3.1 Interim counter trafficking
3.1.1 Children’s Act 38 of 2005
Interim provisions on trafficking in children are included in the Children’s Act 38 of 2005 (‘the Children’s Act’) in partial compliance with the Palermo Protocol. Given that the Children’s Act applies to children only, it does not fully comply with standard 1, namely the definition of ‘trafficking in persons’. The Children’s Act contains a definition of ‘trafficking in relation to a child’ only. The Act provides that:
‘“trafficking”, in relation to a child –
(a) means the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of the Republic –
(i) by any means, including the use of threat, force or other forms of coercion, abduction, fraud, deception, abuse of power or the giving or receiving of payments or benefits to achieve the consent of a person having control of a child; or
(ii) due to a position of vulnerability, for the purpose of exploitation; and
(b) includes the adoption of a child facilitated or secured through illegal means.’
This definition is to a large extent similar to the provision in the Palermo Protocol pertaining to the trafficking of a child. However, apart from the similar action and purpose components of the definition, there are a number of differences between the definitional formulations. First, the definition in the Children’s Act is somewhat broader than that of the protocol, in that the terms ‘sale’ and ‘supply’ are added as prohibited actions.
Secondly, adoption secured through illegal means is also included in the action component of the definition of trafficking in children.The unqualified inclusion of illegal adoption in the Act may cause confusion. In agreement with Kassan,it must be pointed out that an ‘illegal adoption’ means the ‘exploitation of the adoptive system and laws and not necessarily the exploitation of the adopted child’. For an illegal adoption to qualify as trafficking, an interpretation should be followed in line with that in the Palermo Protocol, namely that the primary intention of the illegal adoption must be to exploit the child.
Thirdly, the definition of trafficking in the Children’s Act also differs from the provision in the Palermo Protocol regarding the so-called ‘means’ element. The ‘means’ element in the Palermo Protocol requires that the perpetrator must use at least one of the listed improper means, such as force, threat, fraud or deception, in committing the prohibited action. In the case of the trafficking of adults, the Palermo Protocol requires the presence of the means element to constitute human trafficking, but not for the trafficking of a child under the age of eighteen years. In providing special protection for children, the Palermo Protocol lays down that the prescribed action element, namely the recruitment, transportation, transfer, harbouring or receiving of a child for the purpose of exploitation, constitutes trafficking in persons, even if none of the means set out in the definition were used. Unlike the protocol, the Children’s Act provides that trafficking in children requires the prohibited action to be committed by ‘any means, including the use of threat, force or other forms of coercion, abduction, fraud, [and] deception’, for the purpose of exploitation. One interpretation of ‘any means’ is that no means are required for child trafficking, and that the definition in the Children’s Act thus corresponds with the definition in the Palermo Protocol. Then again, Kassan points out that a different interpretation of ‘any means’ is that the Children’s Act does require one of the specified means to be present to constitute trafficking in children.The latter interpretation is problematic, in that, if the means element is required for trafficking in children, it is not in line with the Palermo Protocol, which waives the means element in regard to child trafficking. The formulation of the ‘means’ element in the definition of ‘trafficking’ in the Children’s Act has therefore been ‘criticised for creating a greater evidentiary burden’ than is required by the Palermo Protocol.
The third standard requires the criminalisation of human trafficking. The Children’s Act criminalises the trafficking of children by natural or juristic persons for an exploitative purpose. Unlike the international standard, this provision only applies to children who are trafficked and not to adult victims. It is to be welcomed that the Children’s Act regards child trafficking as a serious offence, for which imprisonment of up to twenty years may be imposed.Additional protection for children is provided, in that it is no defence for the perpetrator that the child, or the person having control over the child, has consented to the exploitation or illegal adoption or that the intended exploitation or adoption did not occur.
As was pointed out in relation to standard four above, states parties are not only obligated to criminalise the main crime of human trafficking, but also any conduct constituting attempts to commit the crime, participation as accomplices, and organising or directing others to commit human trafficking.The Children’s Act does not include the criminalisation of attempts to commit human trafficking, because this is already covered in existing South African law. The attempt to commit any crime is recognised as a substantive crime in the South African legal system.
Participation as an accomplice by unlawfully and intentionally furthering a crime committed by someone else is also punishable in our existing law. Furthermore, the Riotous Assemblies Act 17 of 1956 (‘Riotous Assemblies Act’) criminalises conspiracy and incitement to commit a crime.However, the Riotous Assemblies Act does not include the protocol’s specific term ‘organising’ others to commit human trafficking.
Apart from criminalising the crime of trafficking, the Children’s Act also criminalises certain behaviour ‘facilitating trafficking in children’ in order to cast the net wide enough so as to include the various role players that usually profit from this crime. On conviction of this crime of facilitating trafficking in children, a maximum of ten years’ imprisonment may be imposed. In short, the prohibited behaviour entails leasing any property for the purpose of harbouring a trafficked child or distributing information alluding to trafficking. Further, internet service providers are required to report any site on their servers that contains such prohibited information.
Apart from creating trafficking offences, chapter 18 of the Children’s Act also regulates other matters in regard to trafficking in children, such as the provision of international cooperation, as well as extraterritorial jurisdiction. Underpinning the best-interests-of-the-child principle, the Act further provides for the safety of the trafficked child and specific assistance in returning the child to the Republic,as well as for referral and repatriation procedures. However, Kassan maintains that the provisions for assisting trafficked children in the Children’s Act do not fully comply with all the types of assistance that states parties are obliged to render or consider in terms of the Palermo Protocol.
Finally, the counter-trafficking provisions in the Children’s Act make it possible to prosecute offenders for any type of trafficking where a child is the victim. However, full compliance with the Palermo Protocol is lacking, because this Act applies to child victims only and therefore offers no remedy for trafficked adults.