CHAPTER 4 THE SOUTH AFRICAN LEGAL RESPONSE TO TRAFFICKING IN
4.5 PREVENTION AND COMBATTING OF TRAFFICKING IN PERSONS ACT 7 OF
4.5.8 THE ABUSE OF POWER
Generally, abuse of power refers to the process where someone in authority misuses his powers in an abusive way;761 for example, taking advantage of vulnerable people for his personal gain. There is no precise definition of abuse of power. This is not only a challenge for the South African Trafficking Act; the drafters of the Palermo Protocol acknowledged that the Act has loophole.762 The drafters of this protocol argued that the meaning of this term “should be understood to include the power that the male
755 Ibid.
756 Ibid.
757 Ibid.
758 Ibid.
759 Ibid.
760 Section 4 of the Prevention and Combatting of Trafficking in Persons Act.
761 ‘Abuse of position of vulnerability and other “means” within the definition of trafficking in persons’
available at https://www.unodc.org/documents/human-trafficking/2012/UNODC 2012 Issue Paper - Abuse of a Position of Vulnerability.pdf , accessed on 13 September 2019.
762 Ibid.
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family members might have over female members in some legal systems and the power that parents might have over their children.”763 There can be no doubt that this argument is veracious. PLWA suffer from this abuse both in their families and their communities at large.
A typical example is found in cases where parents sell their own children to traffickers or witchdoctors. In such cases parents are abusing their powers as guardians.
Children, regardless of their conditions, are entitled to their own rights, and should not be subject to any abuse from their parents. The court in S v M concurred:
Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them . . . Individually and collectively, all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood. And foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma.764
Based on this case, it is clear that children should not be subjected to any abuse of power by their parents in South Africa. The Case Law Compendium in Trafficking in Human Beings765 provides ways in which the abuses of power in trafficking of human beings may take place. It states that:
Abuse of power, influence or position of vulnerability, as a means of perpetration of this criminal offense, may take different forms, including the abuse of a subordinate position of the victim, the abuse of the victim’s difficult material or
763 Ibid.
764 YG v State 2018 (1) SACR 64 (GJ) http://saflii.org/za/cases/ZAGPJHC/2017/290.pdf .
765 ‘A case law compendium in trafficking in human beings’ available at https://www.osce.org/mission- to-bosnia-and-herzegovina/218656?download=true , accessed on 29 September 2019.
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family situation, or abuse of the victim’s poor health. These actions aim at abusing
“vulnerability” of the victims and their feeling of helplessness that result from objective circumstances, or include acts which take advantage of any situation in which a specific person has no other real or acceptable alternative other than giving in to or being taken advantage of.766
Since the South African Trafficking Act and the Palermo Protocol do not define the abuse of power, judges and prosecutors may use these guidelines in interpreting this offense with regard to trafficking in PLWA.767 With regard to the offense in terms of section 4(1)(i), none of the PLWA consent to this brutal crime.768 Perpetrators use force and other measures to lure them. In Section 4(1)(j) it is clear that in cases where a parent or family member sells a PLWA to a witchdoctor or trafficker, they will both guilty of the offence of trafficking in persons.769 Both these provisions will help to identify whether there was any form of payment involved in the trafficking of PLWA.
The onus will be on the prosecution to prove it.
Trafficking in PLWA is also a cross-border crime.770 The body parts of PLWA are reportedly transported to other countries and vice versa. It unclear however whether or not the individuals who transport the body parts would be liable in terms of section 9 of the Trafficking Act.771 This section states that:
9. (1) A carrier who transports a person within or across the borders of the Republic, and who knows that the person is a victim of trafficking or ought reasonably to have known that the person is a victim of trafficking is guilty of offense.
(2) A carrier who, on reasonable grounds, suspects that any of its
passengers is the victim of trafficking must immediately report that suspicion to a police official for investigation.
766 Ibid.
767 Ibid.
768 Section 4 of the Prevention and Combating of Trafficking in Persons Act.
769 Ibid.
770 MP Mostert and MM Weich ‘Albinism in Africa: A proposed conceptual framework to understand and effectively address a continental crisis’ available at
http://www.saflii.org/za/journals/ADRY/2017/7.html accessed on 3 June 2019.
771 Section 9 of the Prevention and Combatting of Trafficking Act.
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(3) A carrier who fails to comply with the provisions of subsection (2) is guilty of an offense.
(4) A carrier is liable to pay the expenses incurred or reasonably expected to be incurred in connection with care, accommodation, transportation, repatriation or return of the victim to his or her country of origin or country or place from where he was trafficked, if the court finds, on the balance of probabilities, that the carrier has knowingly transported a victim of trafficking or ought reasonably to have known or suspected that it was transporting a victim of trafficking.772
It can be argued that this section criminalizes transportation of persons, rather than their body parts. It does not illegalize the instances where perpetrators transport the body parts of PLWA to various countries. This will place a challenge on prosecutors in determining whether the individuals who transport body parts of PLWA will be liable under this Act or not.
Apart from the gap in section 9 with regard to criminalizing the transportation of the body parts of PLWA, the Trafficking Act is very clear on prosecuting individuals involved in trafficking in persons, in terms of section 10.773 According to this section:
10. (1) Any person who-
(a) Attempts to commit or performs any act aimed at participating in the commission of;
(b) Incites, instigates, commands, directs, aids, promotes, advises, recruits, encourages or procures any other person to commit; or
(c) Conspires with any person to commit the offense under this chapter;
is guilty of an offense.
(2) A person who is found guilty of an offense referred to in subsection (1) is liable, on conviction, to the penalties for the offense in question, as provided for in section 13.774
772 Ibid.
773 Section 10 of the Prevention and Combatting of Trafficking Act.
774 Ibid.
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Furthermore, section 11775 provides protection to the victims with regards to consent.
In section 11(1)776 of the Act, it is provided that perpetrators of this crime cannot raise a defense that children consented to any of the offenses in terms of section 4(1)777 of the Act. This section is correct; children generally are incapable of differentiating between wrong and right. They always require guardiancy either from their parents or their legal guardians. Perpetrators usually take advantage because of their vulnerability. Although section 11(1)(a) is only protecting children, section 11(1) (b) provides a shield for adults with regard to consent. This section also denies perpetrators the opportunity to argue that adults consented to the offences prescribed in section 4.
Many offences are undoubtedly committed during trafficking in PLWA,778 and the Trafficking Act seems to acknowledge and criminalize all these offences. Apart from the Trafficking Act, there are numerous common law crimes and statutory offenses that illegalize trafficking in persons in South Africa.779 Cases that took place prior to the promulgation of the Trafficking Act can also be prosecuted under these common law crime and statutory offenses. Although under common law there is no specific provision that addresses trafficking in persons, there are still provisions that can be used to prosecute perpetrators of this crime.780