SOUTH AFRICA – SAFE HAVEN FOR HUMAN TRAFFICKERS?
EMPLOYING THE ARSENAL OF EXISTING LAW TO COMBAT HUMAN TRAFFICKING

HB Kruger*
H Oosthuizen*

1	Introduction

South Africa has ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol) and is therefore obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument. By mid-2011 South Africa had not enacted the required, comprehensive counter-trafficking legislation. According to the 2011 United States Trafficking in Persons Report,

... the lack of comprehensive law that fully defines trafficking, empowers police and prosecutors ... is the greatest hindrance to anti-trafficking efforts in South Africa.

Therefore, it is argued, traffickers continue trading in people with impunity, while law enforcement officials find their "hands tied" in endeavouring to arrest and bring these perpetrators to book. Against this background, one is tempted to say: “ Traffickers, come to South Africa! Enjoy the unhindered trade in human beings – generate huge profits while the risk of being prosecuted is minimal.”.

Recently, however, proficient prosecutors have addressed this situation by securing significant convictions in a number of trafficking cases. Pending the finalisation of the Prevention and Combating of Trafficking in Persons Bill B7 of 2010 (the 2010 Trafficking Bill), the prosecution made use of existing legal provisions to bring trafficking agents to book.

Against this background the present article examines the utilisation of existing definitions of crimes in order to prosecute and punish criminal activities committed during the human trafficking process. First, a selection of existing common law and statutory crimes that may often be applicable to trafficking-related activities is mapped out. Second, transitional trafficking provisions in the Children's Act of 2005 (Children's Act) and the Criminal Law (Sexual Offences and Related Matters) Amendment Act32 of 2007 (Sexual Offences Amendment Act) are discussed. Finally, since the 2010 Trafficking Billwill in all probability be enacted in the near future, the use of other criminal law provisions in human trafficking prosecutions, even after the passing of this bill into law, is reflected upon. Against this background, one is tempted to say: "Traffickers, come to South Africa! Enjoy the unhindered trade in human beings – generate huge profits while the risk of being prosecuted is minimal."

2	The existing South African criminal law framework

It is widely acknowledged that various crimes are often committed during the trafficking process:

Human trafficking is in fact better understood as a collection of crimes bundled together rather than a single offence; a criminal process rather than a criminal event.

Thus, pending the enactment of counter-trafficking legislation, existing common law crimes and statutory offences may be and should be utilised to prosecute criminal conduct committed during the trafficking process. The successful prosecution of trafficking agents in terms of these existing crimes and offences will depend on the facts of the particular case.

2.1	Common law crimes

There is no common law provision dealing specifically with contemporary human trafficking. Still, numerous common law crimes, such as the selection discussed below, may be used to prosecute trafficking agents.

2.1.1	Abduction

A perpetrator who traffics a minor to be exploited for the purpose of sexual intercourse or a forced marriage may in certain circumstances be convicted of the common law crime of abduction. A prosecution on a charge of abduction will be successful where such a perpetrator unlawfully and intentionally removes an unmarried minor from the control of his or her parents or guardian without their consent. The intention of the perpetrator in taking the minor must be that he or she, or even somebody else wishes to marry or to have sexual intercourse with the minor. It is important to note that, since this crime punishes a wrong committed against the custodian of the minor and not against the minor, the consent of the minor to the acts of the perpetrator is no defence.

Whether or not the ukuthwalacultural custom, which is still practised in some Nguni communities in South Africa, may be prosecuted under the crime of abduction is the subject of debate, as is whether or not such a custom constitutes human trafficking for sexual exploitation. One point of view is that the tradition of ukuthwala indeed a forced marriage of young girls to adult men. However, in interpreting the ukuthwala custom within the South African context, a number of authors hold a different view. Mwambene and Sloth-Nielsen, for instance, point out that ukuthwala is not a marriage in itself, but a preliminary procedure that is employed in order to compel the family of the future bride to enter into negotiations for the conclusion of a customary marriage. Koyana and Bekker describe the custom as a means of commencing marriage negotiations by way of a "mock abduction". The bride-to-be is seemingly taken "by force" and kept at the residence of the future bridegroom's father pending the marriage negotiations.

It is important to clarify whether ukuthwalaconstitutes the crime of abduction. Mwambene and Sloth-Nielsen maintain that South African customary law recognises those forms of ukuthwalawhere the future bride consents to the ukuthwalaprocess as a legitimate means of marriage negotiation. This argument is also supported by the relevant provision of the Constitution of the Republic of South Africa, 1996 (1996 Constitution), which safeguards the right to participate in the cultural life of one's choice. On the other hand, this right may not be not exercised in a manner inconsistent with any provision of the Bill of Rights. Therefore, in circumstances where the ukuthwala tradition is abused to force an unwilling girl into marriage, the courts have viewed such conduct as criminal abduction. Recently, reports received have indicated that young girls have been abducted under the charade of this tradition and have subsequently been forced into marrying adult men. Such an abuse of this tradition, where unmarried minors are removed from the control of their parents without their (the parents') consent may be successfully prosecuted on a criminal charge of abduction. Further, it can be argued that the misuse of the ukuthwala tradition to force girls and women into unwanted marriages may also constitute human trafficking for the purposes of sexual exploitation.

2.1.2	Kidnapping

Kidnapping is one of the means used to "recruit" persons for human trafficking. According to Snyman, kidnapping consists in

unlawfully and intentionally depriving a person of his or her freedom of movement and/or if such person is a child, the custodians of their control over the child.

However, unlike kidnapping, human trafficking further requires that the perpetrator traffic a person with an exploitative purpose. Whereas kidnapping focuses mainly on the violation of the right to freedom of movement, human trafficking more often than not includes the violation of several other human rights, such as the right to the dignity, life and security of the person. Accordingly, Stuurman rightly points out that the crime of trafficking in persons, as defined in the Palermo Protocol, is significantly broader than the common law crime of kidnapping. For this reason, the crime of kidnapping is too narrow to deal with trafficking cases adequately, and more comprehensive definitions of trafficking crimes must therefore be established.

In cases where adequate evidence to prove the human trafficking offence is lacking, or where applicable human trafficking legislation has not yet been enacted, prosecution on a crime of kidnapping may be successful. This crime protects two interests, namely personal freedom of movement as well as parental control over minors.These interests are often violated in human trafficking cases. Custodians may be deprived of control over their minor children by traffickers who take and traffic their children without the custodians' consent. Since it is the custodian's interest that is violated, the child's consent does not legalise the perpetrator's conduct. Perpetrators may be convicted of kidnapping also where they violate a trafficked person's freedom of movement by either physically moving the trafficked person, using force or deception, to another place or by keeping the victim locked up.

2.1.3	Murder and attempted murder

A perpetrator who causes the death of a trafficked person may be charged with murder. In cases where traffickers or their clients, while knowing that they are HIV-positive, rape a trafficked person, they may be convicted of attempted murder. Such a conviction is possible, irrespective of whether or not the victim is infected with the human immunodeficiency virus (HIV) as a result of being raped. Furthermore, where evidence is presented that the victim died of acquired immune deficiency syndrome (AIDS) contracted as a direct result of being raped by the perpetrator, a conviction of murder can be secured.

2.1.4	Culpable homicide

In some trafficking cases victims die not because the perpetrators have the intent to kill them but because their deaths are caused by the perpetrators' negligent conduct. Such cases of unlawfully and negligently causing the death of another human being can be prosecuted on a charge of culpable homicide. For example, where the trafficking agents force their victims to be transported in a closed container on a truck, as a result of which they die owing to a lack of oxygen, the perpetrators may be prosecuted for the crime of culpable homicide.

