Trafficking in persons and forced labour of migrants in fisheries: Law enforcement challenges in South Africa

• Jurisdiction: South Africa
• Citation: 2018 JOLGA 1
• Published date: 14 April 2020
• Pages: 1-51
• Author: Singlee, S.
• Date: 14 April 2020

1

TRAFFICKING IN PERSONS AND FORCED

LABOUR OF MIGRANTS IN FISHERIES: LAW

ENFORCEMENT CHALLENGES IN SOUTH

AFRICA*

SUFINNAH SINGLEE†

Lecturer, Department of Commercial Law,

University of Cape Town

EMMA WITBOOI‡

Research Associate, Public Law, Nelson Mandela University,

PescaDOLUS International Fisheries Crime Research Network

There is ample evidence of heightened criminal activity occurring in

the global fisheries sector, including trafficking in persons and labour

exploitation. While South Africa continues to see its own share of

these offences within the waters under its jurisdiction, the government

has yet to make sufficient strides towards eliminating these offences

in the fisheries sector despite the recent enactment of South Africa’s

first comprehensive anti-trafficking statute. This paper focuses on the

need for an improved law enforcement response at sea ports of entry

in South Africa to identify and assist victims of severe forms of labour

exploitation. The discussion centres on key law enforcement

challenges arising out of the failure to view trafficking in persons and

forced labour as a type of ‘fisheries crime’, the capacity gaps on the

part of the relevant compliance and enforcement officials as well as

the absence of a cross-departmental and agency strategy designed to

target these crimes in fisheries. The challenges are analysed and

suggestions are made for potential improved enforcement responses.

[Keywords] Trafficking in persons, forced labour, labour

exploitation, migrant fishers, law enforcement, transnational

organised fisheries crime, South Africa

* The authors wish to acknowledge the valuable and insightful input and

contributions made by Rebecca Surtees, Cassiem Augustus, Dane du

Plessis, Graham Bradfield and the anonymous reviewers. The views

expressed are the authors’ own and do not necessarily represent those

of any present or former employers. Any errors are the authors’ own.

† LLB LLM LLM.

‡ BA LLB LLM PhD.

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2 JOURNAL OF OCEAN LAW & GOVERNANCE IN AFRICA

I INTRODUCTION

In recent years, a number of reports have begun to shed light on

the exploitation of migrant fishers in South Africa’s territorial

waters. The exploitation itself is often severe and frequently

takes the form of trafficking in persons and forced labour. While

the government has made some strides towards complying with

international anti-trafficking-in-persons laws, its response to

this problem, specifically in the fisheries sector, indicates that

an effective law enforcement approach is still lacking.1

1 According to the US Department of State’s Trafficking in Persons Report

(2018) (‘the 2018 TIP Report’) 388, South Africa was downgraded from

Tier 2 to Tier 2 Watch List in 2018 as a result of the government’s

failure to provide sufficient funding to support the full implementation

of domestic anti-trafficking law by frontline officers over the past two

years. Notably, South Africa has retained this ranking for the second

consecutive year (see US Department of State Trafficking in Persons

Report (2019) (‘the 2019 TIP Report’) 425). The main areas of concern

that have informed the 2019 ranking include the following: low

investigation and prosecution rates, particularly relating to traffickers

linked to international syndicates; corruption and official complicity;

poor victim identification due to the lack of skills training and poor

capacity building; low victim referral and protective care rates for

identified trafficked victims; lack of government funding of anti-

trafficking efforts preventing front-line responders from implementing

the domestic anti-trafficking law; and the government’s failure to

promulgate statutory regulations that would allow foreign trafficking

victims access to immigration relief (2019 TIP Report 425). The TIP

reports are published annually by the US State Department’s Office

to Monitor and Combat Trafficking in Persons and serves to rank

governments based on their perceived efforts to acknowledge and

combat trafficking in persons. Countries are divided into four different

tiers based on their compliance with standards outlined in the 2000

Trafficking Victims Protection Act (TVPA). Tier 1 countries fully meet

the TVPA’s minimum standards for the elimination of trafficking in

persons. Tier 2 countries do not fully comply with the TVPA’s minimum

standards, but are making significant efforts towards compliance. The

same applies to Tier 2 Watch List countries. However, in the case of

those countries, the number of victims of severe forms of trafficking

is very significant or is significantly increasing. There is a failure to

provide evidence of increasing efforts to combat severe forms of

trafficking in persons from the previous year or there is a determination

that a country is making significant efforts towards compliance with

minimum standards based on commitments by the government to take

additional future steps over the next year. As far as they are concerned,

Tier 3 countries do not fully meet the minimum standards and are not

making significant efforts to do so.

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Trafficking in persons and forced labour of migrants in fisheries:

Law enforcement challenges in South Africa 3

This paper focuses on the need for an improved law en-

forcement response at sea ports of entry in South Africa so

as to identify and assist victims of severe forms of labour

exploitation. The discussion centres on key law enforcement

challenges broadly arising out of: (a) the failure to view

trafficking in persons and forced labour as a type of ‘fisheries

crime’; (b) the capacity gaps on the part of the relevant com-

pliance and enforcement officials; and (c) the absence of a cross-

departmental and cross-agency strategy designed to target these

crimes in fisheries. The challenges are analysed and suggestions

are made for potential improved enforcement responses.2

The structure of the paper is as follows. It first provides a

background to the discussion, outlining the phenomena of

trafficking in persons and forced labour in the South African

marine-fisheries sector with reference to relevant examples.

Thereafter, the paper outlines the relevant South African

legal framework, including the core legal duties imposed by

domestic law on law enforcement officers vis-à-vis suspected

victims of trafficking in persons and forced labour. The

next section discusses the aforementioned law enforcement

challenges specific to the fisheries sectors. The paper concludes

by identifying areas where law enforcement efforts could be

enhanced to address these crimes.

II TRAFFICKING IN PERSONS AND FORCED

LABOUR IN THE SOUTH AFRICAN MARINE

FISHERIES SECTOR

(a) Introduction

For some time, there has been increasing attention globally on

the problem of labour exploitation within the fisheries sector.3

2 This paper does not include a discussion on identifying and prosecuting

‘less serious’ forms of labour abuses in the fisheries sector. Whilst it is

recognised that this vast sphere of exploitation falling outside of forced

labour and trafficking in persons in the fisheries sector is worthy of

research towards improved response, it falls beyond the limited scope

of this paper.

3 See S Chantavanich, S Laodumrongchai & C Stringer ‘Under the

shadow: Forced labour among sea fishers in Thailand’ (2016) 68 MP

1; Environmental Justice Foundation Out of the Shadows: Improving

Transparency in Global Fisheries to Stop Illegal, Unreported and

Unregulated Fishing (2018); Environmental Justice Foundation

Human Trafficking in Taiwan’s Fisheries Sector (2018); Environmental

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