Jacob Tseko Mofokeng - Human Trafficking Crim Sped1a 2014 A9

Mofokeng-Olutola Acta Criminologica: Southern African Journal of Criminology
Special Edition No. 1/2014: Research and Application in Criminology and Criminal Justice
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EXPERT REFLECTIONS ON CHALLENGES EXPERIENCED TO

ADDRESS HUMAN TRAFFICKING IN SOUTH AFRICA PRIOR TO
THE IMPLEMENTATION OF THE PREVENTION AND COMBATING
OF TRAFFICKING IN PERSONS ACT 7 OF 2013
Jacob Mofokeng1 and Adewale Olutola2
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ABSTRACT
It is argued in this article that human trafficking-related cases in South Africa are difficult to
measure in terms of statistics. However, research suggests that the problem of human
trafficking is relatively widespread. On 29 July 2013 Pres. Jacob Zuma signed the Prevention
and Combating of Trafficking in Persons Act, 2013 (Act No 7 of 2013), giving South Africa,
for the first time, a single statute that addresses human trafficking holistically. Previously, the
legislative framework dealing with human trafficking had been fragmented posing challenges
for the Criminal Justice System (CJS) to adequately respond to human trafficking related
cases. Before this legislation was signed into law, a study was conducted for a period of two
years (2012-2013) within Gauteng, Kwazulu-Natal as well as the Western Cape. The aim of
this study was to solicit the views of experts within the South African Police Service (SAPS),
the Department of Home Affairs (DHA) as well as the National Prosecution Authority (NPA)
regarding the challenges posed by human trafficking, as experienced by these role-players,
and how the CJS responded to such challenges. Thus, this article reflects the experiences of
these experts regarding the challenges brought by human trafficking and their preparation to
address these challenges; the characteristics of investigated cases; and the investigation and
prosecution of human trafficking cases in the absence of human trafficking legislation. With
the ‘enabling legislation’ just been signed into law, an important question is: Are we yet
there? This article provides recommendations based on the findings as well as the
operationalisation of the Act on regulations that are required to be made by key role-playing
departments.
Key words: Criminal justice system, human trafficking; policing, slavery.
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INTRODUCTION
Human trafficking is not a crime of nowadays only, since in Ancient times, human
trafficking was there in the different corners of the whole world. The first known human
trafficking incident is written in the Biblical Story of Joseph, when he was trafficked by his
own brothers to some Midianite traders for only twenty pieces of silver (Genesis 37 verses
12-36). Even today, human trafficking occurs everywhere in the world. Kreston (2007: 35)
st
asserts that trafficking in human beings is generally referred to as the 21 century’s slavery,
and it has been asserted that slavery/trafficking is more common now than at any time in
history, from the Roman Empire to the transatlantic slave trade. For the purpose of this
article, the researchers saw it fitting to focus on human trafficking in the South African
context as there are conflicting opinions regarding the prevalence and the extend of this
crime.
Over the past two decades, the South African CJS and the public has become
increasingly concerned about human trafficking. In response, researchers have attempted to
highlight the scourge and challenges brought by human trafficking in South Africa (Allais,
2008; Di Nicola, 2007; Du Toit, Hunziger, Marks & Rajiv, 2005; Hilton, 2007; Kreston,
_______________________
1.
Dr. Senior Lecturer. Department of Safety & Security Management, Tshwane University of Technology,
Pretoria. Email: MofokengJT@tut.ac.za.
2.
Dr. Senior Lecturer. Department of Safety & Security Management, Tshwane University of Technology,
Pretoria. Email: olutolaaa@tut.ac.za.
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2007; Delport, 2007, Kruger, 2012; Kruger & Oosthuizen, 2012; Martens, Pieczkowski &
van Vuuren-Smyth, 2003; Mollema, 2013; Molo Songololo, 2000a, 2000b & ; National
Prosecuting Authority (NPA), 2009; Pharoah, R. 2006; Roelofse, 2011). While this article
draws on previous studies of human trafficking in South Africa, the evidence base of many of
these studies is problematic to quantify the extent of the problem due to the delay of signing
the Prevention and Combating of Trafficking in Persons Bill into law. United States of
America (USA) President Obama in his speech to the Clinton Global Initiative in September
2012 was quoted concerning human trafficking:
It ought to concern every community, because it tears at our social fabric. It
ought to concern every business, because it distorts markets. It ought to concern
every nation, because it endangers public health and fuels violence and
organised crime. I’m talking about the injustice, the outrage, of human
trafficking, which must be called by its true name-modern slavery (MacAskill,
2012).
Research asserts that this modern day slavery otherwise known as trafficking in
persons or human trafficking can be described as the recruiting, harbouring, transporting,
providing, or obtaining a person for compelled labour or commercial sex acts through the use
of force, fraud, or coercion (Davidson, 2008; Dess, 2013). The prevalence of human
trafficking in South Africa is very difficult to measure given available data on the subject.
