Prevention and Combating of Trafficking in Persons Act

Link to law: http://www.gov.za/documents/prevention-and-combating-trafficking-persons-act
Published: 2013-07-30

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Prevention and Combating of Trafficking in Persons Act
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions.
This means that this document will only contain even numbered pages as the other language is printed on uneven numbered pages.


Government Gazette
REPUBLIC OF SOUTH AFRICA
Vol. 577 Cape Town 29 July 2013 No. 36715

THE PRESIDENCY No. 544 29 July 2013
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
Act No. 7 of 2013: Prevention and Combating of Trafficking in Persons Act, 2013

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ACT To give effect to the Republic’s obligations concerning the trafficking of persons in terms of international agreements; to provide for an offence of trafficking in persons and other offences associated with trafficking in persons; to provide for penalties that may be imposed in respect of the offences; to provide for measures to protect and assist victims of trafficking in persons; to provide for the coordinated implementation, application and administration of thisAct; to prevent and combat the trafficking in persons within or across the borders of the Republic; and to provide for matters connected therewith.
PREAMBLE
RECOGNISING that the search for improved socio-economic circumstances and the demand for the services of victims of trafficking contribute to making persons vulnerable to becoming victims of trafficking;
CONCERNED by the increase of trafficking in persons, especially women and children, and the role played by organised criminal networks in the trafficking of persons globally;
SINCE the South African common law and statutory law do not deal with the problem of trafficking in persons adequately;
AND SINCE the Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the right to human dignity, equality, the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause, and not to be treated in a cruel, inhuman or degrading way, the right not to be subjected to slavery, servitude or forced labour, and the right of children to be protected from maltreatment, neglect, abuse or degradation; and
MINDFUL of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organised Crime, 2000, and other international agreements which place obligations on the Republic of South Africa towards the combating and ultimately, the eradication of trafficking in persons,
Parliament of the Republic of South Africa therefore enacts as follows:—
(English text signed by the President) (Assented to 28 July 2013)
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ARRANGEMENT OF SECTIONS
Sections
CHAPTER 1
DEFINITIONS, INTERPRETATION AND OBJECTS OFACT
1. Definitions 2. Interpretation of certain expressions 3. Objects of Act
CHAPTER 2
OFFENCES, PENALTIES AND EXTRA-TERRITORIAL JURISDICTION
4. Trafficking in persons 5. Debt bondage 6. Possession, destruction, confiscation, concealment of or tampering with
documents 7. Using services of victims of trafficking 8. Conduct facilitating trafficking in persons 9. Liability of carriers 10. Involvement in offences under this Chapter 11. Liability of persons for offences under this Chapter 12. Extra-territorial jurisdiction 13. Penalties 14. Factors to be considered in sentencing
CHAPTER 3
STATUS OF FOREIGN VICTIMS OF TRAFFICKING REQUIRED TOASSIST IN INVESTIGATIONS AND PROSECUTIONS
15. Protective measures for purposes of investigation and prosecution in respect of foreign victims of trafficking
16. Facilitation of police investigation or prosecution in case of foreign witnesses 17. Application for rights of permanent residence in terms of section 31(2)(b) of
Immigration Act
CHAPTER 4
IDENTIFICATION AND PROTECTION OF VICTIMS OF TRAFFICKING
18. Reporting of and dealing with child victim of trafficking 19. Reporting of and dealing with adult victim of trafficking 20. Appeals against decision of provincial head 21. Provision of health care services to a foreigner who is a victim of trafficking 22. Criminal prosecution of victim of trafficking 23. Unauthorised access to and disclosure of information
CHAPTER 5
ACCREDITATION OF ORGANISATIONS TO PROVIDE SERVICES TO ADULT VICTIMS OF TRAFFICKING
24. Accreditation of organisations to provide services 25. Norms and minimum standards 26. Programme offered by accredited organisation 27. Access to programme offered by accredited organisation 28. Plan to address needs of victim of trafficking
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CHAPTER 6
COMPENSATION
29. Compensation to victim of trafficking 30. Compensation to State
CHAPTER 7
RETURN AND REPATRIATION OF VICTIMS OF TRAFFICKING
31. Repatriation of victim of trafficking from Republic 32. Assistance to foreign victim of trafficking 33. Repatriation of suspected victim of trafficking to Republic 34. Return of adult victim of trafficking within Republic 35. Escorting of child victim of trafficking
CHAPTER 8
GENERAL PROVISIONS
36. Trafficking of child by parent, guardian or other person who has parental responsibilities and rights in respect of child
37. International cooperation 38. Legitimacy and validity of documents 39. Annual report on abuse or deliberate neglect of child and findings by children’s
court that child is in need of care and protection
CHAPTER 9
ADMINISTRATION OFACT
40. National Policy Framework 41. Coordination of responsibilities, functions and duties relating to implementa-
tion of Act 42. Report to Parliament 43. Regulations 44. National instructions and directives 45. Delegation of powers and assignment of duties by Director-General to senior
official 46. Assignment of powers and duties by Director-General to provincial head 47. Delegation of powers and assignment of duties by provincial head
CHAPTER 10
MISCELLANEOUS MATTERS
48. Laws repealed or amended 49. Transitional arrangements 50. Short title and commencement
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SCHEDULE
Laws repealed or amended
CHAPTER 1
DEFINITIONS, INTERPRETATION AND OBJECTS OFACT
Definitions
1. In this Act, unless the context indicates otherwise— ‘‘abuse of vulnerability’’ for purposes of section 4(1), means any abuse that leads a person to believe that he or she has no reasonable alternative but to submit to exploitation, and includes but is not limited to, taking advantage of the vulnerabilities of that person resulting from— (a) the person having entered or remained in the Republic illegally or without
proper documentation; (b) pregnancy; (c) any disability of the person; (d) addiction to the use of any dependence-producing substance; (e) being a child; (f) social circumstances; or (g) economic circumstances; ‘‘accredited organisation’’ means an organisation, including a government institution, accredited in terms of section 24 to provide services to adult victims of trafficking; ‘‘body part’’ for purposes of this Act, means any blood product, embryo, gamete, gonad, oocyte, zygote, organ or tissue as defined in the National Health Act, 2003 (Act No. 61 of 2003); ‘‘carrier’’ includes a person who is the owner or employee of the owner, an agent, an operator, a lessor, a driver, a charterer or a master, of any means of transport; ‘‘child’’ means a person under the age of 18 years; ‘‘Children’s Act’’ means the Children’s Act, 2005 (Act No. 38 of 2005); ‘‘children’s court’’ means a children’s court referred to in section 42 of the Children’s Act; ‘‘court’’ means a High Court or a magistrate’s court for any district or for any regional division; ‘‘Criminal Law (Sexual Offences and Related Matters) Amendment Act’’ means the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007); ‘‘Criminal Procedure Act’’ means the Criminal Procedure Act, 1977 (Act No. 51 of 1977); ‘‘debt bondage’’ means the involuntary status or condition that arises from a pledge by a person of— (a) his or her personal services; or (b) the personal services of another person under his or her control, as security for a debt owed, or claimed to be owed, including any debt incurred or claimed to be incurred after the pledge is given, by that person if the—
(i) debt owed or claimed to be owed, as reasonably assessed, is manifestly excessive;
(ii) length and nature of those services are not respectively limited and defined; or
(iii) value of those services as reasonably assessed is not applied towards the liquidation of the debt or purported debt;
‘‘designated child protection organisation’’ has the meaning ascribed to it in section 1 of the Children’s Act; ‘‘electronic communications’’ means the emission, transmission or reception of information, including without limitation, voice, sound, data, text, video, anima- tion, visual images, moving images and pictures, signals or a combination thereof
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by means of magnetism, radio or other electromagnetic waves, optical, electro- magnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct; ‘‘electronic communications identity number’’ means a technical identification label which represents the origin or destination of electronic communications traffic, as a rule clearly identified by a logical or virtual identity number or address assigned to a customer of an electronic communications service provider (such as a telephone number, cellular phone number, e-mail address with or without a corresponding address, web address with or without a corresponding IP address or other subscriber number); ‘‘electronic communications service provider’’ means a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service; ‘‘exploitation’’ includes, but is not limited to— (a) all forms of slavery or practices similar to slavery; (b) sexual exploitation; (c) servitude; (d) forced labour; (e) child labour as defined in section 1 of the Children’s Act; (f) the removal of body parts; or (g) the impregnation of a female person against her will for the purpose of selling
her child when the child is born; ‘‘forced labour’’ means labour or services of a person obtained or maintained— (a) without the consent of that person; and (b) through threats or perceived threats of harm, the use of force, intimidation or
other forms of coercion, or physical restraint to that person or another person; ‘‘forced marriage’’ means a marriage concluded without the consent of each of the parties to the marriage; ‘‘foreigner’’ means a person who is not a citizen or permanent resident of the Republic; ‘‘guardian’’ has the meaning ascribed to it in section 1 of the Children’s Act; ‘‘illegal foreign child’’ means a child who is present in the Republic in contravention of the Immigration Act; ‘‘immediate family member’’means the spouse, civil partner or life partner and dependant family members of a victim of trafficking; ‘‘Immigration Act’’ means the Immigration Act, 2002 (Act No. 13 of 2002); ‘‘letter of recognition’’means a formal written recognition that an adult person is a victim of trafficking issued in terms of section 19(10); ‘‘MEC’’ means the member of the Executive Council of a province to whom the powers and functions relating to social development in that province have been assigned by the Premier of that province; ‘‘Minister’’ means the Cabinet member responsible for the administration of justice; ‘‘National Director of Public Prosecutions’’ means the person referred to in section 179(1)(a) of the Constitution of the Republic of South Africa, 1996, and appointed in terms of section 10 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); ‘‘parent’’ has the meaning ascribed to it in section 1 of the Children’s Act; ‘‘parental responsibilities and rights’’, in relation to a child, means the responsibilities and rights referred to in section 18 of the Children’s Act; ‘‘person’’, for purposes of this Act, includes a natural person, a juristic person and a partnership, unless the context indicates otherwise; ‘‘police official’’means a member of the SouthAfrican Police Service as defined in the South African Police Service Act, 1995 (Act No. 68 of 1995); ‘‘prescribe’’ means prescribe by regulation in terms of section 43 of this Act; ‘‘protective custody’’, for purposes of section 19, means the detention or confinement of a person by the South African Police Service for the purpose of protecting that person in any place which is used for the reception, detention or confinement of a person who is in custody of the South African Police Service and includes all land, buildings and premises adjacent to that place and used in connection therewith;
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‘‘provincial department of social development’’ means the department within a provincial administration responsible for social development in the province; ‘‘provincial head’’ has the meaning ascribed to it in section 1 of the Public Service Act, 1994 (Proclamation No. 103 of 1994); ‘‘removal of body parts’’ means the removal of or trade in any body part in contravention of any law; ‘‘servitude’’ means a condition in which the labour or services of a person are provided or obtained through threats of harm to that person or another person, or through any scheme, plan or pattern intended to cause the person to believe that, if the person does not perform the labour or services in question, that person or another person would suffer harm; ‘‘sexual exploitation’’means the commission of— (a) any sexual offence referred to in the Criminal Law (Sexual Offences and
Related Matters) Amendment Act; or (b) any offence of a sexual nature in any other law; ‘‘slavery’’ means reducing a person by any means to a state of submitting to the control of another person as if that other person were the owner of that person; ‘‘social worker’’ means a person registered as a social worker in terms of section 17 of the Social Service Professions Act, 1978 (Act No. 110 of 1978); ‘‘temporary safe care’’ for purposes of section 19, means care of an adult person suspected of being a victim of trafficking in a shelter, private home or any other place approved by the Director-General: Social Development where that person can be accommodated safely pending the placement of that person in an accredited organisation; ‘‘trafficking in persons’’ has the meaning assigned to it in section 4(1); ‘‘UN Protocol to Prevent, Suppress and Punish Trafficking in Persons’’ means the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organised Crime, 2000; and ‘‘victim of trafficking’’ means— (a) a child who is found to be a victim of trafficking after an assessment in terms
of section 18(6); or (b) an adult person who has been issued with a letter of recognition as provided
for in section 19(10).
