Buying and selling children in South Africa – properly sanctioned, or an absolute steal?

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Abstract 

The heinous crime of child trafficking is an alarming concern worldwide, and also in South Africa. For the past five years international reports on human trafficking have identified South Africa as a country of origin, transit and destination for victims of human trafficking.

Historically chattel slavery, typified by buying and selling people in public, overtly sanctioned forced labour, abuse and exploitation. In contrast, human trafficking emerged as a flourishing, but hidden criminal business. Rather than obvious physical restraint, traffickers torment victims violently behind the scenes, while using psychological control mechanisms increasingly to coerce victims into compliance. This clandestine feature of human trafficking significantly obstructs the identification and successful prosecution of human traffickers. Accordingly, trafficking is considered a crime of vast impunity. Children are often traffickers’ commodity of choice, for they are easier to control and manipulate owing to their vulnerability, especially when isolated from their families. For this reason, it is upsetting that the 2019 report of End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT) identified South Africa as a “hub for child trafficking”.

Against this background, a burning question is whether perpetrators also traffic children in South Africa with impunity. Several publications cover child trafficking in general, but whether this crime is being combated through successful criminal prosecutions in South Africa has not been extensively investigated. This contribution aims to address this gap by exploring, by way of a qualitative literature review and legal analyses, the combating of child trafficking in South Africa from a criminal law perspective.

Several international and African instruments adopted before 2000 contain provisions related to child trafficking. However, none of these instruments provides comprehensive protection for child victims of trafficking, nor do they clearly define child trafficking. The shortcomings in these instruments were addressed in 2000 with the adoption of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol). This universal instrument addresses human trafficking comprehensively and provides the first internationally accepted definition of trafficking adult as well as child victims. Importantly, the protocol proclaimed international minimum standards for combating this crime. State parties to this treaty, such as South Africa, are required to comply with these standards in national laws by preventing human trafficking, protecting victims and their human rights, prosecuting and appropriately punishing perpetrators, and partnering with other countries in combating the crime.

In South Africa, pending the finalisation of all-inclusive legislation that complied with the protocol’s standards, interim provisions were initially incorporated into existing legislation, namely the Children’s Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. However, these interim provisions failed to comply fully with international standards. Eventually, the comprehensive Prevention and Combating of Trafficking in Persons Act 7 of 2013 (Trafficking Act), which covered all forms of trafficking, came into operation on 9 August 2015.

Section 4(1) of the Trafficking Act criminalises human trafficking by defining the three key elements of the crime as follows:

Any person who delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person within or across the borders of the Republic, [element 1: conduct] 
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, [element 2: method]

for the purpose of any form or manner of exploitation, [element 3: exploitative purpose] is guilty of the offence of trafficking in persons.

In compliance with international standards, the Trafficking Act requires that one of the prohibited forms of conduct be committed by any of the listed methods for any exploitative purpose to constitute human trafficking. According to the Trafficking Protocol, the three core elements of human trafficking apply only to adult trafficking, while the method element is expressly waived for child trafficking. Regrettably, the Trafficking Act does not specifically refer to “child trafficking”, nor does it provide explicitly that only two elements, the prohibited action and the exploitative purpose, are required for child trafficking. Still, based on various arguments, it appears that the Trafficking Act is interpreted in line with international law by requiring that only the key conduct and purpose elements, without any use of illicit means, be proven for a conviction for child trafficking. 

Apart from the trafficking crime, the Trafficking Act established several other trafficking-related offences to protect victims, including debt bondage, confiscation of travel documents and knowingly using the services of trafficked victims. Specific protection for child victims is provided by criminalising non-reporting of a trafficked child, as well as adopting or concluding a forced marriage with the purpose of exploiting the child.

International law requires not only the criminalisation of human trafficking in domestic law, but also provision for deterrent and proportionate criminal sanctions. The Trafficking Act acknowledges the grave nature of the crime by providing for severe penalties and a list of aggravating factors that sentencing courts must consider. The main trafficking offence carries a maximum fine of R100 million or imprisonment for life, or both.

Acknowledging that the Trafficking Act criminalises child trafficking and provides for stringent sanctions, the question remains whether the act is being implemented to secure convictions. Gaining access to official trafficking data and court records of child trafficking cases in South Africa is exceptionally challenging, as only a few of these cases are reported in law reports. Still, 20 convictions in child trafficking cases could be traced during the research for this contribution. A brief discussion of 16 of these cases provides new insights into child trafficking in South Africa in general and into sentencing in particular. The court cases revealed the trafficking of girls for sexual exploitation as the most detected form of trafficking. Convicted traffickers, men as well as women, were either from South Africa or nationals of Mozambique, Zimbabwe, Lesotho, Nigeria and Burundi. Minor girls, often as young as 11 years old and one even mentally disabled, were trafficked for sexual exploitation within and across the borders of South Africa. Girls were trafficked from the neighbouring countries of Mozambique, Lesotho and Zimbabwe to South Africa as destination country. Worth mentioning is that one girl was trafficked under the guise of the ukuthwala cultural practice, while the first conviction for online sexual exploitation was also recorded. Female family members of an orphaned girl from Lesotho lured her to South Africa, registered her on an internet website and then forced her to perform sexual acts online to paying customers. Other forms of child trafficking for which there were convictions included a mother trying to sell her baby on Gumtree for R5 000, and female traffickers arranging the “adoption” of orphaned or kidnapped children by selling them to “adoptive parents”. In the first (and only) labour trafficking case a boy of only 6 years old was trafficked from Mozambique to South Africa.

As far as sentencing is concerned, stringent penalties were imposed. Almost all traffickers received lengthy prison sentences. In several cases the court imposed life sentences or even multiple life sentences. Therefore, a justified assertion is that children are not trafficked with total impunity in South Africa.

Despite the successful implementation of counter-trafficking legislation to secure convictions, several problematic issues have been identified in the legal framework. These include the uncertainty about the exact meaning of the concept of exploitation in the trafficking context, the fact that sections 15 and 16 of the Trafficking Act are still not in operation, a lack of certainty about the availability of definite protection for foreign victims and the legislature’s failure to include perpetrators of serious trafficking crimes in the National Child Protection Register. Recognising the urgency of prioritising these issues, improvements are suggested for honing counter-trafficking legislation into a sharper instrument to advance successful prosecutions and stop the trafficking in children as a crime of impunity.

Keywords: child trafficking; exploitation; human trafficking; Prevention and Combating of Trafficking in Persons Act; prosecution

 

Lees die volledige artikel in Afrikaans

Die koop en verkoop van kinders in Suid-Afrika – behoorlik gestraf, of ’n ware winskoop?

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