2.1.5	Common assault

Briefly stated, a perpetrator can be convicted of assault where his or her conduct results in the impairment of another's bodily integrity.This result can be caused in two distinct ways, namely by applying force or by inspiring the belief that force is imminently to be applied to the victim. Traffickers typically subject their victims to various forms of physical abuse in order to control them and force them to submit to their demands. These perpetrators may therefore be prosecuted for assault where they unlawfully and intentionally use their own body or an instrument to apply force directly to the person of the victim, for example by punching or kicking the victim. Traffickers are also known to force trafficked victims to consume alcohol and drugs to make them compliant and dependent on the trafficker. With reference to case law, Snyman and Hunt confirm that this indirect application of force also constitutes the crime of assault.

Apart from the direct or indirect application of force, assault is committed also where the perpetrator's conduct inspires a belief in the trafficked person that force is immediately to be applied to him or her. An example of this form of assault occurs when the perpetrator threatens to shoot trafficked persons should they dare to escape.

2.1.6	Assault with intent to cause grievous bodily harm

Assault with intent to cause grievous bodily harm is a form of assault qualified by a certain intention, but it is still a separate, substantive crime. Unlike the crime of assault, a conviction for assault with intent to cause grievous bodily harm requires that the state must prove that the perpetrator actually had the intent to cause grievous bodily harm to the victim. Based on case law, Snyman points out specific factors which may indicate such intent, namely

the nature of the weapon or instrument used, the way in which it was used, the degree of violence, the part of the body aimed at, the persistence of the attack, and the nature of the injuries inflicted, if any.

It is important to note that it is not required that the perpetrator cause grievous bodily harm. It suffices if the intent to cause such harm is proven, even where only a slight injury or no injury at all is caused, for instance where the trafficker shoots at the victim but misses. The fact that serious and continuous assaults are usually inflicted on trafficked persons justifies prosecution for assault with the intent to cause grievous bodily harm in many human trafficking cases.

2.1.7	Extortion

The crime of extortion is committed where a person

unlawfully and intentionally obtains some advantage, which may be of either a patrimonial or a non-patrimonial nature, from another by subjecting the latter to pressure, which induces her to hand over the advantage.

Traffickers often use such unlawful pressure in the form of threats or intimidation to compel unwilling trafficked victims to submit to their demands. For example, perpetrators may threaten victims with physical harm or reprisal against their families in order to obtain an advantage, such as the provision of services not legally due to the perpetrator. Also, where trafficked victims are forced into crime or exploitative sexual activities some are threatened that photos or video recordings of such conduct will be disclosed to their families or to law enforcement authorities. The advantage that traffickers obtain by exerting this unlawful pressure is to exploit the victim further to their benefit. In these circumstances, prosecution for the crime of extortion is apposite.

However, the prosecution faces a problem where the extortion has taken place outside the borders of South Africa. In such cases, as with kidnapping committed outside South Africa, it is not possible to prosecute perpetrators for these common law crimes. Comprehensive counter-trafficking legislation which provides for extraterritorial jurisdiction is required to address this problem.

2.1.8	Crimen iniuria

According to Burchell, crimen iniuriaconsists in the unlawful and intentional "impairing [of] the dignity or privacy of another person". A person's dignity may be impaired in countless ways, which makes this crime applicable in many if not most trafficking cases. A conviction may follow where a trafficker violates a victim's dignity by using vulgar and abusive language or conduct, such as spitting in the victim's face. A victim's sexual dignity may be impaired by explicit conduct such as unwanted kissing, the touching of private parts or forced participation in other sexual acts. At the beginning of the trafficking process traffickers often pretend to be the victim's friend or lover. Frequently, they do this by communicating via cellphone or Internet chatrooms, the purpose being to persuade the victim gradually to submit to sexual acts. The use of this modern form of sexual "grooming" constitutes behaviour that impairs dignity; hence such perpetrators may be prosecuted for crimen iniuria. Furthermore, a trafficker may also be convicted of this crime for violations of privacy, such as voyeuristic peeping, eavesdropping, electronic surveillance and reading private communications such as letters, cellphone messages or e-mails.

2.1.9	Criminal defamation

Criminal defamation differs from crimen iniuriain that it criminalises "the unlawful and intentional publication of matter concerning another which tends seriously to injure his reputation".

This criminalisation of such publication protects a person's fama(good name or reputation) from defamatory conduct which tends to expose a victim to hatred or ridicule, thus diminishing the esteem in which the victim is held by others. The required "publication" of the defamatory conduct is interpreted to mean that the defamatory conduct of the perpetrator must come to the notice of someone other than the complainant. Therefore, traffickers may be charged with this crime when they provide information in order to injure the reputation of victims, for example by informing victims' families or employers that they perform sexual services, are thieves, are drug couriers or are participants in pornography, while not disclosing that they (the victims) have been coerced or deceived into these situations.

2.1.10	Fraud and related crimes

A typical recruitment method used to lure persons into the trafficking trap is deception. Raymond points out that the vast majority of victims are being trafficked through false promises or other forms of deception and not by forceful methods such as kidnapping or abduction. The literature indicates that deceptive methods used to recruit potential trafficking victims vary, but most often include the promise of lucrative job or educational opportunities.

The well-known crime of fraud may be used to prosecute trafficking offenders for misrepresentations made to trafficked persons. Misrepresentation, which constitutes the conduct element of fraud, entails deceiving someone by means of a falsehood, or, as Snyman explains it, is the situation where one person represents to another that "a fact or a set of facts exists which in truth does not exist". A trafficker who unlawfully and intentionally makes a misrepresentation to a trafficked person, which then causes the latter actual prejudice or even potential prejudice, may be convicted of fraud. Species of fraud, namely forgery and uttering, which entail the forging of a document or presenting such a forged document as a genuine document to another, may also find application in trafficking cases. For example, when trafficking agents forge passports or other travel documents, or present such forged documents to government officials as valid documents, a prosecution on a charge of forgery or uttering, or both crimes, may be instituted against the offenders.

2.1.11	Slavery

Picarelli and others refer to human trafficking as a modern manifestation of slavery or modern-day slavery. It is thus appropriate to clarify whether or not slavery is recognised as an existing common law crime in South African law which could be used to prosecute certain criminal activities related to human trafficking.

The Constitution of the Republic of South Africa, provides a normative framework concerning slavery by stipulating that no-one may be subjected to slavery, servitude or forced labour. However, enshrining this human right does not in itself create the crime of slavery in South African law.

The literature concurs that slavery is recognised as an international crime in international customary law. The fact that slavery qualifies as an international crime gives all states the right to prosecute slavery, because international crimes violate not only the domestic legal order of a state, but also the international order. In other words, national courts may exercise jurisdiction over international crimes, acting "as the agent of the international community in the prosecution of an enemy of all mankind".

In addition, slavery has attained the status of ius cogens, which consists of peremptory norms in international law in respect of which no derogation is permitted.

Having clarified the position of slavery in international customary law, it now needs to be determined if international customary law recognising slavery as an international crime finds application in South African law. Dugard points out that the South African courts follow the monist approach of incorporating international customary law into the common law of South Africa. Underpinning this point, the 1996 Constitution confirms that "customary international law is law in the Republic, unless it is inconsistent with the Constitution or an act of Parliament".

Against this background Dugard concludes that slavery is an international crime which is incorporated in the law of South Africa.

Despite the conclusion that slavery is a common law crime in South African law, current South African criminal law textbooks do not include slavery when dealing with South African common law crimes. Also, no reported case of a successful prosecution for such a crime could be traced. Nevertheless, neither the legislature nor a court of law has determined that the crime of slavery has fallen into desuetude. It can therefore be argued that the crime of slavery, as recognised in international customary law, is part of South African common law. However, whether or not the common law crime of slavery can, and should, be used in appropriate cases to prosecute perpetrators involved in human trafficking activities is uncertain and needs to be further researched.