Interpretation of certain expressions
2. (1) For purposes of thisAct, a person is regarded as having knowledge of a fact if— (a) that person has actual knowledge of the fact; or (b) the court is satisfied that—
(i) the person believes that there is a reasonable possibility of the existence of the fact; and
(ii) the person has failed to obtain information to confirm the existence of that fact,
and ‘‘knows’’ or ‘‘knowing’’ must be construed accordingly. (2) For purposes of this Act, a person ought reasonably to have known or suspected
a fact if the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both—
(a) the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and
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(b) the general knowledge, skill, training and experience that he or she in fact has. (3) A reference in this Act to any act, includes an omission and ‘‘acting’’ must be
construed accordingly.
Objects of Act
3. The objects of this Act are to— (a) give effect to the Republic’s obligations concerning the trafficking of persons
in terms of international agreements; (b) provide for the prosecution of persons who commit offences referred to in this
Act and for appropriate penalties; (c) provide for the prevention of trafficking in persons and for the protection of
and assistance to victims of trafficking; (d) provide services to victims of trafficking; (e) provide for effective enforcement measures; (f) provide for the co-ordinated implementation, application and administration
of this Act, including the development of a draft national policy framework; and
(g) combat trafficking in persons in a co-ordinated manner.
CHAPTER 2
OFFENCES, PENALTIES AND EXTRA-TERRITORIAL JURISDICTION
Trafficking in persons
4. (1) Any person who delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person within or across the borders of the Republic, by means of—
(a) a threat of harm; (b) the threat or use of force or other forms of coercion; (c) the abuse of vulnerability; (d) fraud; (e) deception; (f) abduction; (g) kidnapping; (h) the abuse of power; (i) the direct or indirect giving or receiving of payments or benefits to obtain the
consent of a person having control or authority over another person; or (j) the direct or indirect giving or receiving of payments, compensation, rewards,
benefits or any other advantage, aimed at either the person or an immediate family member of that person or any other person in close relationship to that person, for the purpose of any form or manner of exploitation, is guilty of the offence of trafficking in persons. (2) Any person who— (a) adopts a child, facilitated or secured through legal or illegal means; or (b) concludes a forced marriage with another person,
within or across the borders of the Republic, for the purpose of the exploitation of that child or other person in any form or manner, is guilty of an offence.
Debt bondage
5. Any person who intentionally engages in conduct that causes another person to enter into debt bondage is guilty of an offence.
Possession, destruction, confiscation, concealment of or tampering with documents
6. Any person who has in his or her possession or intentionally destroys, confiscates, conceals or tampers with any actual or purported identification document, passport or
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other travel document of a victim of trafficking in facilitating or promoting trafficking in persons is guilty of an offence.
Using services of victims of trafficking
7. Any person who intentionally benefits, financially or otherwise, from the services of a victim of trafficking or uses or enables another person to use the services of a victim of trafficking and knows or ought reasonably to have known or suspected that such person is a victim of trafficking, is guilty of an offence.
Conduct facilitating trafficking in persons
8. (1) Any person who— (a) intentionally leases or subleases 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; or
(d) finances, controls or organises the commission of an offence under this Chapter,
is guilty of an offence. (2) (a)An electronic communications service provider operating in the Republic must
take all reasonable steps to prevent the use of its service for the hosting of information referred to in subsection (1)(c). (b)An electronic communications service provider that is aware or becomes aware of
any electronic communications which contain information referred to in subsection (1)(c) and which is stored upon or transmitted over its electronic communications system must—
(i) without delay report the electronic communications identity number from which those electronic communications originated and any other particulars available to such electronic communications service provider which can be used to identify the person or electronic communications service provider (including an electronic communications service provider operating outside the Republic) from who or from which those electronic communications originated, to the South African Police Service;
(ii) take such reasonable steps as are necessary to preserve evidence as may be required by the relevant investigation and prosecuting authorities, for purposes of investigation and prosecution by the relevant authorities; and
(iii) without delay take such reasonable steps as are necessary to prevent continued access to those electronic communications— (aa) by any of the customers of that electronic communications service
provider; or (bb) by any person if they are stored on the system of the electronic
communications service provider. (3) An electronic communications service provider which fails to comply with the
provisions of subsection (2)(a) or (b) is guilty of an offence. (4) Nothing in this section places a general obligation on an electronic communica-
tions service provider to— (a) monitor the data which it transmits or stores; or (b) actively seek facts or circumstances indicating an unlawful activity.
(5) An electronic communications service provider is not liable for any loss sustained by or damage caused to any person as a result of any action taken in good faith in terms of subsection (2)(b)(iii).
Liability of carriers
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
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known that the person is a victim of trafficking, is guilty of an offence. (2) A carrier who, on reasonable grounds, suspects that any of its passengers is a
victim of trafficking must immediately report that suspicion to a police official for investigation. (3) A carrier who fails to comply with the provisions of subsection (2) is guilty of an
offence. (4) A carrier is liable to pay the expenses incurred or reasonably expected to be
incurred in connection with the care, accommodation, transportation and repatriation or return of the victim to his or her country of origin or country or place from where he or she was trafficked, if the court finds, on a 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.
Involvement in offences under this Chapter
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 other person to commit,
an offence under this Chapter is guilty of an offence. (2) A person who is found guilty of an offence referred to in subsection (1) is liable,
on conviction, to the penalties for the offence in question, as provided for in section 13.
Liability of persons for offences under this Chapter
11. (1) It is no defence to a charge of contravening section 4, 5, 6, 7, 8, 9(1) or 10 that—
(a) a child who is a victim of trafficking or a person having control or authority over a child who is a victim of trafficking has consented to the intended exploitation, or the action which was intended to constitute an offence under this Chapter or that the intended exploitation or action did not occur, even if none of the means referred to in section 4(1)(a) to (j) have been used; or
(b) an adult person who is a victim of trafficking has consented to the intended exploitation, or the action which was intended to constitute an offence under this Chapter or that the intended exploitation or action did not occur, if one or more of the means referred to in section 4(1)(a) to (j) have been used.
(2) In order to establish liability in terms of section 4, 5, 6, 7, 8, 9(1) or 10 of an employer or principal, the conduct of an employee or agent of, or any other person acting on behalf of the employer or principal may be attributed to the employer or principal if that person is acting—
(a) within the scope of his or her employment; (b) within the scope of his or her actual or apparent authority; or (c) with the express or implied consent of a director, member or partner of the
employer or principal. (3) Subsection (2) does not exclude the liability of an employee or agent of, or any
other person acting on behalf of the employer or principal for committing an offence under this Chapter. (4) (a) A finding by a court that an employer or principal has contravened section 4,
5, 6, 7, 8, 9(1) or 10 serves as a ground for the revocation or cancellation of any licence or registration that the employer or principal may require in order to conduct its business. (b) The clerk or registrar of the court which makes the finding referred to in paragraph
(a) must, in writing, notify the South African authority that granted the licence or registration of the finding.
(c)The SouthAfrican authority that granted the licence or registration may review the licence or registration and, where necessary, revoke or cancel the licence or registration.
Extra-territorial jurisdiction
12. (1) A court of the Republic has jurisdiction in respect of an act committed outside the Republic which would have constituted an offence under this Chapter had it been committed in the Republic, regardless of whether or not the act constitutes an offence at the place of its commission, if the person to be charged—
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(a) is a citizen of the Republic; (b) is ordinarily resident in the Republic; (c) has committed the offence against a citizen of the Republic or a person who is
ordinarily resident in the Republic; (d) is, after the commission of the offence, present in the territory of the Republic,
or in its territorial waters or on board a ship, vessel, off-shore installation, a fixed platform or aircraft registered or required to be registered in the Republic;
(e) is, for any reason, not extradited by the Republic or if there is no application to extradite that person; or
(f) is a juristic person or a partnership registered in terms of any law in the Republic.
(2) Only a High Court has jurisdiction in respect of a person referred to in subsection (1)(d).
(3) A person who commits an offence referred to in subsection (1) is liable on conviction to the penalty prescribed for that offence. (4) (a) Subject to paragraph (b), the National Director of Public Prosecutions must, in
writing, designate an appropriate court in which to conduct a prosecution against any person accused of having committed an offence under this Chapter in a country outside the Republic as provided for in subsection (1). (b) For the purposes of determining the jurisdiction of a court to try the offence, the
offence is deemed to have been committed— (i) at the place where the accused person is ordinarily resident; or (ii) at the accused person’s principal place of business.
(5) The institution of a prosecution in terms of this section must be authorised in writing by the National Director of Public Prosecutions.
Penalties
13. A person convicted of an offence referred to in— (a) section 4(1) is, subject to section 51 of the Criminal Law Amendment Act,
1997 (Act No. 105 of 1997), liable to a fine not exceeding R100 million or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine or both;
(b) section 4(2) is liable to a fine not exceeding R100 million or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine or both;
(c) section 5, 7 or 23 is liable to a fine or imprisonment for a period not exceeding 15 years or both;
(d) section 6 or 8(1) is liable to a fine or imprisonment for a period not exceeding 10 years or both; or
(e) section 8(3), 9, 18(9) or 19(13) is liable to a fine or imprisonment for a period not exceeding five years or both.
