War against trafficking
South Africa currently has no comprehensive human trafficking legislation. Pending its promulgation, the Sexual Offences Act is the most appropriate legislation to charge people engaged in human trafficking for sexual exploitation.
The Sexual Offences Act, known in full as the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and the Children's Act 38 of 2005 contain provisions relating to trafficking in people pending the adoption of comprehensive legislation.
In addition, several common law and statutory law provisions could be used to prosecute suspects.
Under common law, depending on the circumstances of each case, suspects could be charged with kidnapping, assault, rape, attempted murder or murder and extortion.
But challenges arise when applying these laws to cases involving the cross-border crime of human trafficking. In the case of kidnapping, if the person was kidnapped in another country then brought to South Africa, it would not be possible to charge the perpetrator with kidnapping.
This is because the actual kidnapping would fall outside the jurisdiction of South African courts.
Kidnapping is often used as the means of capturing people, who are then transported to be used in the sex trade in other countries.
But the option for legal action would remain open, as the circumstances relating to the kidnapping may be relevant in order to shed light on any offences that might have been committed here.
Charges of attempted murder can be laid if a trafficking victim is infected with HIV as a result of being raped. Where the victim has died from the disease, a charge of murder could be laid against the perpetrator.
From the moment of being involuntarily drafted into the criminal underworld of human trafficking, victims are often subjected to assault by their captors, to break their spirit and to make them comply with demands.
Various options are available to prosecute perpetrators. A common assault charge could be laid against perpetrators who intentionally applied force to a victim or threatened to use force.
An indecent assault charge can be laid if perpetrators intentionally assaulted, touched or handled a victim in an indecent way or with indecent intentions.
Although this form of assault usually happens as the actual application of force, it may include frightening, either through actions or threats into believing they will be indecently assaulted.
Perpetrators could also be charged with assault with intent.
Both the intention to cause grievous bodily harm and the act of doing so make sufficient grounds to lay the charge.
Rape charges can be made when females are forced to have sexual intercourse against their will. Due to the anonymity of the sex trade, it is not always possible to track down clients.
Rape charges can be laid against those who transport victims. They can also be charged with being accomplices to rape, as they force victims to have sex with clients, and wittingly associate with the commission of a crime by giving clients the opportunity to commit rape.
But if the prosecution cannot prove that the client has raped a victim, a trafficker who has forced a victim to have sex with a client cannot be charged as an accomplice to the offence.
This is because an accomplice's liability is accessory in nature so that there can be no question of an accomplice without a perpetrator.
In addition to a rape charge, an attempted murder charge could be laid against perpetrators of a victim of trafficking. They could be charged with extortion, better known as blackmail, where victims of trafficking are threatened with retaliation against their families as a way of forcing them to submit to the demands of perpetrators.
Because of the same consideration regarding cross-border kidnapping, it would not be possible to charge perpetrators with any of the offences mentioned above, if these offences were committed outside South Africa.
The Sexual Offences Act, the Riotous Assemblies Act, Immigration Act, Basic Conditions of Employment Act, Domestic Violence Act and the Prevention of Organised Crime Act can be used to prosecute those involved in human trafficking by tackling specific aspects of the crime, but not the crime itself.
Despite the best efforts of South African courts to clamp down on practices related to human trafficking, they are limited by current legislation, so it is important to promulgate comprehensive trafficking legislation.
l Lowesa Stuurman is a researcher at the South African Law Commission.