To conclude, it is conceded that the common law crimes discussed above are not comprehensive enough to deal adequately with the complexities of human trafficking. However, common law crimes can be used in certain circumstances to prosecute some of the criminal acts committed during the human trafficking process.

2.2	Statutory offences

Apart from common law crimes, the use of a number of existing statutory offences to prosecute perpetrators involved in trafficking activities for crimes other than human trafficking may be considered.

2.2.1	Riotous Assemblies Act 17 of 1956

A number of trafficking agents are often involved in a human trafficking scenario. The prosecution net should therefore be cast wide to include those who either conspire with others to commit a crime against a trafficked person or who incite or command others to commit a crime against such a victim. The Riotous Assemblies Act 17 of 1956 may be used successfully to accomplish this purpose, as well as to prosecute offenders for attempting to commit human trafficking.

2.2.2	Identification Act 68 of 1997

The Identification Act68 of 1997 requires South African citizens and persons who are lawfully and permanently resident in the Republic of South Africa to obtain an identity card after the age of 16 years has been attained. Where role-players in the human trafficking team imitate or alter the identity cards of their victims, or are merely in possession of such cards, they may be successfully prosecuted in terms of this act and, on conviction, be imprisoned for up to five years.

In many cases, trafficking agents confiscate valid identity cards and travel documents of trafficked persons in order to maintain control over them. Prosecution for such conduct does not seem to be possible in terms of this act. This loophole for traffickers highlights the need for more comprehensive legislation designed to prosecute the variety of criminal acts committed by agents during the trafficking process.

2.2.3	Immigration Act 13 of 2002

In cases where persons are trafficked across international borders, the provisions of the Immigration Act13 of 2002 (Immigration Act) often violated. This act regulates entry into and departure from South Africa. The National Prosecuting Authority reported convictions in the cases of S v Sayed and S v Sawatkan in terms of this act for human trafficking-related activities.

Traffickers who enter, remain in, or depart from South Africa in contravention of this act may therefore be prosecuted. Strikingly, the maximum term of imprisonment for this offence is only three months. Traffickers often assist their victims to illegally enter, remain in, or depart from a country. This conduct also is criminalised in the act, but the maximum term of imprisonment is also short, being only one year. In addition, trafficking agents who knowingly employ an illegal foreigner or a foreigner in violation of this act may on conviction also be imprisoned for up to one year only. For the offence of aiding and abetting foreigners, the penalty is a maximum of 18 months' imprisonment. The literature emphasises that stringent sentences are needed to deter traffickers. It is therefore submitted that the lenient sanctions for these offences are insufficient to dissuade offenders.

Corrupting and bribing officials for the purpose of executing the trafficking crime are often part of the modus operandi of traffickers. Such illegal conduct, which includes bribing or threatening officials so as to obtain a passport or to cross borders without a passport, can also be prosecuted under the Immigration Act.

The act further contains several provisions criminalising illegal conduct related to passports and other documents, conduct which traffickers are often guilty of. It has been reported that fabricated or falsified travel documents are used when traffickers themselves or their victims cannot cross international borders legally. The Immigration Act criminalises the use of such fabricated or falsified passports for the purpose of crossing a South African border or assisting a victim to do so. A further provision prohibits a person from being in possession of another person's travel or identity document or of a blank, falsified or fabricated passport. Notably, this provision may be used where perpetrators use false travel documents or where they hold the travel or identity documents of their victims as a tool for controlling them. For these offences, imprisonment of up to four years may be imposed. However, Stuurman points out that this act does not "... deal with related issues, such as the protection of victims of trafficking or the confiscation, or destruction, of their travel and identity documents".

More comprehensive legislative measures are therefore needed to address these criminal acts, which are often committed during the trafficking cycle.

2.2.4	Basic Conditions of Employment Act 75 of 1997

In cases where people are trafficked specifically for labour exploitation, the provisions in the Basic Conditions of Employment Act75 of 1997 (Basic Conditions of Employment Act) may find application. The purpose of this act is to

give effect to the right to fair labour practices referred to in section 23(1) of the Constitution by establishing and making provision for the regulation of basic conditions of employment.

Accordingly, the act sets minimum employment standards regarding a range of labour matters, including maximum working hours, overtime, sick leave, meal intervals and annual leave. Many of these provisions are commonly violated in labour trafficking cases.

Consequently, this act may be used to prosecute perpetrators for a range of labour offences committed during the trafficking process. First, what is relevant to this article is that the act explicitly prohibits all forms of forced labour. Moreover, no-one may for his or her own benefit or for the benefit of someone else cause, demand or impose forced labour. Regrettably, the maximum penalty for these offences is only three years' imprisonment, which is inadequate in serious cases of prolonged forced labour.

Secondly, there are also provisions in this act which specifically protect children. Section 43(1) of the act prohibits the employment of a child under the age of 15 years, except if a permit is obtained from the Department of Labour to employ the child in the performance of advertising, sports, artistic or cultural activities. As regards older children aged 15 to 18 years, it is stipulated that they may not be employed to do work inappropriate for their age or that places the child's wellbeing at risk. This prohibition can, for example, be used against traffickers who traffic children for forced military service.

The concept "forced labour" is not defined in the Basic Conditions of Employment Act in any other South African legislation. The definition of forced labour in the 1930 International Labour Organization Convention No. 29 Concerning Forced Labour is still internationally accepted. According to Devenish, the gist of forced labour is "work done without consent and invariably without fair and just compensation". This type of labour practice is common in human trafficking scenarios, where trafficked persons do not perform services willingly but are compelled by assaults, threats and other coercive measures to perform services without being fairly compensated for such services.

To conclude, it is possible to prosecute trafficking agents in terms of the Basic Conditions of Employment Actfor contravening the labour provisions in this act. However, the concern remains that stringent sentences are necessary in serious human trafficking cases, , whereas this act provides for a maximum term of imprisonment of only three years for contravening the provisions discussed above.

2.2.5	Child Care Act 74 of 1983

Although the provisions of the Child Care Act of 1983 (Child Care Act) repealed in totoby the Children's Act38 of 2005 on 1 April 2010, the act may still used by the prosecution in trafficking cases occurring prior to this date. Aiming at the protection and welfare of children, the Child Care Act criminalised various forms of abusive behaviour towards children. As a rule, trafficked children are subjected to exploitation. Therefore, in prohibiting the ill-treatment of children this act may be used to prosecute perpetrators who exploited and ill-treated trafficked children. In addition, since the act prohibited the commercial sexual exploitation of children it may therefore find application in cases where children were trafficked for such exploitation.

2.2.6	Children's Act 38 of 2005

In line with the standard that children are entitled to special care and assistance as laid down in the 1948 Universal Declaration of Human Rights, the Children's Act 38 of 2005 (Children's Act) regulates the care and protection of children comprehensively. One of the main aims of the Children's Act is to give effect to certain rights of children as contained in the 1996 Constitution. The offences created in this act are in operation and include the criminalisation of the abuse or deliberate neglect of a child by persons with parental responsibilities as well as by others who voluntarily care for the child. The act defines "abuse" broadly to mean:

any form of harm or ill-treatment deliberately inflicted on a child, and includes – 
(a)	assaulting a child or inflicting any other form of deliberate injury to a child; 
(b)	sexually abusing a child or allowing a child to be sexually abused;
(c)	bullying by another child; 
(d)	a labour practice that exploits a child; or 
(e)	exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally.

It has been reported that not only strangers but also parents and family members are involved in child trafficking. During the trafficking process children are often exposed to the ill-treatment prohibited in section 305(3) of this act, such as physical and sexual abuse, labour exploitation, and circumstances that are psychologically and emotionally harmful. This section can therefore be applied to persons with parental responsibilities and to caregivers who ill-treat trafficked children in their care.