Factors to be considered in sentencing
14. If a person is convicted of any offence under this Chapter, the court that imposes the sentence must consider, but is not limited to, the following aggravating factors:
(a) The significance of the role of the convicted person in the trafficking process; (b) previous convictions relating to the offence of trafficking in persons or related
offences; (c) whether the convicted person caused the victim to become addicted to the use
of a dependence-producing substance; (d) the conditions in which the victim was kept; (e) whether the victim was held captive for any period; (f) whether the victim suffered abuse and the extent thereof; (g) the physical and psychological effects the abuse had on the victim; (h) whether the offence formed part of organised crime; (i) whether the victim was a child; (j) the nature of the relationship between the victim and the convicted person;
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(k) the state of the victim’s mental health; and (l) whether the victim had any physical disability.
CHAPTER 3
STATUS OF FOREIGN VICTIMS OF TRAFFICKING REQUIRED TOASSIST IN INVESTIGATIONS AND PROSECUTIONS
Protective measures for purposes of investigation and prosecution in respect of foreign victims of trafficking
15. (1) Despite the provisions of the Immigration Act, the Director-General: Home Affairs may, in the prescribed manner and subject to the prescribed conditions, issue, a foreigner in respect of whom—
(a) a report has been made to a police official as provided for in section 19; and (b) the National Commissioner of the South African Police Service has, in
writing, confirmed to be a person who might be able to assist in a police investigation relating to an offence under Chapter 2,
a visitor’s visa in terms of section 11(1)(a) of the Immigration Act to remain in the Republic for a recovery and reflection period not exceeding three months which may be extended once in terms of subsection (4) for a further period not exceeding three months for the purpose of accessing the programmes referred to in section 26 with the view to enabling the foreigner to make informed decisions regarding his or her cooperation with law enforcement and prosecuting authorities in the investigation and prosecution of a case of trafficking in persons as referred to in section 16(1)(b). (2) If a foreigner referred to in subsection (1), after a period of 30 days after he or she
has been issued with a visitor’s visa to remain in the Republic for a recovery and reflection period, is unwilling or unable to co-operate with law enforcement and prosecuting authorities in the investigation of and the prosecution of a trafficker, an investigation into his or her circumstances must be conducted by the Director-General: Social Development in order to determine whether it is safe to repatriate him or her to his or her country of origin or the country from where he or she has been trafficked. (3) If a foreigner referred to in subsection (2) is still unwilling or unable to co-operate
with law enforcement and prosecuting authorities in the investigation of and the prosecution of a trafficker upon expiration of the visitor’s visa the person must be dealt with in terms of sections 31(2) and 32. (4) If the Director-General: Social Development is unable to complete an
investigation referred to in subsection (2) before the expiration of the recovery and reflection period, he or she must, in the prescribed manner, request the Director-General: Home Affairs to extend, in the prescribed manner, that period for a further period not exceeding three months. (5) The issuing of a visitor’s visa as provided for in subsection (1) does not prevent or
prejudice the competent authority from conducting any relevant investigation, provided that due regard is given to the emotional state of the victim. (6) A foreigner referred to in subsection (1) in respect of whom a decision by the
Director-General: HomeAffairs in terms of subsection (1) or (4) is pending, may not be deported.
Facilitation of police investigation or prosecution in case of foreign witnesses
16. (1) (a) The Director-General: Home Affairs may, despite the provisions of the Immigration Act, and subject to paragraph (b), issue a visitor’s visa in terms of section 11(1)(b)(iv) of the Immigration Act to a victim of trafficking if that person is present in the Republic and has agreed in writing to cooperate with the law enforcement or
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prosecuting authorities in the investigation of and the prosecution of a case of trafficking in persons, as the case may be. (b) The Director-General: Home Affairs may only issue a visitor’s visa in terms of
paragraph (a) if the National Commissioner of the South African Police Service or the National Director of Public Prosecutions, in writing, confirms that the person is required for purposes of a police investigation or criminal prosecution, as the case may be, and that the continued presence of the person in South Africa is essential for the successful prosecution of a person who is alleged to have committed an offence under Chapter 2.
(c) The Director-General: Home Affairs may despite the provisions of the ImmigrationAct, extend or withdraw a visitor’s visa referred to in paragraph (a) if he or she is requested in writing to do so by the National Commissioner of the South African Police Service or the National Director of Public Prosecutions in the prescribed manner. (d) The Director-General: Home Affairs may, despite the provisions of this
subsection, refuse to issue a visitor’s visa or the extension thereof if there are substantial and compelling reasons to do so.
(2)Avisitor’s visa referred to in subsection (1) may be issued to a victim of trafficking regardless of—
(a) his or her status; or (b) whether a visitor’s visa as provided for in section 15 was issued or has
expired. (3) The National Commissioner of the South African Police Service or the National
Director of Public Prosecutions must, in writing, request the Director-General: Home Affairs to withdraw a visitor’s visa issued in terms of this section when the need for that visitor’s visa no longer exists.
Application for rights of permanent residence in terms of section 31(2)(b) of Immigration Act
17. The National Commissioner of the South African Police Service or the National Director of Public Prosecutions may assist a foreign victim of trafficking who has in any manner rendered assistance to either the South African Police Service or the National ProsecutingAuthority before or during any criminal proceedings, to apply for the rights of permanent residence in terms of section 31(2)(b) of the ImmigrationAct, if, as a result of that victim’s assistance he or she may be harmed or killed if he or she is repatriated to his or her country of origin or the country from where he or she has been trafficked.
CHAPTER 4
IDENTIFICATION AND PROTECTION OF VICTIMS OF TRAFFICKING
Reporting of and dealing with child victim of trafficking
18. (1) (a) Despite any law, policy or code of conduct prohibiting the disclosure of personal information, any person who knows or ought reasonably to have known or suspected that a child is a victim of trafficking must immediately report that knowledge or suspicion to a police official for investigation. (b)A designated child protection organisation which comes into contact with a child
who is suspected of being a victim of trafficking and who has not been reported as provided for in paragraph (a), must immediately report that child to a police official for investigation, whereafter the provisions of subsections (5) and (6) apply. (2) Subsection (1) does not apply to the right to legal professional privilege as
between a legal practitioner and his or her client in respect of communications made in confidence between that legal practitioner and—
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(a) his or her client for the purposes of legal advice or litigation which is pending or contemplated or which has commenced; or
(b) a third party for the purposes of litigation which is pending or contemplated or which has commenced.
(3) A person referred to in subsection (1)— (a) must provide reasons for that knowledge or suspicion to a police official; (b) who makes the report in good faith, is not liable to civil or disciplinary action
on the basis of the report, despite any law, policy or code of conduct prohibiting the disclosure of personal information; and
(c) is entitled to have his or her identity kept confidential if his or her safety is at risk as a result of the report, unless the interests of justice require otherwise.
(4) A police official to whom a report has been made in terms of subsection (1) or section 8(1)(b) or (2)(b)(i) or 9(2) in respect of a child or a police official who knows or ought reasonably to have known or suspected that a child is a victim of trafficking—
(a) may where necessary, and despite the proviso contained in section 26 of the Criminal ProcedureAct, without a warrant, enter any premises if he or she, on reasonable grounds, believes that the safety of that child is at risk or that the child may be moved from those premises and may use such force as may be reasonably necessary to overcome any resistance against entry to the premises, including the breaking of any door or window of those premises, on condition that the police official must first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter those premises;
(b) must deal with that child in terms of section 110(4) of the Children’s Act, pending a police investigation into the matter; and
(c) may place that child in temporary safe care in terms of section 152 of the Children’s Act, pending the transfer of the child to a designated child protection organisation or provincial department of social development.
(5) The procedure provided for in section 110(5) to (8) of the Children’s Act applies in respect of a child who has been dealt with in terms of subsection (4)(b) or who has been referred in terms of section 22(2)(b) or section 33(b)(iv).
(6) The provincial department of social development must without delay, in the prescribed manner, assess whether the child referred to in subsection (5) is a victim of trafficking, after taking into account the prescribed information obtained from the South African Police Service. (7) A child who has been found to be a victim of trafficking in terms of subsection
(6)— (a) must be referred to a designated social worker for investigation in terms of
section 155(2) of the Children’s Act; and (b) may, pending such investigation, be placed in temporary safe care in terms of
section 151 of the Children’s Act. (8) A finding in terms of section 156 of the Children’s Act that an illegal foreign child
who is a victim of trafficking is a child in need of care and protection, serves as authorisation for allowing the child to remain in the Republic for the duration of the children’s court order. (9) A person who fails to comply with the provisions of subsection (1) is guilty of an
offence.
Reporting of and dealing with adult victim of trafficking
19. (1) (a) Despite any law, policy or code of conduct prohibiting the disclosure of personal information, any person who knows or ought reasonably to have known or suspected that an adult person who he or she comes into contact with during the execution of his or her duties, is a victim of trafficking, must immediately report that knowledge or suspicion to a police official for investigation. (b)An accredited organisation which comes into contact with an adult person who is
suspected of being a victim of trafficking and who has not been reported as provided for in paragraph (a), must immediately report that person to a police official, whereafter the provisions of subsections (8) to (12) apply.
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(2) Any person, other than the persons referred to in subsection (1)(a), who on reasonable grounds suspects that an adult person is a victim of trafficking, may report that suspicion to a police official for investigation. (3) Subsection (1) does not apply to the right to legal professional privilege as
between a legal practitioner and his or her client in respect of communications made in confidence between the legal practitioner and—
(a) his or her client for the purposes of legal advice or litigation which is pending or contemplated or which has commenced; or
(b) a third party for the purposes of litigation which is pending or contemplated or which has commenced.
(4) A person referred to in subsection (1) or (2)— (a) must provide reasons for that knowledge or suspicion to a police official; (b) who makes the report in good faith, is not liable to civil or disciplinary action
on the basis of the report, despite any law, policy or code of conduct prohibiting the disclosure of personal information; and
(c) is entitled to have his or her identity kept confidential if his or her safety is at risk as a result of the report, unless the interests of justice require otherwise.
(5) A police official to whom a report has been made in terms of subsection (1) or (2), or section 8(1)(b) or (2)(b)(i) or 9(2) in respect of an adult person or a police official who knows or ought reasonably to have known or suspected that an adult person is a victim of trafficking—
(a) (i) may where necessary, and despite the proviso contained in section 26 of the Criminal Procedure Act, without a warrant, enter any premises if he or she on reasonable grounds believes that the safety of that person is at risk or that the person may be moved from those premises and may use such force as may be reasonably necessary to overcome any resistance against entry to the premises, including the breaking of any door or window of those premises, on condition that the police official must first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter those premises;
(ii) must where necessary, as a measure of last resort and with the written consent of the person concerned, take him or her into protective custody if there is an immediate threat to the safety of that person, for a period until the station commander of the police station in question is satisfied that the threat has ceased to exist, whereafter the police official may place that person in temporary safe care referred to in subsection (6);
(b) must, within 24 hours, refer the person to an accredited organisation and notify the provincial department of social development of that person; and
(c) must inform the person suspected of being a victim of trafficking that he or she may apply for a visitor’s visa to remain in the Republic for a recovery and reflection period in terms of section 15 if he or she is a foreigner.
