Throughout history, people have fought for many of the fundamental rights that we enjoy today. Perhaps the most sought-after right is that of freedom in its many forms. Indeed, most countries today often judge their societal progress by contrasting their level of freedom with others around the world. It remains a point of pride for many nations to refer to themselves as ‘free’. Where does South Africa fit into this contest? We’ve all heard the stories of human trafficking within the country but how many citizens can be called free and what does the law say about it?
South Africa has various pieces of legislation in place to combat not just the act of trafficking but also its many potential outcomes. While human trafficking can be vaguely described as the act of trading people for various purposes it often leads to far more specific and nefarious crimes such as sexual slavery and forced labour. Some sources estimate that around 155 000 people are enslaved throughout the country making trafficking a major concern for any law-abiding citizen. As such, South Africa has various pieces of legislation in place to combat not just the act of trafficking but also its many potential outcomes.
The first and foremost document concerning the matter is the Prevention and Combating of Trafficking in Persons Act 7 of 2013. Chapter 2 of this act defines human trafficking at length alongside things like illegal adoption and debt bondage. Additionally, this act makes provisions for the maximum penalties that can be set for perpetrators of these crimes, such penalties include –
- Trafficking as defined – Fines up to R100 million and/or imprisonment, including life imprisonment.
- Knowingly benefiting from the services of a victim of trafficking – Up to 15 years in prison.
- Conduct that facilitates trafficking – Up to 10 years in prison.
While the first 2 crimes are pretty self-explanatory, that last offence has its own intricate definition which is worth going into.
What Does it Mean to Facilitate Trafficking?
While chapter 2 section 8 of the aforementioned act describes this offence in painstaking detail, it can also be effectively understood by looking at its most common practical forms, namely –
- A person that knowingly leases or subleases an area for the purposes of trafficking.
- A person that fails to report trafficking which could be reasonably suspected after leasing or subleasing an area.
- A person who publishes or advertises information that facilitates or promotes the trafficking of people
Of course, there are many other offences related to the facilitation of trafficking but hopefully, these examples provide an idea of the kinds of criminal assistance that can be punished.
What is the Law on Sex Trafficking and Forced Labour?
As mentioned, different bits of legislation deals with the different forms and influences of trafficking as defined above. The two most common variations of this offence include sex trafficking and forced labour which are chiefly covered by –
- The Criminal Law (Sexual Offences and related matters) Amendment Act of 2007 – This act covers sex trafficking of children and adults and makes provisions for life imprisonment.
- The Basic Conditions of Employment Act of 1997 – This act prohibits both child employment and the act of forced labour, the latter being punishable by between 3-6 years in prison.
- Children’s Amendment Act of 2005 – This act deals with multiple crimes ranging from the use of a child for slavery to commerical sexual exploitation and provides for penalties such as fines and imprisonment from anywhere between 5 years to life.
Overall, South Africa takes the issue of trafficking very seriously with certain aspects such as the deprivation of freedom and the subjection to slavery being explicitly condemned in the Bill of Rights. That said, another, more obscure practice has also been outlawed.
What is Debt Bondage?
Debt Bondage occurs when a person is forced to work in an attempt to pay off some kind of debt that they or their loved ones owe. Normally, this work is Sisyphean in nature and the victim can seldomly pay off the debt. Sometimes, the strategy of entering someone into debt bondage is highly complex and victims are often tricked into it.
For example, a person may be told that they have a relatively small amount of debt that can be worked off with a similarly small amount of work, however, the victim soon realises that they require food and shelter while they complete their work. These things are provided by the ‘employer’ but the living expenses are added onto the original debt and eventually the victims find themselves incurring debt faster than they are able to work it off.
This practice is illegal in South Africa and guilty parties can be fined and/or sentenced to prison for up to 15 years.
How are Punishments for Traffickers Determined?
The fines and/or prison sentences that are imposed for trafficking and/or related infringements are determined by the courts after they consider multiple factors including, but not limited to –
- The role played by the guilty party in the trafficking process.
- The conditions wherein the victim was kept.
- The abuse suffered by the victim.
- The mental health of the victim.
- Whether or not the victim suffered from any physical disabilities.
- Whether or not the victim was a child.
Although the punishments may vary depending upon the case, most convictions are suitably severe, for example, a man who kept 3 girls to work as sex slaves was recently given 6 life sentences along with an additional 129 years in prison.
How are Victims of Human Trafficking Identified?
Unfortunately, people who are subjected to human trafficking and subsequent human rights abuses do not share many universal characteristics that would come in handy when identifying them. While a slight majority (55%) of victims are females who are often forced into sexual slavery, many young boys are also abducted to supply forced labour or to beg on the roadside. Perhaps the only common trait shared amongst most victims is that of poverty.
The majority of human trafficking victims come from low-income communities and are often lured away via promises of food, money and jobs rather than by threats of violence and force.
Healthcare workers often struggle to identify trafficked persons but certain features can be used as indicators of potential abuses. These features include, but are not limited to –
- Poor physical or mental health.
- Language barriers (in cases involving victims from outside the country).
- Fear of healthcare workers and a reluctance to detail their situation.
- Traffickers may speak on their behalf and offer distorted information.
Victims of trafficking or those who wish to report suspected instances can call the South African National Human Trafficking Hotline or contact the SAPS.
In Conclusion – What is the Law on Human Trafficking in South Africa?
Human trafficking is an extremely serious infringement on multiple fundamental human rights upheld by the South African constitution and, as such, can result in severe penalties ranging from heavy fines to life imprisonment. Due to the many forms trafficking can take and the various crimes that can result from it, the matter is prohibited by numerous pieces of legislation, namely –
- The Criminal Law (Sexual Offences and related matters) Amendment Act of 2007.
- The Basic Conditions of Employment Act of 1997.
- The Children’s Amendment Act of 2005
The severity of the punishment that can be incurred from human trafficking will depend on many factors ranging from the conditions in which the victim was kept, any abuse suffered during their confinement and, most notably, the role played by the guilty party. The three primary roles in cases of human trafficking and their related maximum penalties are –
- Those who physically traffick the victims – R100 million fine and/or life imprisonment.
- Those who knowingly benefit from the trafficking of victims – 15 years in prison.
- Those who conduct in behaviour that facilitates trafficking – 10 years in prison.
The facilitation of human trafficking can take many forms, for example, those who knowingly lease or sublease areas that are used for purposes of trafficking or individuals who promote or advertise information related to trafficking may be found guilty of such facilitation.
Another practice outlawed by the aforementioned legislation is that of Debt Bondage which occurs when a victim is forced to work in order to pay off a debt, this debt is either too extensive to be worked off or is steadily increased over time which places the victim in a continual and unending cycle of forced labour.
Human traffickers target victims from all walks of life but generally focus their attention on those living near or below the poverty line. Such victims are often lured away with promises of food or money rather than with violence and many are subsequently forced or tricked into drug addiction to prevent their escape. Female victims are usually subjected to sex trafficking while young boys are normally prioritised for forced labour or made to beg for money. Citizens are encouraged to report instances of human trafficking and can do so via the national hotline or by contacting the police.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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