2.2.7	Prevention of Organised Crime Act 121 of 1998

In short, organised crime involves the cooperation of several persons in order to commit crimes. To combat organised crime is challenging because of the effective organisation of these criminal groups and because of their criminal expertise, resourcefulness, efficient use of the latest technology, and expansion over regions and even continents. For this reason the criminal justice system has adopted an innovative approach aimed at eliminating the organisation and the proceeds of crime rather than punishing only the individual criminal. Ackerman J summarised this new paradigm in NDPP v Mohamed as follows:

It is common cause that conventional criminal penalties are inadequate as measures of deterrence when organised crime leaders are able to retain the considerable gains derived from organised crime, even on those occasions when they are brought to justice... . [I]t is now widely accepted in the international community that criminals should be stripped of the proceeds of their crime, the purpose being to remove the incentive for crime, not to punish them.

This approach has been adopted by the Prevention of Organised Crime Act121 of 1998 (Prevention of Organised Crime Act). With the key aim of curbing the scourge of organised crime, the act covers various issues related to organised crime activities, such as racketeering, gang-related offences, money-laundering and asset forfeiture. This act criminalises organised crime activities and defines a "criminal gang" widely to include

any formal or informal ongoing organisation, association, or group of three or more persons, which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

Raymond, Dawes, Bray and Van der Merwe, and Obokata report that organised criminal groups are increasingly associated with human trafficking, primarily in order to make huge illegal profits. The increased involvement of organised criminal groups in human trafficking poses a substantial threat not only to victims, but also to national and international security and stability. Therefore, the Prevention of Organised Crime Act may be used in appropriate circumstances as a tool to deal with money-laundering and with criminal gang and racketeering activities in human trafficking cases. In the ground-breaking case of S v Sayed, the prosecution secured a conviction on charges of managing an enterprise, money-laundering, and acquiring, using or possessing the proceeds of illegal activities in terms of this act. The convictions pertained to trafficking-related activities where Thai women were recruited in Thailand to work as sex workers at a brothel in South Africa. The accused, who managed the brothel, retained the passports of the Thai women as security until the women complied with the terms of their so-called "contract" by generating the amount of R60 000 each from prostitution for the accused.

In addition, the act may also be utilised to take the profit out of human trafficking. This can be done by recovering the proceeds of unlawful activities, as well as by the civil forfeiture of criminal assets that have either been used to commit an offence or are the proceeds of such an offence. For example, the brothel or building accommodating the persons trafficked into forced prostitution is an instrumentality of the offence of keeping a brothel and may be forfeited in terms of this act.

2.2.8	Prevention and Combating of Corrupt Activities Act 12 of 2004

Corrupt activities are typically part of human trafficking offences. Such corrupt activities can be punished under the Prevention and Combating of Corrupt Activities Act 12 of 2004, which provides for the strengthening of measures to prevent and combat corruption. The act unbundles the crime of corruption by creating a general, broad and all-encompassing offence of corruption, as well as various specific offences relating to different corrupt activities.

The gist of the general offence of corruption is the offering or giving of a benefit to another to act illegally or dishonestly, or to violate a legal duty, as well as the receiving of or agreement to receive a benefit for such a purpose. Other offences in the act include the corruption of public officers, judicial officers, prosecutors and witnesses. Corruption used to facilitate human trafficking can indeed be punished by means of these anti-corruption offences.

On conviction of most of the above-mentioned offences, the act provides for stringent sentences by stipulating that such a convicted person is liable-

(a)	in the case of a sentence to be imposed by a High Court, to a fine or to imprisonment up to a period for imprisonment for life; 
(b)	in the case of a sentence to be imposed by a regional court, to a fine or to imprisonment for a period not exceeding 18 years; or
(c)	in the case of a sentence to be imposed by a magistrate's court, to a fine or to imprisonment for a period not exceeding five years.

2.2.9	Drugs and Drug Trafficking Act 140 of 1992

McClain and others report that criminal gangs involved in human trafficking also commit other serious crimes, such as drug trafficking. To facilitate the smooth running of their trafficking operation, traffickers often administer drugs to their victims to make them compliant and facilitate control over them.
The Drugs and Drug Trafficking Act of 1992 criminalises the possession of as well as the trafficking in certain drugs and can thus be used to punish traffickers involved in such drug-related offences. The punishment for drug trafficking offences is severe and imprisonment of up to 25 years can be imposed for trafficking in dangerous and undesirable dependence-producing substances such as cannabis, heroin and morphine.

2.2.10	Human Tissue Act 65 of 1983

The trafficking of persons for the removal of their body parts is a documented form of human trafficking. Apart from using this form of trafficking for illegal organ and tissue transplants, the 2008 study of the International Organization for Migration on in-country trafficking in South Africa suggests the existence of trafficking for body parts, including eyes, tongues and genitals, to be used in traditional African potions.

For the interim period until chapter 8 of the National Health Act61 of 2003 comes into operation, the Human Tissue Act65 of 1983 regulates organ transplants and sets requirements for the removal of tissue, blood and gametes from the bodies of living persons. Apart from payment to authorised persons or institutions, the act prohibits payment for the "acquisition or supply of any tissue or gamete for or to another person" for medical or dental purposes. In applicable cases, this act may be used to prosecute persons for conduct related to the trafficking of persons for the removal of their body parts. While this act prohibits the removal of tissue from living bodies in any other manner or for any other purpose than is prescribed in the act, the punishment for such an offence is a fine of up to R2 000 or imprisonment for a period not exceeding one year, or both. These sanctions are inadequate to deter traffickers who practise and profit from this type of trafficking.

2.2.11	National Health Act 61 of 2003

Like the Human Tissue Act65 of 1983 (Human Tissue Act), the National Health Act61 of 2003 (National Health Act) also criminalises commerce in human tissue. Apart from other provisions, payment for the acquisition or supply of tissue, blood, blood products or gametes is strictly regulated. The act stipulates that it is an offence "to sell or trade in tissue, gametes, blood or blood products" and provides for imprisonment of up to five years for the commission of such an offence. In applicable circumstances, conduct related to trafficking for the removal of body parts may be prosecuted under this act, when the relevant sections of the act come into operation.

A concern is the fact that the act does not criminalise the possession of human tissue or human blood. Cases where a person is found in possession for example of a human head, genitals or other human body parts, are problematic. The law is not clear on how to deal with instances where a person is found in possession of tissue or human blood but it cannot be proven that the person found in possession of such tissue or blood has killed the person to whom such tissue or blood belongs or has the intention to sell or trade in such tissue or blood.

Another concern is that the National Health Actdoes not provide for stringent punishment. Although the penalty for trading in human tissue or blood is increased from a maximum term of imprisonment of one year in terms of the Human Tissue Actto five years under this act, it is doubtful that the penalty is of such a nature that it will successfully deter offenders.
2.2.12	Films and Publications Act 65 of 1996

The Films and Publications Act65 of 1996, as amended, regulates the creation, production, possession and distribution of specific publications and films by means of classification, the imposition of age restrictions, and the provision of consumer advice. In addition, children are specifically protected against sexual exploitation or degradation by criminalising the exploitative use of children in pornographic publications and films or on the Internet. The act provides for numerous offences, including the possession or creation of a film or publication which contains child pornography. Moreover, it is also punishable for a person with knowledge of an offence involving child pornography not to report it to the South African Police Service.