(6) A police official may place an adult person referred to in subsection (5) in temporary safe care, pending the transfer of that person to an accredited organisation. (7) A police official must, if it is reasonably possible to do so, render such assistance
to an adult person referred to in subsection (5), as may be necessary in the circumstances, including, but not limited to—
(a) assisting that person to obtain medical treatment; and (b) transporting that person to a place of temporary safe care or an accredited
organisation. (8) The provincial department of social development which has been notified as
provided for in subsection (5)(b), or to which an adult person has been referred as provided for in section 22(2)(b) or section 33(b)(v), must without delay, in the prescribed manner, assess whether the person concerned is a victim of trafficking, after taking into account the prescribed information obtained from the South African Police Service. (9)An accredited organisation which has an adult person who is a victim of trafficking
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in its care and whose safety is at risk, must, where necessary, as a measure of last resort and with the written consent of the person concerned, request the South African Police Service to take the person into protective custody, for a period until the station commander of the police station in question is satisfied that the threat has ceased to exist, whereafter that person must, without delay, be returned to the accredited organisation. (10) If the provincial department of social development, after having completed the
assessment referred to in subsection (8), is satisfied that the person is a victim of trafficking, the provincial head must immediately issue a letter of recognition, as prescribed, to the victim. (11) The provincial head may, at any time, withdraw a letter of recognition in the
prescribed manner if he or she receives information that a person in respect of whom a letter of recognition was issued, was not a victim of trafficking at the time the letter of recognition was issued. (12) An adult person who— (a) is suspected of being a victim of trafficking referred to in subsection (1); (b) in respect of whom a letter of recognition has—
(i) not been issued; or (ii) been withdrawn as provided for in subsection (11); or
(c) in respect of whom the 14-day period referred to section 20(1)(b) has not yet expired; or
(d) has lodged an appeal as provided for in section 20(1)(b), may be accommodated temporarily at an accredited organisation, pending a decision in terms of subsection (10) or section 20(2). (13) Any person who fails to comply with the provisions of subsection (1) is guilty of
an offence.
Appeals against decision of provincial head
20. (1) If a provincial head is not satisfied that the person referred to in section 19(8) is a victim of trafficking, or withdraws a letter of recognition in terms of section 19(11)—
(a) that provincial head must provide written reasons to the person affected by his or her decision; and
(b) the person affected by the decision not to issue a letter of recognition in terms of section 19(10) or to withdraw a letter of recognition in terms of section 19(11) may, within 14 days of being informed of that decision, lodge an appeal in the prescribed manner to the MEC having jurisdiction.
(2) The MEC must, within 30 days of the appeal being lodged, finalise the appeal in the prescribed manner. (3) If the appeal is unsuccessful or the affected person does not lodge an appeal, and
the affected person is an illegal foreigner, he or she must be referred by the provincial department of social development in the prescribed manner to the Department of Home Affairs, to be dealt with in terms of the Immigration Act.
Provision of health care services to a foreigner who is a victim of trafficking
21. A foreigner who is a victim of trafficking is entitled to public health care services as provided for in section 27 of the Constitution of the Republic of South Africa, 1996.
Criminal prosecution of victim of trafficking
22. (1) When deciding whether to prosecute a victim of trafficking, the prosecutor must give due consideration to whether the offence was committed as a direct result of the person’s position as a victim of trafficking.
(2) If, during a criminal prosecution of a person, the prosecutor on reasonable grounds suspects that that person is a victim of trafficking and that the offence was committed as a direct result of the person’s position as a victim of trafficking that prosecutor must—
(a) apply to the court for a postponement; and (b) in the prescribed manner, refer that person to the provincial department of
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social development, which must conduct an assessment in terms of section 18(6) or 19(8), as the case may be.
(3) A letter of recognition that an adult person is a victim of trafficking or a finding by the provincial department of social development after an assessment referred to in section 18(6) that a child is a victim of trafficking serves as a ground for the withdrawal of the criminal prosecution or the discharge of the victim of trafficking if the prosecutor is satisfied that the offence was committed as a direct result of the person’s position as a victim of trafficking. (4) No criminal prosecution may be instituted against a person referred to in
subsection (1) or be proceeded with against a person referred to in subsection (2) without the written authorisation of the Director of Public Prosecutions having jurisdiction.
Unauthorised access to and disclosure of information
23. Any person who— (a) allows any unauthorised person to gain access to a victim of trafficking or
suspected victim of trafficking or to a child in the care of that victim or suspected victim; or
(b) except for the purpose of giving effect to the provisions of thisAct or required by a competent court to do so, discloses— (i) the identity of a victim of trafficking or suspected victim of trafficking or
the identity of a child in the care of that victim of trafficking or suspected victim of trafficking;
(ii) the place where a victim of trafficking or suspected victim of trafficking or child in the care of that victim or suspected victim is accommodated or treated;
(iii) any information which could lead to the identification of a victim of trafficking or suspected victim of trafficking or child in the care of that victim or suspected victim or the place where the victim of trafficking or suspected victim of trafficking or child is accommodated or treated; or
(iv) any information which undermines or compromises or could undermine or compromise the investigation or prosecution of a case of trafficking,
is guilty of an offence .
CHAPTER 5
ACCREDITATION OF ORGANISATIONS TO PROVIDE SERVICES TO ADULT VICTIMS OF TRAFFICKING
Accreditation of organisations to provide services
24. (1) Subject to section 49(2), an adult victim of trafficking may only be referred in terms of section 19(5)(b) to an organisation that has been accredited in terms of this section and has a valid certificate of accreditation, referred to in subsection (4)(a).
(2) The Minister of Social Development must prescribe— (a) a system for the accreditation of organisations which will provide services to
adult victims of trafficking; and (b) the circumstances in which accredited organisations qualify for financial
assistance, within available resources. (3) The system for accreditation referred to in subsection (2) must contain— (a) criteria for the evaluation of the programmes offered by organisations to
ensure that they comply with the norms and minimum standards referred to in section 25;
(b) mechanisms to monitor the programmes in question; and (c) measures for the removal of organisations from the system, where appropri-
ate. (4) (a) The Director-General: Social Development must, in the manner prescribed by
the Minister of Social Development and within the time limits set out in the system of accreditation, consider all applications by organisations for accreditation and issue a certificate prescribed by the Minister of Social Development to each organisation that is accredited in terms of this section.
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(b) A certificate of accreditation referred to in paragraph (a) is valid for a maximum of four years from the date of accreditation. (5) A developmental quality assurance process must be conducted in the manner
prescribed by the Minister of Social Development in respect of each accredited organisation. (6) (a) The Director-General: Social Development must compile and maintain a list
containing the particulars of each accredited organisation or organisation placed on or removed from the system within 30 days of accreditation or removal. (b) The Director-General: Social Development must, without undue delay, provide a
copy of the list referred to in paragraph (a) when it is compiled and every time it is amended in accordance with paragraph (a) to—
(i) the relevant role players in his or her Department who are involved in the administration of this Act;
(ii) the National Director of Public Prosecutions who must distribute the list to all prosecutors; and
(iii) the National Commissioner of the South African Police Service, who must distribute the list to all relevant role players in the South African Police Service.
Norms and minimum standards
25. (1) The Minister of Social Development must prescribe norms and minimum standards for accredited organisations.
(2) The norms and minimum standards referred to in subsection (1) must deal with— (a) the safety of victims of trafficking, especially those at risk of harm; (b) access to and provision of adequate health care; (c) the provision of separate facilities for male and female victims of trafficking; (d) hygienic and adequate toilet facilities; (e) access to refuse disposal services or other adequate means of disposal of
refuse generated at the facility; (f) the drawing up of action plans for emergencies; and (g) the manner in which information—
(i) referred to in subsection (4) is to be collected and collated; and (ii) relating to a victim of trafficking’s particulars must be kept confidential.
(3) An accredited organisation that provides services to adult victims of trafficking who have children in their care must, in addition to the norms and minimum standards referred to in subsection (1), provide—
(a) a safe environment for children; (b) proper care for sick children; and (c) safe storage of anything that may be harmful to children.
(4) (a)An accredited organisation must, in the prescribed manner, collect information on victims of trafficking relating to—
(i) the number of foreign victims of trafficking who have accessed a programme referred to in section 26;
(ii) the number of South African citizens or permanent residents who are victims of trafficking and who have accessed a programme referred to in section 26;
(iii) the number of victims who have accessed a programme referred to in section 26 and who have not been reported to the South African Police Service;
(iv) the countries from which foreign victims have been trafficked; (v) the countries to which South African citizens or permanent residents have
been trafficked; (vi) the areas in the Republic to and from which victims have been trafficked; (vii) the purposes for which the victims have been trafficked;
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(viii) the methods used to recruit and transport the victims; (ix) the methods and routes used for trafficking the victims to and from and within
the Republic; (x) methods used to keep victims of trafficking in exploitative situations; and (xi) the types of travel documents that victims have used or attempted to use to
cross the borders of the Republic and how these documents were obtained. (b) An accredited organisation must provide an annual report on the information
referred to in paragraph (a) to the Director-General: Social Development on a date determined by him or her.
(c) The Director-General: Social Development must provide an annual report on the information referred to in paragraph (b) to the Director-General: Justice and Constitutional Development, as determined by him or her.
Programme offered by accredited organisation
26. (1) An accredited organisation— (a) must offer a programme aimed at—
(i) the provision of accommodation to adult victims of trafficking; (ii) the provision of counselling to adult victims of trafficking; and (iii) the reintegration of adult victims of trafficking into their families and
communities; and (b) may offer a programme aimed at—
(i) the provision of rehabilitation and therapeutic services to adult victims of trafficking; or
(ii) the provision of education and skills development training to adult victims of trafficking.
(2) An accredited organisation may refer an adult victim of trafficking to an organisation that offers a programme referred to in subsection (1)(b) for purposes of obtaining those rehabilitation and therapeutic services or education and skills development training. (3) An accredited organisation that provides services to an adult victim of trafficking
who has a child in his or her care must offer a programme aimed at the reception, care and development of that child. (4) Subject to subsection (5), a child referred to in subsection (3) may be cared for at
any other premises only with the explicit consent of the adult victim in whose care he or she is. (5) A child referred to in subsection (3) must be referred to a designated child
protection organisation or the provincial department of social development for investigation in terms of section 155(2) of the Children’s Act, to determine whether the child is in need of care and protection.
Access to programme offered by accredited organisation
27. A person who has been issued with a letter of recognition is entitled to access a programme offered by an accredited organisation.
Plan to address needs of victim of trafficking
28. (1) An accredited organisation must, having due regard to the views of a person who has been issued with a letter of recognition, draw up a plan to address the immediate and reasonable future needs of that victim.