Among other gaps in the current state of knowledge about human trafficking, there are little
empirical and reliable official data from the CJS on the scale of the phenomenon. However,
research by International Organization for Migration (IOM) in South Africa (2009), suggests
that the problem is relatively widespread in South Africa.
Despite the attention and resources directed at combating this crime by the printed
media, research indicates that fewer cases of human trafficking in South Africa have been
identified and prosecuted than would be expected based on estimates of the problem, causing
speculation that the estimated number of human trafficking victims reported recently are
exaggerated, and sensational as Gould (2006: 19) argues that “such overestimations, while
successful in capturing public attention and generating moral outrage, do not provide a sound
basis for policy-making and resource allocation”.
Gould (2006) as well as the African Centre for Migration and Society (2013) argue
that the incidence of human trafficking is grossly overestimated in South Africa. Against this
background, it is yet unclear from the expert perspectives, the extend of the problem and
which practices employed would improve the ability of the South African CJS to identify,
investigate, and successfully prosecute human trafficking cases. This study seeks to fill these
gaps. Using a multi-method approach to examining the way CJS, namely the South African
Police Service (SAPS), DHA, prosecutors, and courts investigate and prosecute human
trafficking cases, the authors discuss challenges to the identification and investigation of
these difficult cases, and propose strategies for overcoming the barriers to investigation and
prosecution of human trafficking cases in South Africa.
CLARIFICATION OF CONCEPTS
Human Trafficking
The United Nations (UN) Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children (UN General Assembly Resolution 55/25)
defines human trafficking or trafficking in persons as “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
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the consent of a person having control over another person, for the purpose of
exploitation” (United Nations Office on Drugs and Crime, 2004: 41-51).
The country’s legal position on human trafficking is set out in the Prevention
and Combating of Trafficking in Persons Act 2013. Though the Act was signed into law
in July 2013, it is not yet operational, as supporting regulations have yet to be passed.
The Act employs a wider definition of trafficking than that of the UN. According to the
Act, a person is guilty of trafficking if he or she delivers, recruits, transports, transfers,
harbours, sells, exchanges, leases or receives another person within or across the
borders of the Republic” for the purposes of exploitation (South Africa, 2013). This
may be done through:
- The threat of harm;
- The threat or use of force or coercion;
- The abuse of vulnerability;
- Fraud;
- Deception;
- Abduction;
- Kidnapping;
- Abuse of power;
- Directly or indirectly giving or receiving payments or benefits to obtain the
consent of a person having who has control or authority over another; or
- Directly or indirectly giving or receiving payments, compensation, rewards,
benefits or any other advantage.
Human smuggling
In contrast to trafficking, human smuggling is defined by inter-state institutions as:
obtaining material benefit for assisting someone to cross a border in a manner which is
deemed illegal by states (United Nations, 2000). The interpretation by the authors based on
the United Nations (2000) definition is that smuggling is committed by obtaining the illegal
entry of a person into a country for financial or other material benefit. A smuggled migrant
will ordinarily have agreed to be smuggled. The definition of human smuggling, however, is
contested and political, and social scientists have provided alternative definitions and
criticised the conceptual scope of the inter-state definition (Ahmad, 2011: 6).
How is human trafficking different to human smuggling?

Human trafficking differs from smuggling by the activity, the means, and the purpose of
action:
(a) the activity refers to some kind of movement either within or across borders, (b)
the means relates to some form of coercion or deception, and (c) the purpose is the
ultimate exploitation of a person for profit or benefit of another. Where people are
vulnerable because of ignorance, need, war, poverty, crisis, desperation,
marginalisation, and fear, they are at risk of falling into the hands of those who wish
to exploit them (Martin & Callaway, 2011: 225).
The above interpretation shows that human trafficking and human smuggling can be
difficult to tell apart for many reasons. It is possible, though not usually the case that people
who pay to be smuggled may ultimately become victims of trafficking; traffickers may act as
smugglers; and a smuggled person may suffer conditions that make it hard to believe they
gave their consent. According to most interpretations, exploitation is essential to the legal
characterisation of trafficking, whereas border crossing is not an essential element in
trafficking (Baird, 2013; Icduygu & Toktas, 2002). Baird (2013: 7), points out that smuggling
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is cross-border whereas trafficking is not necessarily cross-border. The main focus of the
definition of trafficking is on coercion and exploitation and the lack of consent:
[T]he main components which separate human trafficking from human smuggling are
the elements of force, fraud and coercion, a clear exploitation phase in the case of
human trafficking, as well as the fact that human smuggling always involves the
crossing of international borders, while human trafficking can also occur within
countries (Peterka-Benton, 2011: 217).