Perpetrators involved in sex trafficking may distribute or possess child pornography, which includes the storage thereof on computer or by way of an electronic data-storage medium such as a memory stick or a compact disc. They may even use trafficked persons to create child pornography in publications, in films or on the Internet in order to advertise the services their victims provide. Such conduct can be successfully prosecuted under this act. It is to be welcomed that persons convicted of creating a film or publication which contains child pornography or who are in possession of or distribute such material can be sentenced to imprisonment for up to 10 years.

2.2.13	Sexual Offences Act 23 of 1957

Some provisions of the Sexual Offences Act23 of 1957 are still in operation and may apply in cases of human trafficking for sexual exploitation. The act proscribes the keeping of a brothel, which is defined as any house or place kept for the purposes of having unlawful carnal intercourse or any other lewd or indecent purpose. Trafficking agents were convicted of this offence in S v Andrews as well as in S v Sayed. The act further provides that certain persons are "deemed to keep a brothel", for example a person managing, or assisting in managing, a brothel or knowingly receiving money at a brothel. This section casts the net wide so that perpetrators sharing in the profits or assisting in the running of a brothel as part of a trafficking scenario can also be prosecuted.

Offences that may find application in a human trafficking scenario, as was illustrated in S v Sayed, are the procurement of a female in order to have unlawful carnal intercourse, living on the earnings of prostitution or the facilitation of prostitution. In addition, permitting premises to be used for the purposes of prostitution is also criminalised under this act. The National Prosecuting Authority reported convictions in terms of this act for human trafficking activities in S v Sawatkan and S v Wiphatawaithaya.
2.2.14	Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Human trafficking, especially for sexual exploitation, invariably involves the sexual abuse of the trafficked person. With a multitude of sexual offences now included in a single statute, namely the Criminal Law (Sexual Offences and Related Matters) Amendment Act32 of 2007 (Sexual Offences Amendment Act), this act may be used successfully to prosecute and punish perpetrators involved in human trafficking for the purposes of various acts of sexual exploitation.

Although a detailed discussion of the wide array of offences contained in this act falls outside the scope of this article, a brief overview is given. Far-reaching law reforms were introduced by replacing the common law offences of rape and indecent assault with the extended statutory offences of rape and sexual assault. The exceptionally broad definitions of the prohibited conduct in both the offences of rape and sexual assault have increased the protection against sexual misconduct significantly. In addition, a number of offences against persons of 18 years and older are also provided for. These offences include engaging the sexual services of such persons or compelling them to witness sexual offences, sexual acts or self-masturbation, as well as the exposure of the genital organs, anus or female breasts ("flashing") and the exposure of child pornography to persons 18 years or older.

Notably, numerous offences have also been introduced to provide special protection for children. What is particularly useful for the purpose of prosecuting agents involved in child sex trafficking are the broadly defined offences of sexual exploitation, promoting child sex tours, and the sexual grooming of children. Burchell emphasises that the grooming of children so as to encourage and prepare them to commit sexual offences has become a serious concern in South Africa. Minnie points out that "grooming is a complex process to define". Offenders use various methods to overcome a child's resistance and to lure him or her into sexual acts. Youths are ensnared into a so-called "friendship" or "love relationship" by means of communications, especially via the Internet, and by way of meetings where gifts such as clothing, jewellery, music compact discs and cellphones are given freely as a token of "affection". Once a trust relationship is established, children are typically provided with alcohol and drugs and are gradually introduced to sexual acts, which eventually develop into a demand for abusive sexual services.

Other offences designed to protect children include the prohibition against using children for child pornography and against children being exposed to child pornography or pornography. The Sexual Offences Amendment Act also provides special protection like the protection for children for persons who are mentally disabled.

2.2.15	International Co-operation in Criminal Matters Act 75 of 1996

International judicial cooperation, in particular among countries of origin, transit and destination, is essential to combat human trafficking effectively, especially cross-border trafficking. The International Co-operation in Criminal Matters Act 75 of 1996 contributes in this regard by facilitating cooperation between South Africa and foreign countries in criminal matters. These criminal matters include the mutual provision of evidence. In cases where it is in the interests of justice, the act provides for the issuing of a letter requesting assistance from a foreign state in obtaining evidence from a person who is present in such a foreign state.

This act also facilitates the mutual execution of sentences and compensatory orders. For example, where a person who is sentenced to the payment of a fine or of compensation to another person has property only in a foreign state from which the fine or compensation can be recovered, the court may issue a letter of request in which assistance is sought in this regard from the relevant foreign state.

Notably, the act further provides for the confiscation and transfer of the proceeds of crime between the Republic of South Africa and foreign states. In terms of these provisions, assistance may be requested from a foreign state in order to execute a confiscation order, issued in South Africa, in a foreign state in which the person against whom the order is made owns property. A foreign state may on the same basis request South Africa to execute a foreign confiscation order in the Republic. These provisions may be used to ensure justice in some human trafficking cases, especially where confiscation orders against influential organised crime networks can be enforced only in another country in which the perpetrators own property.

3	Interim human trafficking offences

Apart from numerous existing common law and statutory provisions that may be applied to prosecute trafficking agents, trafficking-specific provisions were also recently introduced into South African law.

3.1	Children's Act 38 of 2005

While the South African Law Reform Commission was still in the process of investigating law reform concerning human trafficking, interim provisions on trafficking in children were included in the Children's Act 38 of 2005 (Children's Act) in partial compliance with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol). The purpose of the trafficking provisions in chapter 18 of this act is to combat trafficking in children and to give effect to the Palermo Protocol, which is incorporated into the law of the Republic of South Africa (the Republic).

In short, the Children's Act two main trafficking offences. First, trafficking of children by natural or juristic persons for an exploitative purpose is criminalised. Such trafficking is regarded as a serious offence and imprisonment of up to 20 years may therefore be imposed. Additional protection for children is provided in that it is no defence for the perpetrator that the child or the person having control over the child has consented to the exploitation or illegal adoption. Furthermore, provided that the exploitative purpose is proven, it is also no defence on a charge of trafficking in children that the intended exploitation or adoption did not occur. The Palermo Protocol's obligation to criminalise attempts, participation as accomplices, and organising or directing others to commit this crime is covered by existing legislation on attempt, conspiracy, and incitement to commit a crime.

Apart from criminalising the crime of trafficking, the act also criminalises certain behaviour facilitating trafficking in children in order to cast the net wide enough to include the various role-players that usually profit from this crime. On conviction of this crime of facilitating trafficking in children, a maximum of 10 years' imprisonment may be imposed. In short, the prohibited behaviour entails leasing any property for the purpose of harbouring a trafficked child or distributing information alluding to trafficking. Further, internet service providers are required to report any site on their servers that contains such prohibited information.

The definition in the Children's Actof the term "trafficking" in relation to a child is similar to the definition of "trafficking in persons" contained in the Palermo Protocol. However, there are a number of differences between the definitional formulations. First, the definition in the Children's Act is somewhat broader, in that terms such as "supply" are added as prohibited actions. Secondly, adoption secured through illegal means is also included in the definition of trafficking in children. In agreement with Kassan, it must be pointed out that an "illegal adoption" means the "exploitation of the adoptive system and laws and not necessarily the exploitation of the adopted child".

Even where a child is illegally adopted, the adoptive parents may not have the intention to exploit the child at all. Such illegal adoptions must be distinguished from illegal adoptions that constitute trafficking in children in terms of the Children's Act. For an illegal adoption to qualify as trafficking, Kassan submits that an interpretation should be followed in line with that in the Palermo Protocol, namely that the primary intention of the illegal adoption must be to exploit the child.