(2) The plan referred to in subsection (1), which must conform as far as possible to the form as prescribed, must include an exit plan and be brought to the attention of the victim and be signed by him or her.
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CHAPTER 6
COMPENSATION
Compensation to victim of trafficking
29. (1) (a)Acourt may, on its own accord or at the request of the victim of trafficking or the prosecutor, in addition to any sentence which it may impose in respect of any offence under Chapter 2, order a person convicted of that offence to pay appropriate compensation to any victim of the offence for—
(i) damage to or the loss or destruction of property, including money; (ii) physical, psychological or other injury; (iii) being infected with a life-threatening disease; or (iv) loss of income or support,
suffered by the victim as a result of the commission of that offence, whereafter the provisions of section 300(1)(a), (2), (3) and (4) of the Criminal Procedure Act apply with the necessary changes required by the context with regard to an order made under this section.
(b)Appropriate compensation includes expenses reasonably expected to be incurred in relation to the matters referred to in paragraph (a)(i) to (iv).
(2) In cases where the amount of the damage, injury or loss suffered exceeds an order for compensation which can be made by a magistrate’s court in terms of subsection (1), a civil action may be instituted by the victim for the recovery of the excess.
Compensation to State
30. (1) The court may— (a) in addition to any sentence, including any sentence of imprisonment, which it
may impose in respect of any offence under Chapter 2; or (b) in addition to any order for the payment of compensation to a victim in terms
of section 29; or (c) in terms of section 9(4); and (d) upon application by the prosecutor,
make an order for payment by the convicted person or the carrier as provided for in section 9(4) to the Criminal Assets Recovery Account established under section 63 of the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998), of an amount in compensation for expenses incurred or reasonably expected to be incurred in connection with the care, accommodation, transportation, return and repatriation of the victim of the offence. (2)An order for the payment of compensation as provided for in subsection (1) has the
effect of a civil judgment of a magistrate’s court.
CHAPTER 7
RETURN AND REPATRIATION OF VICTIMS OF TRAFFICKING
Repatriation of victim of trafficking from Republic
31. (1) The Director-General: Social Development may not repatriate a foreign child who is a victim of trafficking to his or her country of origin or the country from where he or she has been trafficked without giving due consideration to the—
(a) best interests of the child standard as provided for in section 7 of the Children’s Act;
(b) safety of the child during the repatriation process;
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(c) availability and suitability of care arrangements and the safety of the child in the country to which the child is to be repatriated; and
(d) possibility that the child might be harmed or killed. (2) The Director-General: Home Affairs— (a) may not repatriate an adult who is a victim of trafficking to his or her country
of origin or the country from where he or she has been trafficked without giving due consideration to the— (i) safety of the person during the repatriation process; (ii) safety of the person in the country to which the person is to be
repatriated; and (iii) possibility that the person might be harmed or killed; and
(b) must— (i) before repatriating a person referred to in paragraph (a) to his or her
country of origin or the country from where he or she has been trafficked, request the Director-General: Social Development to take reasonable steps as provided for in section 32(a); and
(ii) inform a person referred to in paragraph (a), in the prescribed manner, of any arrangements that have been made for his or her reception in the country to which he or she is to be repatriated.
(3) This section does not prohibit the voluntary repatriation of an adult who is a victim of trafficking to his or her country of origin or the country from where he or she has been trafficked on condition that the victim has been given—
(a) information on the protective measures offered to victims of trafficking in terms of this Act; and
(b) a clear explanation of the procedures to be followed in respect of repatriation.
Assistance to foreign victim of trafficking
32. The Director-General: Social Development must— (a) take reasonable steps to find suitable family members or an institution or
organisation that renders assistance to victims of trafficking in the country to which a person referred to in section 31(1) or (2) is to be repatriated and that is willing to provide assistance to such a person; and
(b) without undue delay, provide the Director-General: Home Affairs with information in respect of a request made in terms of section 31(2)(b)(i).
Repatriation of suspected victim of trafficking to Republic
33. With due regard to the safety of the person and without delay— (a) the Director-General: International Relations and Co-operation must—
(i) in co-operation with the Director-General: Social Development assess the risks to the safety and life of a person who is a citizen or permanent resident of the Republic and who is suspected of being a victim of trafficking, if he or she is repatriated to the Republic;
(ii) facilitate the repatriation of a person referred to in subparagraph (i) to the Republic; and
(iii) advise the Director-General: Home Affairs on measures to secure the reception of a person referred to in subparagraph (i) at a South African port of entry;
(b) the Director-General: Home Affairs must— (i) issue travel documents or other authorisations as may be necessary to
enable that person to travel to and enter the Republic; (ii) where necessary, take measures to secure the reception of a person
referred to in paragraph (a) at a South African port of entry; (iii) at the request of another State that is a party to the UN Protocol to
Prevent, Suppress and Punish Trafficking in Persons or to an agreement relating to trafficking in persons to which the Republic is a party, verify
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that a person who is suspected of being a victim of trafficking is a citizen or permanent resident of the Republic;
(iv) upon entry into the Republic of a child who is suspected of being a victim of trafficking refer the child to a designated child protection organisation or provincial department of social development; and
(v) upon entry into the Republic of a person who is suspected of being an adult victim of trafficking refer the person to the provincial department of social development.
Return of adult victim of trafficking within Republic
34. (1) An accredited organisation may not return an adult victim of trafficking to the place within the Republic from where he or she was trafficked, without giving due consideration to the—
(a) safety of the person during the process of returning him or her; and (b) possibility that the person might be harmed, killed or trafficked again if
returned to that place. (2) An accredited organisation must— (a) take reasonable steps to find suitable family members to whom a victim
referred to in subsection (1) can be returned and who are willing to provide assistance to the victim, taking into consideration the views of the victim; and
(b) if the victim in question does not have the financial means to travel to the place from where he or she was trafficked, in the prescribed manner, facilitate the return of the victim to the place in question.
Escorting of child victim of trafficking
35. (1) If it is considered to be in the best interests of a child who has been trafficked, the Director-General: Social Development must authorise an adult at State expense to escort the child from the place where the child was found to the place within the Republic from where the child was trafficked or to the child’s country of origin or the country from where the child was trafficked. (2) The Director-General may not act in terms of subsection (1) unless he or she is
satisfied that the parent, guardian or other person who has parental responsibilities and rights in respect of the child does not have the financial means to travel to the place where the child is in order to escort the child back.
CHAPTER 8
GENERAL PROVISIONS
Trafficking of child by parent, guardian or other person who has parental responsibilities and rights in respect of child
36. (1) If a children’s court has reason to believe that the parent or guardian of a child or any other person who has parental responsibilities and rights in respect of a child, has trafficked the child, the court may—
(a) suspend all the parental responsibilities and rights of that parent, guardian or other person; and
(b) place that child in temporary safe care in terms of section 152 of the Children’s Act,
pending an inquiry by a children’s court. (2) Any action taken by a children’s court in terms of subsection (1) does not exclude
a person’s liability for committing any offence under Chapter 2 of this Act.
International co-operation
37. (1) The President may on the conditions as he or she deems fit— (a) enter into an agreement with a foreign State that is not a State Party to the UN
Protocol to Prevent, Suppress and Punish Trafficking in Persons in respect of any matter pertaining to trafficking in persons; or
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(b) enter into an agreement with a foreign State that is a State Party to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons in respect of any matter pertaining to trafficking in persons for the purpose of supplement- ing the provisions of that protocol or to facilitate the application of the principles contained therein.
(2) An agreement referred to in subsection (1) may not be in conflict with the provisions of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. (3) The President may agree to any amendment or revocation of an agreement
referred to in subsection (1). (4) An agreement referred to in subsection (1) or any amendment or revocation
thereof, is not of any force or effect until that agreement, amendment or revocation has been approved by Parliament.
Legitimacy and validity of documents
38. The Director-General: HomeAffairs must, at the request of another State that is a party to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons or to an agreement relating to trafficking in persons, verify, within a reasonable time, the legitimacy and validity of travel or identity documents issued or purported to have been issued by the Department of Home Affairs and suspected of being used in the commission of an offence under Chapter 2.
Annual report on abuse or deliberate neglect of child and findings by children’s court that child is in need of care and protection
39. The Director-General: Social Development must submit to the Director-General: Justice and Constitutional Development, as determined by him or her, an annual report on all cases of abuse or deliberate neglect of a child and all findings by a children’s court that a child is in need of care and protection because of abuse or deliberate neglect of the child as contained in Part A of the National Child Protection Register provided for in Part 2 of Chapter 7 of the Children’s Act insofar as those cases and findings relate to child victims of trafficking.
CHAPTER 9
ADMINISTRATION OFACT
National Policy Framework
40. (1) The Minister must, after consultation with the Minister in The Presidency responsible for performance monitoring and evaluation, the Ministers of Finance, Home Affairs, Health, International Relations and Cooperation, Labour, Police, Social Development, State Security, andWomen, Children and People with Disabilities and the National Director of Public Prosecutions approve a national policy framework, relating to all matters dealt with in this Act, in order to—
(a) ensure a uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters relating to the trafficking of persons;
(b) guide the implementation and administration of this Act; and (c) enhance service delivery as envisaged in thisAct by the development of a plan
within available resources. (2) The Minister must— (a) within one year after the commencement of this Act, approve and table the
policy framework in Parliament; (b) publish the policy framework in the Gazette within two months after it has
been tabled in Parliament; (c) review the policy framework within three years after its publication in the
Gazette and at least once every five years thereafter; and
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(d) amend the policy framework when required, in which case the amendments must be tabled in Parliament and published in the Gazette within two months after it has been tabled in Parliament.
