Abstract
Having ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, South Africa is obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument. However, by mid-2011, South Africa had not enacted the required comprehensive counter-trafficking legislation. The question that now arises is if the absence of such anti-trafficking legislation poses an insurmountable obstacle to the prosecution of traffickers for trafficking-related activities. In asking this question the article examines the utilisation of existing crimes in order to prosecute and punish criminal activities committed during the human trafficking process. Firstly, a selection of existing common law and statutory crimes that may often be applicable to trafficking-related activities is mapped out. Secondly, transitional trafficking provisions in the Children's Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are discussed. Finally, since the Prevention and Combating of Trafficking in Persons Bill B7 of 2010 will 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.
Highlights
South Africa has ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children[1] and is obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument
Pending the finalisation of the Prevention and Combating of Trafficking in Persons Bill B7 of 2010, the prosecution made use of existing legal provisions to bring trafficking agents to book.[5]. 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
It can be argued that the misuse of the ukuthwala tradition to force girls and women into unwanted marriages may constitute human trafficking for the purposes of sexual exploitation
Summary
South Africa has ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol)[1] and is obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument. Proficient prosecutors have addressed this situation by securing significant convictions in a number of trafficking cases.[4] 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.[5] 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. Since the 2010 Trafficking Bill will 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! 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."
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