Thirdly, the definition of trafficking in the Children's Act differs from the provision in the Palermo Protocol regarding the so-called "means" element. The Palermo Protocol requires that the perpetrator must use at least one of the listed improper means, such as force, threat, fraud or deception, when adults are trafficked, but not for the trafficking of a child under the age of 18 years. In providing special protection for children, the Palermo Protocol lays down that the prescribed action element, namely the recruitment, transportation, transfer, harbouring or receiving of a child for the purpose of exploitation, constitutes trafficking in persons, even if none of the means set out in the definition were used. Unlike the Palermo Protocol, the Children's Act provides that trafficking in children requires the prohibited action to be committed by "any means, including the use of threat, force or other forms of coercion, abduction, fraud, deception" for the purpose of exploitation. One interpretation of "any means" is that no means are required for child trafficking, and thus the definition in the Children's Act corresponds with the definition in the Palermo Protocol. Then again, Kassan points out that a different interpretation of "any means" is that the Children's Act does require one of the specified means to be present to constitute trafficking in children. The latter interpretation is problematic, in that, if the means element is required for trafficking in children, it is not in line with the Palermo Protocol, which waives the means element in regard to child trafficking. The formulation of the "means" element in the definition of "trafficking" in the Children's Act has therefore been "criticised for creating a greater evidentiary burden" than is required by the Palermo Protocol.

A fourth difference pertains to the definition of the term "exploitation" in the Children's Act, which is similar to but not identical to that in the Palermo Protocol. Both definitions of "exploitation" implicitly cover trafficking for the purposes of all types of exploitation. However, the Palermo Protocol stipulates that the term "exploitation" "includes at a minimum" certain examples of exploitative purposes. The Children's Act also covers these examples of exploitation, but adds other examples as well, namely debt bondage, forced marriage, child labour and the removal of body parts.

At first glance it seems that the Palermo Protocol and the Children's Actdiffer also with regard to their scope of application. On the one hand the Palermo Protocol applies to the prosecution of offences established in the protocol, where those offences are "transnational in nature and involve an organised criminal group". On the other, the Children's Act applies to trafficking "within or across the borders of the Republic". With the inclusion of these words the act covers not only transnational trafficking in children to and from other countries but also in-country trafficking within the borders of the Republic. However,it must be borne in mind that the Palermo Protocol has to be interpreted together with the Organized Crime Convention, which provides that the offence of human trafficking must be established in domestic anti-trafficking legislation without requiring that transnational or organised crime elements be present. Therefore, although the scope of application seems different, the broader scope of the Children's Act in fact complies with the Palermo Protocol and the Organized Crime Convention.

Apart from creating trafficking offences, chapter 18 of the Children's Actalso regulates other matters in regard to trafficking in children, such as the provision of international cooperation and extraterritorial jurisdiction. Underpinning the principle of the best interests of the child, the act further provides for the safety of the trafficked child and for specific assistance in returning the child to the Republic, as well as for referral and repatriation procedures. However, Kassan maintains that the provisions for assisting trafficked children in the Children's Act do not fully comply with all of the types of assistance that states parties are obliged to render or consider in terms of the Palermo Protocol. Finally, the Children's Act also provides that, when a court has "reason to believe" that parents or persons with parental responsibilities have trafficked a child, their parental responsibilities and rights may be suspended, with the child being placed "in temporary safe care, pending an inquiry by a children's court".

The counter-trafficking provisions in the Children's Actmake it possible to prosecute offenders for any type of trafficking where a child is the victim. What must be borne in mind, however, is that these provisions remain interim provisions and will be repealed by their incorporation into the proposed counter-trafficking legislation.

3.2	Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

The Criminal Law (Sexual Offences and Related Matters) Amendment Act32 of 2007 (Sexual Offences Amendment Act) criminalises sexual abuse or exploitation comprehensively in a single statute. The act aims to afford complainants involved in sexual offences

the maximum and least traumatising protection that the law can provide ... by establishing a co-operative response between all government departments involved in implementing an effective, responsive and sensitive criminal justice system relating to sexual offences.

Pending the adoption of legislation in full compliance with the Palermo Protocol, transitional anti-trafficking provisions were included in the Sexual Offences Amendment Act, which came into on 16 December 2007. In partial compliance with South Africa's international counter-trafficking obligations, this act criminalises conduct constituting trafficking in persons for sexual exploitation. The act prohibits a person from trafficking any other person, without the consent of that person, for the purpose of sexual exploitation.

The action and means components of the term "trafficking" are defined similarly to those in the Palermo Protocol and include

the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic, by means of –
(i)	a threat of harm;
(ii)	the threat or use of force, intimidation or other forms of coercion;
(iii)	abduction;
(iv)	fraud;
(v)	deception or false pretences;
(vi)	the abuse of power or of a position of vulnerability, to the extent that the complainant is inhibited from indicating his or her unwillingness or resistance to being trafficked, or unwillingness to participate in such an act; or
(vii)	the giving or receiving of payments, compensation, rewards, benefits or any other advantage.

However, the exploitative purpose element in the Sexual Offences Amendment Actfails to comply with the Palermo Protocol, because it provides for an exploitative purpose of a sexual nature only, including

any form or manner of exploitation, grooming or abuse of a sexual nature of such person, including the commission of any sexual offence or any offence of a sexual nature in any other law against such person or performing any sexual act with such person, whether committed in or outside the borders of the Republic.

The issue of consent in the Sexual Offences Amendment Actis approached differently from that in the Palermo Protocol. The latter provides that consent of the trafficked person is irrelevant where any of the prohibited means have been used or if the trafficked person is a child, who is defined as a person under the age of 18 years. On the other hand, the Sexual Offences Amendment Act stipulates that "[a] person ("A") who traffics any person ("B"), without the consent of B, is guilty of the offence of trafficking in persons for sexual purposes".

The act provides that "consent" means voluntary or uncoerced agreement. Unlike the Palermo Protocol, the act proceeds to list a number of circumstances which would negate valid consent, but stipulates that this is not an exhaustive list of circumstances. Apart from a number of other circumstances, the means listed in the Palermo Protocol are also included. The act further provides that children below the age of 12 years are not able to consent validly, because their consent is not regarded as being given "voluntarily or without coercion". The question that arises is: What then is the position regarding alleged consent by children of age 12 to 17 years? The formulation on this issue in the Sexual Offences Amendment Act differs from the provision in the Palermo Protocol, which does not differentiate between children under and over 12 years, but defines a child as any person under the age of 18 years. Hence, it is submitted that this issue needs to be addressed in the proposed counter-trafficking legislation to bring it in line with the provisions in the Palermo Protocol.

Apart from requiring states parties to criminalise the main crime of human trafficking, the Palermo Protocol further requires the criminalisation of related crimes. The Palermo Protocol's requirement that attempts to commit human trafficking be criminalised is already covered in South African law, since the attempt to commit any crime is recognised as a substantive crime in the South African legal system. As regards the obligation to prohibit the organising and directing of human trafficking, the Sexual Offences Amendment Act complies with that obligation, but goes further by also prohibiting a person from ordering, commanding, supervising or controlling the trafficking crime. The act is also more comprehensive than the Palermo Protocol, which criminalises participating "as an accomplice" only in that it criminalises the performance of "any act which is aimed at committing, causing, bringing about, encouraging, promoting, contributing towards or participating in trafficking".

A further aspect in respect of which the act is broader than the Palermo Protocol, and one that is to be welcomed, is that the act introduces the crime of involvement in the trafficking of persons in order to bring to book all agents playing a part in the trafficking process. In this regard, the act provides that any person who

incites, instigates, commands, aids, advises, recruits, encourages or procures any other person to commit, cause, bring about, promote, perform, contribute towards or participate in trafficking, is guilty of an offence of involvement in trafficking in persons for sexual purposes.