Coordination of responsibilities, functions and duties relating to implementation of Act
41. (1) The Director-General: Justice and Constitutional Development, after consultation with the National Commissioner of the South African Police Service, the National Director of Public Prosecutions, the Chief Executive Officer of the Government Communication and Information System, the Commissioner of the South African Revenue Service and the Directors-General: Health, Home Affairs, Interna- tional Relations and Cooperation, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities, is responsible for—
(a) developing a draft national policy framework, referred to in section 40(1), which must include guidelines for— (i) the implementation of the priorities and strategies contained in the
national policy framework; (ii) measuring progress on the achievement of the national policy framework
objectives; (iii) ensuring that the different organs of state comply with the roles and
responsibilities allocated to them in terms of the national policy framework and this Act; and
(iv) monitoring the implementation of the national policy framework and this Act;
(b) the establishment of an integrated information system to facilitate the effective monitoring and implementation of this Act and to recommend interventions relating to trafficking in persons by collating and analysing the information obtained in terms of sections 25(4)(c), 39, 44(1)(d), 44(3), 44(5)(c), 44(7)(c) and 44(9)(c) with the view to determining, among others— (i) from which countries victims are being trafficked to the Republic; (ii) to which countries South African citizens and other residents are being
trafficked; (iii) the nationality of victims transiting the Republic and the countries to
which they are being trafficked; (iv) the number of victims that have been repatriated to the Republic and the
countries to which they were trafficked; (v) the areas in the Republic to and from which victims are being trafficked; (vi) the purposes for which persons who have been identified as victims of
trafficking have been trafficked; (vii) the profiles of the traffickers and their victims, including the age, gender,
nationality and sex of the victims; (viii) which routes are used by traffickers to cross the borders of the Republic; (ix) which routes are used by traffickers to enter the countries to which South
African citizens and other residents were trafficked; (x) the methods used by traffickers to recruit and transport their victims; (xi) the methods and routes used for trafficking victims within the Republic; (xii) the methods used by traffickers to keep victims in exploitative situations; (xiii) the types of travel documents traffickers and their victims have used or
attempted to use to cross the borders of the Republic and to enter the countries to which South African citizens and other residents were trafficked and how these documents were obtained;
(xiv) whether there is a link between trafficking operations and those involved in other forms of organised crime;
(xv) the number of trafficking prosecutions, convictions and the form of sentences imposed on perpetrators;
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(xvi) the number of victims of trafficking who are awarded compensation orders in terms of section 29 of the Act; and
(xvii) the number of cases the courts refrained from providing compensation orders and the reasons for doing so:
Provided that information which identifies victims of trafficking must be kept confidential; (c) developing and reviewing guidelines on the identification of victims of
trafficking and traffickers; and (d) establishing public awareness programmes or other measures for the
prevention and combating of trafficking in persons designed to— (i) inform and educate members of the public, especially those who are
vulnerable or at risk of becoming victims of trafficking, foreigners who apply for South African visas who may be victims of trafficking, and South African citizens or permanent residents who apply for South African passports or who depart abroad, on issues relating to trafficking in persons, including—
(aa) common recruitment techniques used by traffickers; (bb) practices used to keep victims of trafficking in exploitative
situations; (cc) the forms of abuse to which victims of trafficking may be
subjected; and (dd) organisations, institutions or law enforcement agencies that
may be approached for assistance or information; (ii) inform and educate victims of trafficking on—
(aa) their rights as victims; (bb) legal or other measures in place to ensure their safety,
recovery, return and repatriation; and (cc) organisations, institutions or law enforcement agencies that
may be approached for assistance of information; and (iii) discourage the demand for and the supply of victims of trafficking that
foster the exploitation of those victims, especially women and children. (2) (a) The programmes or other measures referred to in subsection (1)(d) must—
(i) include appropriate measures aimed at reaching rural communities; (ii) where possible, be provided in a language understood by the persons at whom
they are directed; and (iii) be reviewed every second year in order to determine their effectiveness.
(b) The Director-General: Justice and Constitutional Development must take all reasonable steps within available resources to ensure that the programmes or other measures referred to in subsection (1)(d) are implemented throughout the Republic. (3) The Director-General: Justice and Constitutional Development may, after
consultation with the National Commissioner of the South African Police Service, the National Director of Public Prosecutions, the Chief Executive Officer of the Government Communication and Information System, the Commissioner of the South African Revenue Service and the Directors-General: Health, Home Affairs, Interna- tional Relations and Cooperation, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities make recommendations to the Minister with regard to the amendment of the national policy framework. (4) The Minister may make regulations establishing and regulating the functioning of
a mechanism to facilitate the implementation of this Act and to coordinate the responsibilities, functions and duties referred to in this section.
Report to Parliament
42. The Minister must, after consultation with the Minister in The Presidency responsible for performance monitoring and evaluation, the Ministers of Home Affairs, International Relations and Cooperation, Labour, Police, Social Development, State
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Security andWomen, Children and People with Disabilities and the National Director of Public Prosecutions—
(a) within one year after the commencement of this Act, submit— (i) reports to Parliament by each Department or institution referred to in this
section on the implementation of this Act; and (ii) a report to Parliament reflecting information relating to trafficking in
persons referred to in subsection 41(1)(b); and (b) every year thereafter submit reports referred to in paragraph (a)(i) and a report
referred to in paragraph (a)(ii) to Parliament.
Regulations
43. (1) (a) The Minister must make regulations regarding the manner in which prosecutors must refer children and adult persons suspected of being victims of trafficking for assessment as provided for in section 22(2)(b).
(b) The Minister may make regulations regarding the establishment and regulation of a mechanism to facilitate the implementation of thisAct as provided for in section 41(4). (2) The Minister of Home Affairs must make regulations regarding— (a) the manner in which a foreigner referred to in section 15(1) will be issued with
a visitor’s visa to remain in the Republic for a recovery and reflection period and the conditions upon which that visa is issued, as provided for in section 15(1);
(b) the manner in which the Director-General: Social Development must request an extension of the recovery and reflection period as provided for in section 15(4);
(c) the manner in which any extension of the recovery and reflection period must be granted as provided for in section 15(4); and
(d) the manner in which a person must be informed of arrangements that have been made for his or her reception in the country to which he or she is to be repatriated as provided for in section 31(2)(b)(ii).
(3) The Minister of Social Development must make regulations regarding— (a) the assessment of a person to determine whether he or she is a victim of
trafficking as provided for in sections 18(6) and 19(8) as well as the information to be obtained from the SouthAfrican Police Service as provided for in those subsections;
(b) the letter of recognition to be issued to a person who has been found to be a victim of trafficking as provided for in section 19(10);
(c) the manner in which a provincial head may withdraw a letter of recognition as provided for in section 19(11);
(d) the manner in which a person must lodge an appeal as provided for in section 20(1)(b);
(e) the manner in which the MEC must deal with an appeal as provided for in section 20(2);
(f) the manner in which the provincial department of social development must refer a person referred to in section 20(3) to the Department of HomeAffairs;
(g) the system of accreditation of organisations to provide services to adult victims of trafficking as provided for in section 24(2)(a);
(h) the circumstances in which accredited organisations qualify for financial assistance as provided for in section 24(2)(b);
(i) the manner in which the applications for accreditation of organisations must be considered and the form of the certificate of accreditation to be issued to an organisation which provides services to adult victims of trafficking as provided for in section 24(4)(a);
(j) the manner in which the developmental quality assurance process must be conducted in respect of each accredited organisation, as provided for in section 24(5);
(k) the norms and minimum standards for accredited organisations as provided for in section 25(1);
(l) the manner in which information on victims of trafficking must be collected as provided for in section 25(4);
(m) the form of the plan referred to in section 28(2); and (n) the manner in which an adult victim of trafficking is to be returned as provided
for in section 34(2)(b).
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(4) Any regulations made under this section— (a) must be submitted to Parliament for approval 60 days prior to publication
thereof in the Gazette; (b) which are not approved within the 60-day period referred to in paragraph (a)
are deemed to have been approved by Parliament; and (c) which may result in expenditure for the State, must be made in consultation
with the Minister of Finance.
National instructions and directives
44. (1) (a) The Director-General: Justice and Constitutional Development must issue directives regarding the following matters with which all police officials, members of the prosecuting authority and officials of the Departments of Home Affairs, Labour and Social Development must comply in the execution of their functions in terms of thisAct, after consultation with the National Commissioner of the South African Police Service, the National Director of Public Prosecutions, the Chief Executive Officer of the Government Communication and Information System, the Commissioner of the South African Revenue Service and the Directors-General: Health, Home Affairs, Interna- tional Relations and Cooperation, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities, where such consultation is necessary and relevant:
(i) The manner in which the reporting of cases related to trafficking in persons must be dealt with;
(ii) measures to be taken in instances where foreign victims of trafficking are not conversant with any of the official languages of the Republic; and
(iii) measures to be taken to ensure the safety of victims of trafficking or other potential witnesses if there is a likelihood that harm might result to them as a result of the reporting and consequent investigation of and prosecution of the case.
(b) The Minister must submit all directives provided for in paragraph (a) to Parliament 30 days before they are issued. (c) The Director-General: Justice and Constitutional Development must, after the
expiry of the 30-day period, publish the directives on the website of the Department of Justice and Constitutional Development.
(d) The functionaries referred to in paragraph (a) must provide any relevant information to the Director-General: Justice and Constitutional Development as he or she may require in preparing the directives referred to in paragraph (a).
(2) The National Commissioner of the South African Police Service must issue national instructions as provided for in section 25 of the South African Police Service Act, 1995 (Act No. 68 of 1995), regarding the following matters with which all police officials must comply in the execution of their functions in terms of this Act, after consultation with the Directors-General: Health, Home Affairs, International Relations and Cooperation, Justice and Constitutional Development, Labour, Social Develop- ment, State Security Agency and Women, Children and People with Disabilities, the Chief Executive Officer: Government Communication and Information System, the Commissioner of the South African Revenue Service and the National Director of Public Prosecutions, where such consultation is necessary and relevant:
(a) The division or divisions within the police to be tasked with the investigation of trafficking cases;
(b) the manner in which trafficking cases are to be investigated; (c) the circumstances in which consultation with the prosecuting authority is
required with the view to guiding the investigation of trafficking cases for purposes of obtaining the required evidence and to identify relevant witnesses;
(d) measures to be taken in order to ensure the detection of trafficking in persons at South African ports of entry and borders;
(e) the kind of information that must be obtained from a victim of trafficking with the view to provide such information to the prosecuting authority for purposes of determining the quantum of the damages suffered by the victim for which he or she may claim compensation in terms of section 29; and
(f) the collection and analysis of information on reported cases of trafficking in persons, including information relating to— (i) the countries from which victims are being trafficked to the Republic; (ii) the countries to which South African citizens and other residents are
being trafficked;
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(iii) the nationality of victims transiting the Republic and the countries to which they are being trafficked;
(iv) the areas in the Republic to and from which victims are being trafficked; (v) the purposes for which the persons who have been identified as victims
of trafficking have been trafficked; (vi) the profiles of the traffickers and their victims, including their age,
gender, nationality and sex; (vii) the routes used by traffickers to enter and exit the Republic; (viii) the methods used by traffickers to recruit and transport their victims; (ix) the methods used by traffickers to keep victims in exploitative situations; (x) the methods and routes used for trafficking victims within the Republic; (xi) the types of travel documents that traffickers and their victims have used
or attempted to use to cross the borders of the Republic and how those documents were obtained; and
(xii) the link between trafficking operations and those involved in other forms of organised crime.
