Trafficking Victims Protection Reauthorization Act (“TVPRA”).

The TVPRA focuses on three key issues: prevention, protection, and prosecution.

• Regarding prevention, the TVPRA aims to create public awareness, and international economic development programs to assist future victims.
• The TVPRA also seeks to protect victims by making them eligible for witness protection programs, and other state and federal benefits that are afforded to refuges. Such benefits include: job training, social service programs, health care, and educational services.
• The TVPRA also grants qualified victims a T-Visa, which allows them to become temporary citizens.
  Finally, regarding prosecution, the TVPRA makes human trafficking a federal crime with strict penalties.
• It also mandates restitution for victims.

Factors that hinders the effective combatting of human trafficking in South Africa

Currently, South Africa does not have specialized human trafficking units. This is problematic due to the complex nature of human trafficking cases, particularly at the investigatory stage. This is perhaps one reason why very few human trafficking cases reach South African courts, as data has uncovered that an alarming amount of human trafficking crimes go unreported each year.

Currently, investigators and prosecutors who deal with human trafficking cases are also tasked with undertaking other crimes as well. Indeed, heavy workloads where investigators and prosecutors have to deal with cases across the criminal spectrum, coupled with the complexities of litigating human trafficking cases, has made fruitful investigations and successful prosecutions scarce.

Human trafficking victims play a key evidentiary role in the prosecution process. At a minimum, domestic legislation must provide victims with necessary protections (e.g., witness protection programs). The Children’s Act and the Sex Act are silent on any type of victim protection program.
Additionally, neither the Children’s Act nor the Sex Act provides for the protection of a child’s identity or privacy during the litigation process.

Studies have shown that state attorneys, prosecutors, and judges systematically overlook the compensatory concerns of female victims for two discriminatory reasons: first, state officials ignore the specific vulnerabilities of female victims by failing to ensure that proactive measures are in place to address their unique needs. State officials regularly fail to apply available compensation avenues for victims – compensation that would have addressed the gendered financial needs of female victims, including post assault medical care and security and relocation expenses.

Interviews and victim surveys confirmed that prosecutors rarely informed sexual violence victims of available state compensation sources (namely the Social Relief of Distress Grant (SRDG) and Court Witness Stipends (CWS).

interviews with magistrates and judges confirmed that state role-players incorrectly assumed that government benefits would be abused by sexual violence victims by way of false claims and that victims of sexual violence did not have urgent post-assault economic losses, in relation to their court attendances and health and security concerns, that required government interventions.

The Department of Justice and Constitutional Development (“DOJCD”) – the institutional overseers of the court – displayed a similar lack of understanding of these gender-specific needs. The DOJDC asserts that victims of sexual violence can only seek compensation for losses or damages to property in sentencing proceedings. Gender-specific injuries include medical counseling, childcare, and pregnancy related issues.

Another compensatory mechanism includes various provisions in the Prevention of Organized Crime Act (“POCA”). Under POCA, victims can claim an interest in the instrumentalities of the underlying crime forfeited by the perpetrator. These instrumentalities include: cars, houses, or other real property that the offender used while committing the offense. Through POCA, courts can compensate victims from the proceeds procured from the properties in question.

Regrettably, data indicates that approximately 10 victims per year obtain grants through the SRDG mechanism. By comparison, there were 43,195 reported instances of sexual violence between 2014 and 2015 in South Africa. Thus, many victims are clearly not benefiting from SRDGs.

Robert Caver, “A Critical Analysis of Human Trafficking in South Africa Remedies and Recommendations” (The Center for Civil and Human Rights, 2016).