In view of the fact that transporters often facilitate human trafficking by moving victims illegally across national borders, the act prohibits all "commercial carriers" from bringing a passenger into or removing a person from South Africa without such a passenger having travel documents for the lawful entry into or departure from the Republic of South Africa (the Republic).This offence overlaps to some extent with the prohibition against assisting another to enter, remain in, or depart from the Republic in contravention of the Immigration Act 13 of 2002 (Immigration Act).However, the Sexual Offences Amendment Act provides that the transporting offender is also liable for paying the cost of the transported person's care, safekeeping and return from South Africa.

Stuurman highlights the problem that the victims of human trafficking are often prosecuted. For example, trafficked persons who are in South Africa without valid documentation because their passports have been confiscated by their traffickers may be prosecuted under the Immigration Act, while victims forced into prostitution may be prosecuted for prostitution. The Sexual Offences Amendment Act addresses this issue by stipulating that a victim of trafficking is "not liable for any criminal offence, including any migration-related offence, which was committed as a direct result of being trafficked".

As regards sanctions for trafficking offences established in the Sexual Offences Amendment Act, there is no specific penal provision included in the act. However, the trafficking offences in section 71(1) and (2) of the Sexual Offences Amendment Act are regarded as serious offences, because they are listed in part I of schedule 2 of the Criminal Law Amendment Act 105 of 1997. Accordingly, a court is obliged to impose a minimum sentence of imprisonment for life on offenders convicted of these trafficking offences, unless the court finds that "substantial and compelling circumstances exist which justify the imposition of a lesser sentence".

4	Conclusion

In order to combat human trafficking efficiently and effectively, law enforcement and prosecution officials must keep in mind that human trafficking is a process rather than a single offence:

Trafficking may involve offenses against the state, such as abuse of immigration laws, document forgery, corruption of government officials, money laundering, and tax evasion. Other violations are directed against victims: unlawful coercion or threat, extortion, aggravated assault, sexual assault, rape, or even murder.

Thus, even without comprehensive counter-trafficking legislation, existing common law crimes and statutory offences remain a significant tool to prosecute criminal conduct committed during the trafficking process. As was pointed out above, existing provisions have already been applied successfully to obtain convictions for trafficking activities in terms of crimes other than human trafficking. In the case of S v Andrews, the accused was sentenced to 17 years' imprisonment for keeping a brothel in terms of the Sexual Offences Act 23 of 1957 as well as for being an accomplice on two charges of common law rape. In 2010, convictions were secured on charges in terms of the Prevention of Organised Crime Act 121 of 1998 and the Immigration Act 13 of 2002 in S v Sayed. Although the comprehensive counter-trafficking legislation is not yet in force, traffickers have been convicted in terms of the current transitional trafficking provisions. On 19 July 2011, Aldina Dos Santos was sentenced to life imprisonment in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 for trafficking three girls from Mozambique to South Africa for sexual exploitation. Thus, pending the enactment of the all-embracing anti-trafficking legislation, there are numerous existing common law crimes and statutory offences that can be utilised to prosecute offenders for acts committed during the trafficking process.

When the Prevention and Combating of Trafficking in Persons BillB7 of 2010 comes into force, its extended provisions will indeed open up additional opportunities to prosecute human trafficking more intensively. Still, without duplicating charges the prosecution should, in addition to trafficking offences, charge trafficking agents with all other relevant offences to ensure that human trafficking is met with the full force of the law. For this reason the arsenal of existing crimes and provisions that may be applicable to prosecute traffickers for crimes other than human trafficking remains a significant component in the South African legal response in respect of the combating of human trafficking. 

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Slabbert 2009 Obiter
Slabbert M "This is my kidney, I can do what I want with it – property rights and ownership of human organs" 2009 Obiter -517

Smith "South Africa's Strategy"
Smith P "South Africa's Strategy to Address Human Trafficking in Persons" (Unpublished contribution delivered at Regional Conference on Prevention and Intervention against Child Trafficking hosted by the Southern Africa Network Against Trafficking and Abuse of Children [SANTAC] 8-9 2008 Maputo)

Snyman Criminal Law
Snyman CR Criminal Law5th ed (LexisNexis Durban 2008)

Snyman "Victims"
Snyman R "Victims of Human Trafficking" in Davis L and Snyman R Victimology in South Africa(Van Schaik Pretoria 2005)

Stuurman 2004 Eye on Human Trafficking
Stuurman L "Anti-trafficking legislation can no longer be delayed" 2004 Eye on Human Trafficking3:5

UN.GIFT "Demand for Forced Labour"
United Nations Global Initiative to Fight Human Trafficking (UN.GIFT) "Demand for Forced Labour and Sexual Exploitation – How and Why It Fuels Human Trafficking" (Background Paper 004 Workshop [UN.GIFT B.P.:004] delivered at The Vienna Forum to Fight Human Trafficking 13-15 February 2008 Vienna)

UN.GIFT "Human Trafficking"
United Nations Global Initiative to Fight Human Trafficking (UN.GIFT) "Human Trafficking for the Removal of Organs and Body Parts" (Background Paper 011 Workshop [UN.GIFT B.P.:011] delivered at The Vienna Forum to Fight Human Trafficking 13-15 February 2008 Vienna)

UN.GIFT "Profiling the Traffickers"
United Nations Global Initiative to Fight Human Trafficking (UN.GIFT) "Profiling the Traffickers" (Background Paper 016 Workshop [UN.GIFT B.P.:016] delivered at The Vienna Forum to Fight Human Trafficking 13-15 February 2008 Vienna)

UNODC Toolkit
United Nations Office on Drugs and Crime (UNODC) Toolkit to Combat Trafficking in Persons – Global Programme against Trafficking in Human Beings(United Nations New York 2006)

UNODC Global Report
United Nations Office on Drugs and Crime (UNODC) Global Report on Trafficking in Persons(UNODC Vienna 2009)

Viljoen Human Rights Law
Viljoen F International Human Rights Law in Africa(Oxford University Press New York 2007)

Weissbrodt and Anti-slavery International Abolishing Slavery
Weissbrodt D and Anti-slavery International Abolishing Slavery and Its Contemporary Forms(Report for the Office of the United Nations High Commissioner for Human Rights HR/PUB/02/4)(United Nations New York 2002)

Register of legislation

Basic Conditions of Employment Act 75 of 1997
Child Care Act 74 of 1983
Children's Act 38 of 2005
Constitution of the Republic of South Africa, 1996
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
Drugs and Drug Trafficking Act 140 of 1992
Films and Publications Act 65 of 1996
General Law Amendment Act 139 of 1992
Human Tissue Act 65 of 1983
Identification Act 68 of 1997
Immigration Act 13 of 2002
International Co-operation in Criminal Matters Act 75 of 1996
National Health Act 61 of 2003
Prevention and Combating of Corrupt Activities Act 12 of 2004
Prevention of Organised Crime Act 121 of 1998
Riotous Assemblies Act 17 of 1956
Sexual Offences Act 23 of 1957
Prevention and Combating of Trafficking in Persons Bill B7–2010

Register of government publications

Proc R19 in GG 27503 of 18 April 2005
Proc R20 in GG 33187 of 14 May 2010

Register of international instruments

Convention Against Transnational Organized Crime (2000)
Palermo Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children) (2000)
International Labour Organization Convention (No. 29) Concerning Forced Labour (1930)
Universal Declaration of Human Rights (1948)

