CHAPTER 5 CONCLUSION
5.5 CHAPTER 4
Prior to the promulgation of South African’s anti-trafficking legislation, trafficking in PLWA was punishable under common law and statutory law. However, the country committed itself to several international instruments that prohibit trafficking in persons, and under the obligations of these protocols, South Africa has enacted several statutes that prohibit trafficking in persons. This chapter analyses whether the South African legal framework complies with these instruments that prohibit trafficking in persons, with a focus on PLWA.
Following its obligations under the Palermo Protocol, South Africa enacted The Prevention and Combatting of Trafficking in Persons Act 7 of 2013.914 The Act is the only legislation that deals precisely with trafficking in persons in South Africa. As South African legislation, the Act should have had its own definition of trafficking in persons,
913 Palermo Protocol.
914 The Prevention and Combatting of Trafficking in Persons Act 7 of 2013.
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and that definition should have included a specific provision that addresses trafficking in PLWA, and thus addresses issues specific to this country. However, this Act does not have a specific definition for this crime in a South African context. It still relies on the Palermo Protocol for the definition.
The study notes that the use of the definition in the Palermo Protocol might not assist South Africa in prosecuting this crime. For the country to combat and prevent this crime, the definition of trafficking in persons should take into account the South African context and provide a specific meaning for trafficking in PLWA. This would assist prosecutors in dealing with this crime.
Apart from the definition, the Trafficking Act is on the right path with respect to prosecution of the perpetrators of this crime. Section 4 of the Act915 creates offences that perpetrators may be charged with for committing this crime. Many of these offences were under common law before promulgation of the Trafficking Act. The cases, which took place before the promulgation of the Trafficking Act, may still be prosecuted under common law and other statutory laws.
Furthermore, in instances where a person witnesses trafficking in PLWA but fails to report it to law enforcement personnel, they will be held liable in terms of sections 18 and 19 of the Trafficking Act. These sections make it an offence not to report trafficking in children and adults, respectively.
Although the country has enacted several statutes that criminalize trafficking in persons, such as the Children’s Act 38 of 2005916 and the Criminal Law Amendment Act 32 of 2007,917 this study has found that these legislations appear to be ineffective and limited. The Children’s Act only deals with trafficking in children and makes no provision for adults who are victims of this crime. The Criminal Amendment Act only focuses on trafficking for sexual purposes, and makes no provision for other forms of trafficking, such as trafficking for organ removal. There can be no doubt that this Act can be used in cases where PLWA were raped or sexually abused. However, it does
915 Section 4 of the Prevention and Combatting of Trafficking in Persons Act 7 of 2013.
916 Children’s Act 38 of 2005.
917 Criminal Law Amendment Act 32 of 2007.
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not protect other victims. Trafficking in PLWA continues to be a major concern in South Africa, and the prosecution of this crime takes time to be completed.
The majority of South Africa’s legislation does not address trafficking in PLWA directly.
While some scholars may argue that PLWA fall within the category of disabled persons, the fact is that in order to combat and prevent trafficking in this vulnerable group, the country will need a specific statute that criminalizes this trafficking. Although the country enacted a specific Trafficking Act in 2013, that statute also failed to address issues concerning trafficking in PLWA.
Furthermore, the Trafficking Act is limited to trafficking in persons. It excludes trafficking in body parts from the corpses and the graves of PLWA. It does not even provide for punishment of the perpetrators. This clearly creates confusion for the prosecution. In most cases, the victims are found dead. In such cases, it becomes difficult to identify whether the body parts were removed from a live person or a corpse.
If the body parts were removed from a corpse or grave, perpetrators may be charged under common law. The Trafficking Act should incorporate a provision that will address this aspect, since trafficking in persons regularly results in death.
Lastly, PLWA face every form of discrimination in their communities in South Africa.
They are called names, there is clearly a hatred against them, yet the country does not have specific legislation that addresses hate crime. Once enacted, the proposed bill, the Prevention and Combatting of Hate Crime and Hate Speech Bill,918 will be the only legislation in South Africa that makes specific provision for PLWA. Section 3(1)(b) of the Bill makes it a hate crime offence to kill PLWA in South Africa.919
Furthermore, words that are harmful and promote hatred towards PLWA are punishable in terms of section 4(1)(a) (bb)920 of the Bill. This clearly indicates that the country is taking a positive step in dealing with the trafficking of this vulnerable group.
The Bill further provides preventative measures against this crime through section 9921
918 The Prevention and Combatting of Hate Crimes and Hate Speech Bill.
919 Section 3 (1)(b) of the Prevention and Combatting of Hate Crimes and Hate Speech Bill.
920 Section 4(1)(a) (bb)of the Prevention and Combatting of Hate Crimes and Hate Speech Bill.
921 Section 9 of the Prevention and Combatting of Hate Crimes and Hate Speech Bill.
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of the Act. It obliges cooperation between the various state institutions such as the South African Human Rights Commission and the Commission for Gender Equality, to engage with various stakeholders to raise awareness that addresses the prohibition of this crime.922