(3) The National Commissioner of the South African Police Service must provide an annual report on the information referred to in subsection (2)(f) or any other relevant information to the Director-General: Justice and Constitutional Development, as determined by him or her. (4) The Director-General: Home Affairs must, after consultation with the Directors-
General: Health, International Relations and Cooperation, Justice and Constitutional Development, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities, the Chief Executive Officer: Government Communication and Information System, the National Director of Public Prosecutions and the National Commissioner of the South African Police Service, where such consultation is necessary and relevant, issue directives regarding the collection and analysis of information on victims of trafficking who have been repatriated from the Republic in terms of section 31 and victims who have been repatriated to the Republic in terms of section 33, relating to—
(a) the number of victims who have been repatriated to the Republic and the countries to which they have been trafficked;
(b) the profiles of the victims, including the age, gender, nationality and sex of the victims;
(c) the purposes for which the victims were trafficked; (d) the routes used by traffickers to exit the Republic and to enter the countries to
which the victims were trafficked; (e) the methods used by traffickers to recruit and transport the victims; (f) the methods used by traffickers to keep victims in exploitative situations; and (g) the types of travel documents that traffickers and their victims have used or
attempted to use to exit the Republic and to enter the countries to which the victims were trafficked and how these documents were obtained.
(5) (a) The Minister of Home Affairs must submit all directives provided for in subsection (4) to Parliament 30 days before they are issued. (b) The Director-General: Home Affairs must, after the expiry of the 30-day period,
publish the directives on the website of the Department of Home Affairs. (c) The Director-General: Home Affairs must provide an annual report on the
information referred to in subsection (4) or any other relevant information to the Director-General: Justice and Constitutional Development, as determined by him or her.
(6) The Director-General: Social Development must issue directives regarding the following matters with which all police officials, members of the prosecuting authority and other functionaries must comply in the execution of their functions in terms of this Act, after consultation with the Directors-General: Health, Home Affairs, International Relations and Cooperation, Justice and Constitutional Development, Labour, State Security Agency and Women, Children and People with Disabilities, the Chief Executive Officer: Government Communication and Information System, the National
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Director of Public Prosecutions, the Commissioner of the South African Revenue Service and the National Commissioner of the SouthAfrican Police Service, where such consultation is necessary and relevant:
(a) The manner in which victims of trafficking must be identified, interviewed and treated, with particular attention to the vulnerability of children; and
(b) the referral of victims of trafficking to social, health care and psychological services.
(7) (a) The Minister of Social Development must submit all directives provided for in subsection (6) to Parliament 30 days before they are issued. (b) The Director-General: Social Development must, after the expiry of the 30-day
period, publish the directives on the website of the Department of Social Development. (c) The Director-General: Social Development must provide an annual report on any
relevant information to the Director-General: Justice and Constitutional Development, as determined by him or her.
(8) The National Director of Public Prosecutions must issue directives regarding all matters which are necessary or expedient to be provided for and which are to be complied with by all members of the prosecuting authority who are tasked with the institution and conducting of prosecutions in cases relating to trafficking in persons, in consultation with theMinister and after consultation with the Directors-General: Health, Home Affairs, International Relations and Cooperation, Justice and Constitutional Development, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities and the National Commissioner of the South African Police Service, the Commissioner of the SouthAfrican Revenue Service and the Chief Executive Officer: Government Communication and Information System, where such consultation is necessary and relevant, including the following:
(a) the manner in which cases relating to trafficking in persons should be dealt with;
(b) the criteria to be used and the circumstances in which the prosecution must apply to court for an order that a witness and, in particular, child witnesses give evidence by means of closed circuit television as provided for in section 158 of the Criminal Procedure Act, if the court does not make an order on its own accord in terms subsection (2)(a) of that section or if an application in terms of subsection (2)(b) of that section is not made;
(c) the criteria to be used and the circumstances in which the prosecution must request the court to consider appointing a competent person as an intermedi- ary as provided for in section 170A of the Criminal Procedure Act, in respect of a child witness;
(d) the circumstances in which the prosecution must request the court to consider directing that the proceedings may not take place in open court as provided for in section 153 of the Criminal Procedure Act;
(e) the circumstances in which the prosecution must request the court to consider directing that the identity of a witness should not be revealed or that it should not be revealed for a period specified by the court as provided for in section 153 of the Criminal Procedure Act;
(f) the circumstances in which the prosecution must request the court to consider prohibiting the publication of the identity of the complainant in the case as provided for in section 154 of the Criminal Procedure Act or of the complainant’s family, including the publication of information that may lead to the identification of the complainant or the complainant’s family;
(g) the need to inform victims of trafficking about their right to and the process to claim compensation in terms of section 29;
(h) the kind of information that must be obtained from a victim of trafficking for purposes of determining the quantum of the damages suffered by the victim for which he or she may claim compensation in terms of section 29; and
(i) the collection and analysis of information relating to— (i) the number of trafficking prosecutions, convictions and the form of
sentences imposed on traffickers; (ii) the number of victims of trafficking awarded compensation orders in
terms of section 29; and (iii) the number of cases where the courts did not provide compensation
orders in terms of section 29 and the reasons for doing so.
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(9) (a) The Minister must submit any directives provided for in subsection (8) to Parliament 30 days before they are issued. (b) The National Director of Public Prosecutions must, after the expiry of the 30-day
period, publish the directives on the website of the National Prosecuting Authority. (c)The National Director of Public Prosecutions must provide an annual report on the
information referred to in subsection (8)(i) or any other relevant information to the Director-General: Justice and Constitutional Development as determined by him or her. (10) The Director-General: Justice and Constitutional Development, the National
Commissioner of the South African Police Service, the National Director of Public Prosecutions and the Directors-General: HomeAffairs, Labour and Social Development must each develop training courses which must—
(a) include training, also incorporating social context training, on the national instructions or directives, as the case may be, referred to in this section; and
(b) provide for and promote the use of uniform norms, standards and procedures, to ensure that all police officials, prosecutors and other functionaries are able to deal with matters relating to trafficking in persons in an appropriate, efficient and sensitive manner. (11) The national instructions or directives referred to in this section must provide that
adequate disciplinary steps are taken against any police official, prosecutor or other functionary who fails to comply with any duty imposed on him or her in terms of thisAct or the national instructions or directives issued in terms of this Act. (12) Any national instruction or directive issued under this section may be amended
or withdrawn in like manner.
Delegation of powers and assignment of duties by Director-General to senior official
45. (1) Any Director-General referred to in this Act may, subject to subsection (4), delegate any power or assign any duty conferred on or assigned to him or her by thisAct to an official in the employ of his or her Department above the rank of director. (2) A delegation or assignment in terms of subsection (1)— (a) is subject to any limitations, conditions and directions which a Director-
General may impose; (b) must be in writing; and (c) does not divest a Director-General of the responsibility concerning the
exercise of the power or the performance of the duty. (3) A Director-General may— (a) confirm, vary or revoke any decision taken in consequence of a delegation or
assignment in terms of this section, subject to any rights that may have accrued to a person as a result of the decision; and
(b) at any time withdraw a delegation or assignment. (4) A Director-General may not delegate a power or assign a duty conferred on or
assigned to him or her by section 15, 16, 31, 38, 39, 41 or 44 of this Act.
Assignment of powers and duties by Director-General to provincial head
46. (1) Any Director-General referred to in this Act may, subject to subsection (4), assign any power or duty conferred on or assigned to him or her by this Act to a provincial head of the corresponding provincial department, by agreement with that provincial head. (2) An assignment in terms of subsection (1)— (a) is subject to any limitations, conditions and directions which a Director-
General may impose; (b) must be in writing;
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(c) may include the power to delegate or assign; and (d) does not divest a Director-General of the responsibility concerning the
exercise of the power or the performance of the duty. (3) A Director-General may— (a) confirm, vary or revoke any decision taken in consequence of an assignment
in terms of this section, subject to any rights that may have accrued to a person as a result of the decision; and
(b) at any time withdraw an assignment. (4) A Director-General may not assign a power or duty conferred on or assigned to
him or her by section 15, 16, 31, 38, 39, 41 or 44 of this Act.
Delegation of powers and assignment of duties by provincial head
47. (1) A provincial head to whom a power or duty has been assigned in terms of section 46 or upon whom a power or duty has been conferred or assigned by this Act, may, subject to subsection (4), delegate that power or assign that duty to an officer at director level or above in the employ of the provincial department concerned.
(2) A delegation or assignment in terms of subsection (1)— (a) is subject to any limitations, conditions and directions which the provincial
head may impose; (b) must be in writing; and (c) does not divest a provincial head of the responsibility concerning the exercise
of the power or the performance of the duty. (3) A provincial head may— (a) confirm, vary or revoke any decision taken in consequence of a delegation or
assignment in terms of this section, subject to any rights that may have accrued to a person as a result of the decision; and
(b) at any time withdraw a delegation or assignment. (4) A provincial head may not delegate a power or assign a duty conferred on or
assigned to him or her by section 19(10) or (11).
CHAPTER 10
MISCELLANEOUS MATTERS
Laws repealed or amended
48. The laws referred to in the second column of the Schedule are hereby repealed or amended to the extent indicated in the third column of the Schedule.
Transitional arrangements
49. (1) Criminal proceedings instituted in terms of any law, in respect of conduct which constitutes an offence provided for in Chapter 2, but which were instituted prior to the commencement of thisAct, must be continued and concluded as if thisAct had not been passed. (2) Every organisation which existed at the time of the commencement of thisAct and
which — (a) provided services to victims of trafficking; and (b) the Minister of Social Development has listed by notice in the Gazette,
may continue to operate and provide such services after the commencement of this Act until the first application procedure as provided for in section 24(4)(a) has been finalised.
Short title and commencement
50. (1) ThisAct is called the Prevention and Combating of Trafficking in PersonsAct, 2013, and takes effect on a date fixed by the President by proclamation in the Gazette.
(2) Different dates may be fixed in respect of different provisions of this Act.
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SCHEDULE
Laws repealed or amended
(Section 48)
Number and year of law
Short title Extent of repeal or amendment
Act No. 68 of 1969 Prescription Act, 1969
The amendment of section 12 by the substitution for subsection (4) of the following subsection:
‘‘(4) Prescription shall not com- mence to run in respect of a debt based on the commission of an al- leged sexual offence as contemplated in sections 3, 4, 17, 18(2), 20(1), 23, 24(2) and 26(1) [and 71(1) or (2)] of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, and an alleged offence as pro- vided for in sections 4, 5, and 7 and involvement in these offences as pro- vided for in section 10 of the Preven- tion and Combating of Trafficking in Persons Act, 2013, during the time in which the creditor is unable to insti- tute proceedings because of his or her mental or psychological condition.’’.
Act No. 51 of 1977 Criminal Procedure Act, 1977
1. The amendment of section 18 by the substitution for paragraph (h) of the fol- lowing paragraph: ‘‘(h) [trafficking in persons for sexual
purposes by a person] offences as provided for in section [71(1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007] 4, 5 and 7 and involvement in these offences as provided for in section 10 of the Prevention and Combating of Traf- ficking in Persons Act, 2013;’’.