Register of case law

Green v Fitzgerald  1914 AD 88
National Director of Public Prosecutions v Geyser  2008 2 SACR (SCA) 103
National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd; National Director of Public Prosecutions v Seevnarayan  2004 2 SACR 208 (SCA)
NDPP v Mohamed 2002 2 SACR 196 (CC)
R v Hanson 1849 2 C & K 912
R v Holliday 1927 CPD 395
S v Andrews (unreported case no. 27/50/1998; 27 August 2004, Cape Town Regional Court)
S v De Vries  2009 1 SACR 613 (C)
S v Dos Santos  (unreported case; 19 July 2011, Pretoria Regional Court)
S v Eloff (unreported case no. SH599/08; Welkom)
S v Mudaly  (pending case no. 41/890/2007; Durban Regional Court)
S v Netcare Kwa-Zulu (Proprietary) Limited  (unreported case no. 41/1804/2010; 8 November 2010, Durban Regional Court)
S v Nyalungu 2005JOL 13254 T
S v Sawatkan (unreported case no. 41/2045/08; Durban)
S v Sayed (unreported case no. 041/2713/2008; 18 March 2010, Durban Regional Court)
S v Wiphatawaithaya (unreported case no. 317/2/09; Durban)

Register of Internet sources

Fellows 2008 
Fellows S 2008 Trafficking Body Parts in Mozambique and South Africa 

HSRC 2010 
Human Sciences Research Council (HSRC) 2010 Tsireledzani: Understanding the Dimensions of Human Trafficking in South Africa[date of use 25 Mar 2010]

International Crime and Terrorism 2004 www.dfait-maeci.gc.ca
International Crime and Terrorism 2004 Human Trafficking and Migrant Smuggling http://www.dfait-maeci.gc.ca/internationalcrime/human_trafficking-en.asp [date of use 30 Nov 2006]

IOM 2008 iom.org.za
International Organization for Migration (IOM) 2008 No Experience Necessary: The Internal Trafficking of Persons in South Africa http://iom.org.za/site/index.php?option=com_docman&task=doc_details&gid=123Itemid=50 [date of use 4 Nov 2008]

Jordan 2002 www.walnet.org
Jordan AD 2002 The Annotated Guide to the Complete UN Trafficking Protocol (Compiled for the International Human Rights Law Group) http://www.walnet.org/csis/papers/UN-TRAFFICK.PDF [date of use 13 Nov 2008]

NPA 2010a www.pmg.org.za
National Prosecuting Authority (NPA) 2010 National Prosecuting Authority: Human Trafficking Statistics and Case Analysis – Presentation to the Justice and Constitutional Development Portfolio Committee on 16 November 2010 http://www.pmg.org.za/files/docs/101116npa.pdf[date of use 24 Nov 2010]

NPA 2010b 
National Prosecuting Authority (NPA) 2010 National Prosecuting Authority Statistics November 2010 – Adv A van der Byl [date of use 24 Nov 2010]

NPA 2010c www.pmg.org.za
National Prosecuting Authority (NPA) 2010 National Prosecuting Authority: Statistics on Human Trafficking Cases – Presentation to the Justice and Constitutional Development Portfolio Committee on 16 November 2010 http://www.pmg.org.za/files/docs/101116NPAStats.xls [date of use 16 Nov 2010]

Parliamentary Committee on Justice and Constitutional Development 2010 www.pmg.org.za
Parliamentary Committee on Justice and Constitutional Development 2010 Prevention and Combating of Trafficking in Persons Bill (B7-2010): Department's Response to Submissions – Minutes of Meeting of Portfolio Committee on Justice and Constitutional Development, 15 September 2010 http://www.pmg.org.zaof use 24 Nov 2010]

SALRC 2004 www.doj.gov.za
South African Law Reform Commission (SALRC) 2004 Trafficking in Persons. 131      (Issue Paper 25)      http://www.doj.gov.za/salrc/ipapers/ip25_prj
131_2004.pdf [date of use 11 Mar 2008]

SALRC 2006 www.doj.gov.za
South African Law Reform Commission (SALRC) 2006 Trafficking in Persons. 131 (Discussion Paper 111)http://www.doj.gov.za/salrc/dpapers.htm[date of use 11 Mar 2008]

SALRC 2008 www.justice.gov.za
South African Law Reform Commission (SALRC) 2008 Report on Trafficking in Persons. 131 http://www.justice.gov.za/salrc/reports/r_pr131_
trafficking_2008.pdf [date of use 23 Mar 2008]

SAPA 2011 www.news24.com
SAPA 2011 'Human Trafficker Gets Life Sentence' News2420 July 2011 1 http://www.news24.com/printArticle.aspx?iframe&aid=bdbc90ea-5794-403c-95df-e7 [date of use 21 Jul 2011]

SOCA Unit 2009 www.info.gov.za
SOCA Unit (NPA) (Sexual Offences and Community Affairs Unit in National Prosecuting Authority) 2009 Tsireledzani – Prevent, Respond and Support http://www.info.gov.za/issues/humantrafficking/documents/tsireledzani.pdf [date of use 4 Mar 2010]

The Future Group 2007 tfgwebmaster.web.aplu.net
The Future Group 2007 Human Trafficking – a Human Security Crisis of Global Proportions http://tfgwebmaster.web.aplu.net/wwwthefuturegrouporg/id20.html [date of use 20 Aug 2008]

UN General Assembly 2000 www.unodc.org
UN General Assembly 2000 Addendum: Interpretative Notes for the Official Records (Travaux Préparatoires) of the Negotiation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime. A/55/383/Add.1 http://www.unodc.org/pdf/ctoccop_2006/04-60074_ebook-e.pdf [date of use 18 Nov 2008]

UNODC 2004 www.unodc.org
United Nations Office on Drugs and Crime (UNODC) 2004 Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto http://www.unodc.org/unodc/en
/treaties/CTOC/legislative-guide.html

UNODC 2008 www.unodc.org
United Nations Office on Drugs and Crime (UNODC) 2008 to Combat Trafficking in Persons – Global Programme Against Trafficking in Human Beings. New York: United Nations http://www.unodc.org/documents
/human‑trafficking/HT_Toolkit08_English.pdf [date of use 16 Oct 2008]

UNODC 2009 www.unodc.org
United Nations Office on Drugs and Crime (UNODC) 2009 Model Law for Trafficking in Persons http://www.unodc.org/documents/human-trafficking/
Model_LawJul 2010]

US Department of State 2007 www.state.gov
United States of America Department of State (US Department of State) 2007 Trafficking in Persons Report http://www.state.gov/g/tip/rls/tiprpt/2007 [date of use 22 Jul 2007]

US Department of State 2008 www.state.gov
United States of America Department of State (US Department of State) 2008 Trafficking in Persons Report http://www.state.gov/g/tip/rls/tiprpt/2008 [date of use 1 Aug 2008]

US Department of State 2009 www.state.gov
United States of America Department of State (US Department of State) 2009 Trafficking in Persons Report http://www.state.gov/documents/organization
/123357.pdf [date of use 30 Jun 2009]

US Department of State 2010 
United States of America Department of State (US Department of State) 2010 Trafficking in Persons Report of use 18 Jun 2010]

US Department of State 2011 www.state.gov
United States of America Department of State (US Department of State) 2011 Trafficking in Persons Report http://www.state.gov/g/tip/rls/tiprpt/2011 [date of use 15 Jul 2011]

Zimmerman et al 2006 www.lshtm.ac.uk
Zimmerman C et al Smiles: a Summary Report on the Physical and Psychological Health Consequences of Women and Adolescents Trafficked in Europe (Report for the London School of Hygiene & Tropical Medicine, London) http://www.lshtm.ac.uk/genderviolence[date of use 14 Jul 2008]

List of abbreviations

CILSA	Comparative and International Law Journal of Southern Africa	
Hum Rts Q	Human Rights Quarterly	
ILSA J Int'l & Comp L	ILSA Journal of International & Comparative Law 	
Med L Rev	Medical Law Review	
NYUJ Int'l Law & Pol	New York University Journal of International Law and Politics	
Trafficking Protocol	Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime	
UNCTOC	Convention Against Transnational Organized Crime	
Vanderbilt J Transnat'l L	Vanderbilt Journal of Transnational Law