Baird (2013: 7) argues that the definitions distinguish between a smuggled migrant
and a victim of trafficking: smuggling is a migration issue, where controls on admission and
settlement are infringed, and trafficking is a human rights issue, where there is an individual,
identifiable victim. However, the international legal distinction between smuggling and
trafficking is difficult to maintain in empirically observed social contexts. There are instances
where the terms overlap or where a grey area (Leman & Janssens, 2007: 1379) emerges
between voluntary migration and rights-violating coercion and exploitation.
HISTORIC OVERVIEW OF LEGISLATION GOVERNING HUMAN

TRAFFICKING IN SOUTH AFRICA
Countries involved in trafficking are divided into three categories: countries of origin,
countries of transit, and countries of destination; with victim status determining this
designation (Kruger & Oosthuizen, 2012; Kutnick, Belser & Danailova-Trainor, 2007). A
country may be included in more than one category, and may be included in all three
categories simultaneously. South Africa is designated to all three these categories (Kreston,
2007; Kruger & Oosthuizen, 2012). South Africa is a signatory to the Protocol to Prevent,
Suppress and Punish Trafficking in Persons (Najemy, 2010: 171-191), especially women and
children. As a signatory, South Africa is required to address human trafficking as a crime and
make it punishable by law. In July 2013, South African president Jacob Zuma signed the
Prevention and Combating of Trafficking in Persons Bill into law. Breakthrough in this
direction was the result of activism in the form of public interest and civil society in South
Africa. The Prevention and Combating of Trafficking in Persons Act (Act No7 of 2013)
(South Africa, 2013) lists three requirements that have to be met for human trafficking to
have occurred:
 A person has to be delivered, recruited, transported, transferred, harboured, sold,
exchanged or leased within or across the borders of South Africa.
 There has to be a threat or use of force, coercion, abduction, fraud, deception, abuse
of power or vulnerability, or payments or benefits to a person in control of the victim.
 The victim has to be trafficked for the purpose of exploitation, which includes sexual
exploitation, servitude, forced labour, child labour or the removal of body parts.
It needs to be emphasised that Act No 7 of 2013 is the first of its kind in the Republic
of South Africa in terms of a comprehensive enactment in the prevention and combating of
human trafficking. In its opening paragraph, this Act provides, among others, matters that
give effect to South Africa’s obligation’s concerning the trafficking of persons in terms of
international agreements; to provide for penalties that may be imposed in respect of the
offences; to provide for measures to protect and assist victims of trafficking in persons; to
provide for co-ordinated implementation, application and administration of the Act; to
prevent and combat the trafficking in persons within or across the borders of the Republic;
and to provide for matters connected therewith.
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The requirements as stipulated in the above Act offers a more detailed explanation of
the elements that constitute human trafficking. The basic challenge that confronted anti-
trafficking praxis in South Africa prior to the implementation of the Prevention and
Combating of Trafficking in Persons Act (South Africa, 2013) was the lack of a uniformed
definition of human trafficking. A clear understanding of these requirements is important as it
excludes certain activities such as voluntary sex work and illegal migration. The Act (Act
No7 of 2013) is significant as it provides a direct legal framework for human trafficking. The
new legislation clearly makes trafficking in persons a criminal offence. In addition, it also
includes offences such as debt bondage; the possession, destruction, concealment of and
tampering with travel documents; and using the services of victims of trafficking, among
others. Offenders found guilty of this modern day slavery will be fined up to R100 million
(US$10 million) or risk life imprisonment or both, if convicted. Perpetrators may also be
required to pay their victims compensation.
In the past (prior to 30 July 2013), South Africa collectively used legislation to
address human trafficking such as the Sexual Offences Act 23 of 1957 (Kreston, 2007; South
Africa, 2013), the Child Care Act 74 of 1983, as amended (South Africa, 2013), the
Prevention of Organised Crime Act 121 of 1998 (South Africa, 2013), the Prevention of and
Combatting of Corrupt Activities Act 12 of 2004 (South Africa, 2013) as well as the
Immigration Act 13 of 2002 as amended (South Africa, 2013), the Films and Publications Act
65 of 1996, as amended (South Africa, 2013), the Corruption Act 94 of 1992 (South Africa,
2013), Sexual Offences Act 23 of 1957 (South Africa, 2013), the Child Care Act 74 of 1983,
as amended (South Africa, 2013) as well as the Children’s Act 38 of 2005 (South Africa,
2013) that contains a chapter on trafficking in children. These Acts, according to the Human
Trafficking Strategy (South Africa, 2010), inter alia, criminalises child trafficking (sections
281, 282 & 284) and provides for a fine or imprisonment of up to 20 years or both a fine and
such imprisonment for anyone convicted of this crime (section 305(8)). The provisions in this
Act as reflected, limit trafficking offences to those committed against ‘children’; whilst the
inclusion of trafficking in the Sexual Offences Bill is directed at both adults and children, but
are limited to trafficking for sexual purposes.