2. The insertion of the following section after section 261:
‘‘Trafficking in persons
261A. (1) In this section— ‘Basic Conditions of Employment Act’ means the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);
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‘Criminal Law (Sexual Offences and Related Matters) Amendment Act’ means the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007); ‘Immigration Act’ means the Immi- gration Act, 2002 (Act No. 13 of 2002; and ‘Prevention and Combating of Traf- ficking in Persons Act’ means the Prevention and Combating of Traf- ficking in Persons Act, 2013. (2) If the evidence on a charge of
trafficking in persons provided for in section 4 or any involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, does not prove the offence of trafficking in per- sons or the involvement in the of- fence, but the offence of— (a) assault with intent to do grievous
bodily harm; (b) common assault; (c) rape as provided for in section 3
of the Criminal Law (Sexual Of- fences and Related Matters) Amendment Act;
(d) compelled rape as provided for in section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act;
(e) sexual assault as provided for in section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act;
(f) compelled sexual assault as pro- vided for in section 6 of the Crimi- nal Law (Sexual Offences and Re- lated Matters) Amendment Act;
(g) compelled self-sexual assault as provided for in section 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act;
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(h) debt bondage as provided for in section 5 or any involvement in the offence as provided for in sec- tion 10 of the Prevention and Combating of Trafficking in Per- sons Act;
(i) the possession, destruction, confis- cation, concealment of or tamper- ing with documents as provided for in section 6 or any involve- ment in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Per- sons Act;
(j) using the services of a victim of trafficking as provided for in sec- tion 7 or any involvement in the offence as provided for in section 10 of the Prevention and Combat- ing of Trafficking in Persons Act;
(k) conduct facilitating trafficking in persons as provided for in section 8 or any involvement in the of- fence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act;
(l) transporting a person within or across the borders of the Republic knowing that the person is a vic- tim of trafficking as provided for in section 9(1) or any involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Per- sons Act;
(m) entering or remaining in, or de- parting from the Republic as pro- vided for in section 49(1)(a) of the Immigration Act;
(n) knowingly assisting a person to enter or remain in, or depart from the Republic as provided for in section 49(2) of the Immigration Act;
(o) employing a child as provided for in section 43 of the Basic Condi- tions of Employment Act; or
(p) forced labour as provided for in section 48 of the Basic Conditions of Employment Act,
the accused may be found guilty of the offence so proved.’’.
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3. The amendment of section 299A by— (a) the substitution in subsection (1) for
paragraphs (e) and (f) of the follow- ing paragraphs: (e) kidnapping; [or] (f) any conspiracy, incitement or
attempt to commit any offence contemplated in paragraphs (a) to (e)[,] ; or; and
(b) the addition in subsection (1) of the following paragraph after paragraph (f): ‘‘(g) offences as provided for in
section 4, 5 and 7 and involve- ment in these offences as pro- vided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.’’.
4. The amendment of Schedule 1 by the substitution for the item ‘‘[Trafficking in persons for sexual purposes by a person contemplated in section 71(1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007]’’ of the follow- ing item: ‘‘Trafficking in persons as provided for in section 4 and involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.’’.
5. The amendment of Part II of Schedule 2 by the substitution for the item ‘‘[Trafficking in persons for sexual purposes by a person contemplated in section 71(1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007]’’ of the following item: ‘‘Offences provided for in section 4, 5 and 7 and involvement in these of- fences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.’’.
6. The amendment of Part III of Sched- ule 2 by the insertion of the following item after the item of ‘‘Childstealing’’: ‘‘Offences as provided for in section 4, 5 and 7 and involvement in these offences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.’’.
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7. The amendment of Schedule 5 by the substitution for the item ‘‘[Any traffick- ing related offence by a commercial carrier as contemplated in section 71 (6) of the Criminal Law (Sexual Of- fences and Related Matters) Amend- ment Act, 2007]’’ of the following item: ‘‘Offences as provided for in section 4, 5, 7 and 9(1) and involvement in these offences as provided for in sec- tion 10 of the Prevention and Combat- ing of Trafficking in Persons Act, 2013.’’.
8. The amendment of Schedule 6 by the substitution for the item ‘‘[Trafficking in persons for sexual purposes by a person as contemplated in section 71(1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007]’’ of the follow- ing item: ‘‘Offences as provided for in section 4, 5 and 7 and involvement in these offences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.’’.
Act No. 105 of 1997
Criminal Law Amendment Act, 1997
1. The amendment of Part I of Schedule 2 by the substitution for the item ‘‘[Trafficking in persons for sexual purposes by a person as contemplated in section 71(1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007]’’ of the following item: ‘‘Trafficking in persons as provided for in section 4(1) and involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.’’.
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2. The amendment of Part III of Sched- ule 2 by the deletion of the item ‘‘[Any trafficking related offence by a com- mercial carrier as contemplated in section 71 (6) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007]’’.
Act No. 112 of 1998
Witness Protection Act, 1998
The amendment of the Schedule by the substitution for item 10A of the follow- ing item:
‘‘10A. [Trafficking in persons for sexual purposes by a person or commercial carrier as contemplated in section 71 of the Criminal Law (Sexual Offences and Related Mat- ters) Amendment Act, 2007] Any offence under Chapter 2 of the Pre- vention and Combating of Trafficking in Persons Act, 2013.’’.
Act No. 121 of 1998
Prevention of Organised Crime Act, 1998
The amendment of Schedule 1 by the insertion after item 33 of the following item:
‘‘33A. Any offence under Chapter 2 of the Prevention and Combating of Trafficking in Persons Act, 2013;’’.
Act No. 56 of 2001 Private Security Industry Regulation Act, 2001
The amendment of the Schedule by the substitution for the item ‘‘[Trafficking in persons for sexual purposes by a person contemplated in section 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007]’’ of the follow- ing item: ‘‘Any offence under Chapter 2, except section 9(3), of the Prevention and Combating of Trafficking in Persons Act, 2013.’’.
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Act No. 13 of 2002 Immigration Act, 2002
1. The amendment of section 29 by— (a) the insertion of the following sub-
sections after subsection (1): ‘‘(1A) A port of entry visa is-
sued to a foreigner before he or she became a prohibited person in terms of subsection (1)(b) must be withdrawn. (1B) Subsection (1)(b) does not
prohibit the relevant authorities from bringing a person to the Re- public for prosecution if a warrant for his or her arrest is outstanding in the Republic.’’.
2. The amendment of section 35 by— (a) the addition of the following para-
graph in subsection (5): ‘‘(e) a list of all the children on
board of the conveyance indi- cating which children are unac- companied.’’; and
(b) the insertion after subsection (5) of the following subsection:
‘‘(5A) If an immigration officer has reason to believe that any pas- senger on board the conveyance is a victim of trafficking, he or she must immediately report the mat- ter, in terms of section 18(1) or 19(1) of the Prevention and Com- bating of Trafficking in Persons Act, 2013, to a police official.’’.
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3. The amendment of section 49 by the addition in subsection (15) of the follow- ing paragraph: ‘‘(c) has in his or her or its possession
or intentionally destroys, confis- cates, conceals or tampers with any actual or purported passport, travel document or identity document of another person in furtherance of a crime, shall be guilty of an offence and liable on conviction to impris- onment for a period not exceeding 15 years without the option of a fine.’’.
4. The amendment of Schedule 1 by the substitution for the item ‘‘[Trafficking in persons for sexual purposes by a person as contemplated in sections 71 (1), (2) or (6) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007]’’ of the follow- ing item: ‘‘Any offence under Chapter 2 except section 9(3) of the Prevention and Combating of Trafficking in Persons Act, 2013’’.
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Act No. 38 of 2005 Children’s Act, 2005
1. The amendment of the Table of Con- tents by the deletion of the following: (a) ‘‘CHAPTER 18
TRAFFICKING IN CHILDREN 281. Purposes of Chapter 282. UN Protocol to Prevent Trafficking in Persons to have force of law 283. International co-operation 284. Trafficking in children prohibited 285. Behaviour facilitating trafficking in children prohibited 286. Assistance to child who is victim of trafficking 287. Trafficking of child by par- ent, guardian or other person who has parental responsibilities and rights in respect of child 288. Reporting of child who is victim of trafficking 289. Child who is victim of trafficking found in Republic 290. Repatriation of child who is victim of trafficking 291. Extra-territorial jurisdic- tion’’ and
(b) ‘‘Schedule 3’’.
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2. The amendment of section 1 by— (a) the substitution for the definition of
‘‘commercial sexual exploitation’’ of the following definition:
‘‘commercial sexual exploita- tion’’, in relation to a child means [— (a)] the procurement of a child
to perform sexual activities for financial or other re- ward, including acts of pros- titution or pornography, irre- spective of whether that reward is claimed by, pay- able to or shared with the procurer, the child, the par- ent or care-giver of the child, or any other person [; or
(b) trafficking in a child for use in sexual activities, includ- ing prostitution or pornog- raphy]’’; and
(b) the repeal of the definitions of ‘‘trafficking’’ and ‘‘UN Protocol to Prevent Trafficking in Persons’’.
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3. The repeal of Chapter 18.
4. The amendment of section 305 by— (a) the repeal of subsection (1)(r) and
(s); (b) the substitution for subsection (6) of
the following subsection: ‘‘(6) [Subject to subsection
(8), a] A person convicted of an offence in terms of subsection (1), (2), (3), (4) or (5) is liable to a fine or to imprisonment for a pe- riod not exceeding ten years, or to both a fine and such imprison- ment.’’ ; and
(c) the repeal of subsection (8).
5. The repeal of Schedule 3.
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Act No. 32 of 2007 Criminal Law (Sexual Offences and Related Mat- ters) Amendment Act, 2007
1. The amendment of the long title by the deletion of the following ‘‘* making interim provision relating to the traf- ficking in persons for sexual pur- poses;’’.
2. The amendment of the Index by the deletion in Chapter 7 Part 6 of the fol- lowing: ‘‘Transitional provisions relating to trafficking in persons for sexual purposes 70. Application and interpretation 71. Trafficking in persons for sexual purposes’’.
3. The amendment of section 1 by the substitution for the definition of ‘‘sexual offence’’ of the following definition: ’’ ‘sexual offence’ means any offence in terms of Chapters 2, 3 and 4 and sec- tion[s] 55 [and 71(1), (2) and (6)] of this Act and any offence referred to in Chapter 2 of the Prevention and Com- bating of Trafficking in Persons Act, 2013, which was committed for sexual purposes;’’.
4. The amendment of Chapter 7 by the deletion of the heading of Part 6.
5. The repeal of sections 70 and 71.
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Act No. 75 of 2008 Child Justice Act, 2008
The amendment of Schedule 3 by the substitution for item 13 of the following item: ‘‘[Trafficking in persons for sexual purposes referred to in section 71(1) and involvement in trafficking in persons for sexual purposes re- ferred to in section 71(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007] Any offence provided for in sections 4, 5, 6, or 7 or involvement in these offences as provided for in section 10 of the Prevention and Com- bating of Trafficking in Persons Act, 2013.’’.
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