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 the 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) After 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 using 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 leading 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 agriculture, fisheries, construction work, 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 vulnerable parts of society in developed countries are lured by promises of decent employment into leaving their homes and travelling to what they consider 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 and 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 to use 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 are likely to increase the requirement for organ transplants and make this crime even more lucrative.

People smuggling

Closely connected to the trafficking of 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

Source: https://www.dhs.gov/blue-campaign/take-second-look

Common Work and Living Conditions:

• Is not free to leave or come and go as they wish
• 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 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 their work
• High-security measures exist in work and 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 behaviour after bringing up law enforcement
• Avoids eye contact

Poor Physical Health:

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

Lack of Control:

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

Other:

• Claims of just visiting and inability to clarify where they are staying/address
• Lack of knowledge of whereabouts and of what city they are in
• Loss of sense of time
• There are numerous inconsistencies in their story

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

• Trafficking in persons is punishable by a maximum of life imprisonment.
• Engaging in conduct that causes a person to enter into debt bondage is punishable by up to 15 years of imprisonment.
• Carrying a victim of trafficking in and out of South Africa, knowing that they do not have the proper documentation, is punishable by a fine or five years of imprisonment.
• Benefiting from the services of a trafficking victim, be it financially or otherwise, is punishable by up to 15 years of imprisonment. 
• Facilitation of trafficking in persons (including through leasing of rooms and publishing of advertisements) is 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 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 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, a country must comply with the Trafficking Victims Protection Reauthorization Act (TVPRA) to cohere with minimum international standards.

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 afforded to refugees. 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 hinder the effective combatting of human trafficking in South Africa

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.

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, have made fruitful investigations and successful prosecutions scarce.

We do not have a witness protection program in South Africa for human trafficking victims. Human trafficking victims play a critical 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 and Sex Act must protect a child’s identity or privacy during litigation.

Victims are not compensated for loss or trauma. 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).

State role-players incorrectly assume that sexual violence victims would abuse government benefits by way of false claims and that victims of sexual violence did not have urgent post-assault economic losses about their court attendance and health and security concerns that required government interventions.

The Department of Justice and Constitutional Development (“DOJCD”) – the institutional overseers of the court – displays a lack of understanding of 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 counselling, 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 the offender used while committing the offence. Through POCA, courts can compensate victims for the proceeds procured from the properties in question.

Regrettably, data indicates that approximately ten 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 do not benefit from SRDGs.

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