A Comparative Study on Human Trafficking as a Crime in South Africa

• Jurisdiction: South Africa
• Date: 01 December 2023
• Pages: 1-25
• Author: Jenine Ramsamooj
• Published date: 01 December 2023
• publishedBy: UNISA Press
• DOI: 10.25159/2522-6800/12459

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/12459

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 38 | Number 2 | 2023 | #12459| 25pages

© The Author2023

Published by Unisa Press. This is an Open Access article distributed under the terms of the

Creative CommonsAttribution-ShareAlike 4.0 International License

(https://creativecommons.org/licenses/by-sa/4.0/)

A Comparative Study on Human Trafficking as a

Crime in South Africa

Jenine Ramsamooj

https://orcid.org/0009-0003-3284-8970

University of South Africa

jeninevirtual@gmail.com

Abstract

With millions of people trapped in modern-day slavery, human trafficking is

largely misunderstood, owing tolimited data and research. Present-day human

trafficking trends are linked to issues such as corruption, funding, public

awareness, and poor anti-trafficking coordination. Over centuries, human

trafficking has taken on a variety of forms ranging from enslavement in all its

formsto organ removal. South Africa’s most significantachievementin

combatting human trafficking is its own anti-trafficking legislation, namely the

Prevention and Combatting of Trafficking in Persons Act of 2013. However,

some provisions of this Act remain ineffective, thus impeding the fight against

trafficking in the country. This article focuses on South Africa’s trafficking

trends and anti-trafficking responses. It also highlights the hindrances

obstructing the effective enforcement of its legislation by comparison to the

first-world country Canada, to gain an understanding of effective anti-

trafficking administration and execution to ultimately provide recommendations

for South Africa to follow. For example, years before South Africa, Canadahad

already responded to international pressures regarding its anti-trafficking

efforts. The country focused ample resources and funding on its anti-trafficking

task team while South Africa followed a piecemeal approach inaddressing

human trafficking. This stems from a misunderstanding of the crime and policy

frameworks, and mismanagement of funds.This article proposes that the South

African government should strengthen its anti-trafficking measures by making

funds easily accessible to victims and educating front-line responders to

communicate effectivelywith victims.

Keywords: human trafficking; comparative law; South Africa; Palermo Protocol;

PACOTIP.

Ramsamooj

2

Introduction

Legislative action for the suppression of human trafficking began after the abolishment

of slavery.1The earliest legislative measures against human trafficking began in 1904,

when states wanted to regulate and suppress the trafficking of white women.2The

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women

and Children 2000 (Palermo Protocol) was created by the United Nations after various

political negotiations and debates.3This piece of legislation paved the way for the

creation of the first internationally recognisable definition of human trafficking. The

Palermo Protocol supplements the United Nations Convention AgainstTransnational

Organized Crime of 2000 (UNTOC), and is meant to complement its sister-protocol,

the United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air.4

Accordingly, Article 3(a) of the Palermo Protocol defines human trafficking as

(a)‘Trafficking in persons’ shall mean the recruitment, transportation, transfer,

harbouring or receipt of persons, by means of the threat or use of force or other forms

of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position

of vulnerability or of the giving or receiving of payments or benefits to achieve the

consent of a person having control over another person, for the purpose of exploitation.

Exploitation shall include, at a minimum, the exploitation of the prostitution of others

or other forms of sexual exploitation, forced labour or services, slavery, or practices like

slavery, servitude, or the removal of organs.

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth

in subparagraph (a) of this article shall be irrelevant where any of the means set forth in

subparagraph (a) have been used.

c) The recruitment, transportation, transfer, harbouring, or receipt of a child for the

purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not

involve any of the means set forth in subparagraph (a) of this article.

(d) ‘Child’ shall mean any person under 18 years of age.5

1 Lindsey King, ‘International Law and Human Trafficking’ (2013) Tropical Research Digest: Human

Rights and Human Trafficking Human Rights Welfare 88.

2 UN, ‘International Agreement for the Suppression of the “White Slave Traffic’ (signed at Paris on

18 May 1904) UnitedNations Treaty Series 11. This agreement focused primarily on the prot ection

of female human trafficking victims and awarded protection to white women only. Because of this,

many felt that the document was based on racist and conservative ideals and was amended by UN,

‘Protocol’ (signed at Lake Success, New York 4 May 1949).

3 UNGA, Convention against Transnational Org anized Crime (Res adopted by the General Assembly,

8 January 2001) A/RES/55/25 and UNGA, Protocol against the Smuggling of Migrants by Land, Sea

and Air, Supplementing the United Nations Convention against Transnational Organized Crime (15

November 2000).

4 US Department of State, ‘2021 Trafficking in Persons Report’ 68–73

<https://www.state.gov/reports/2021-trafficking-in-persons-report/ pdf> accessed 5 June 2022.

5 Palermo Protocol Art 3(a).