It was only prior to the 2010 Soccer World Cup that the South African Prevention and
Combating in Trafficking in Persons Bill was tabled and fast tracked through the
Parliamentary process, even though it took some time to be enacted. There was heightened
attention around trafficking in persons due to the expectation that the World Cup in South
Africa would see a rise in trafficking in persons. Fortunately, however, the bill was not
passed in its present format, as several key adjustments still needed to be made. This included
a clear and distinct definition of trafficking in persons, to ensure that the proposed bill
provides an effective means to address human trafficking in South Africa (Delport, Koen &
Mackay, 2007).
The requirement that the Prevention and Combating of Trafficking in Persons Bill
should be in line with international legislation stipulated in the “Palermo Protocol” was a
problematic requirement in implementing the bill, due to the differences between the nature
of human trafficking internationally and the South African experience. Motivations, which
are indigenous to South Africa such as muti murders, or the belief that sexual intercourse
with children would cure HIV/AIDS, are not taken into account by international legislation
on trafficking. In addition, inland or domestic trafficking, which is the movement of people
within the country requires special attention. The issue of ukuthwala (forced marriage) in the
Eastern Cape and KwaZulu-Natal supports the need for the formulation of laws acclimatised
to South Africa. Ukuthwala is a form of inland human trafficking that sees young girls being
forcefully removed from their homes and taken to the homes of their ‘admirers’ to become
wives (Delport, Koen & Mackay, 2007).
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The laws that were to be developed should be cognisant of these nuances. The
inaccurate classification of what human trafficking entails may marginalise victims that do
not fall under generalised definitions, and dilutes the efforts at combating it, by not explicitly
differentiating “human trafficking” from “people smuggling”. It is thus a blessing in disguise
that efforts to push the legislation through parliament before the World Cup failed to
materialise due to the glaring gaps that could jeopardise measures to prevent and combat
trafficking, and provide protection and assistance to trafficking victims. The Prevention and
Combating of Human Trafficking Act (Act No7 of 2013) (South Africa, 2013) provides a
legal framework that contains measures that prevent trafficking, prosecute traffickers, and
protect trafficking victims.
Victims of trafficking experience immense trauma throughout the trafficking process
(Cucumanova, 2010; Loong, 2010). In addition to creating very specific offences that have a
bearing on trafficking in persons, the current legislation also focuses on the plight of the
victims, providing them with protection and assistance to overcome their traumatic and often
life threatening experiences. Legal responses to the trafficking typically adopt a three-prong
framework focusing on the ‘three Ps’, namely, prosecution, protection, and prevention-
prosecuting traffickers, protecting trafficked persons, and preventing trafficking. Although it
is not the focus of this article, however, in practice, these responses focus on the prosecution
of traffickers and, to a lesser extent, protect the victims.
Chapter 1 of the Act provides for the definitions, interpretation and the objects
of the Act. It has three sections and several subsections. The chapter is a further
enactment or emphasis of the opening paragraph of the Act. In its chapter two
trafficking in person or human trafficking is enacted to be an offence and was thus
criminalised in South Africa. According to section 4 subsection 1:
1. Any person, who delivers, recruits, transports, transfers, harbours, sells
exchanges lease or receives another person within or across the borders of the
republic by means of:
(a) Threat of harm;
(b) The threat or use of force or other forms of coercion;
(c) The abuse of vulnerability;
(d) Fraud;
(e) Deception;
(f) Abduction;
(g) Kidnapping;
(h) The abuse of power;
(i) The direct or indirect giving or receiving of payments or benefits to
obtain the consent of a person having control or authority over another
person; or
(j) The direct or indirect giving or receiving of payments, compensation,
rewards, benefits or any other advantage, aimed at either the person or an
immediate family member of that person or any other person in close
relationship to that person, for the purpose of any form or manner of
exploitation, is guilty of the offence of trafficking inn persons.
2 Any person who---
(a) Adopts a child, facilitated or secured through legal or illegal means; or
(b) Concludes a forced marriage with another person, within or across the
borders of the Republic, for the purpose of the exploitation of that child
or another in any form or manner, is guilty of an offence.
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Section 5 of Act N0 7 of 2013 (supra) provides the “any person who intentionally
engages in conduct that causes another person to enter debt bondage is guilty of an offence.
Possession, destruction, confiscation, concealment of or tampering with documents, passport
or other travelling document of a victim of trafficking in facilitating or promoting tracking in
facilitating or promoting tracking in persons is guilty of an offence (section 6). The usage of
the services of victims of trafficking and conduct facilitating the trafficking in persons are
also criminalised (sections 7 and 8 of Act N0 7 of 2013). Sections 9 and 10 criminalised the
conveying or transporting within or across the borders of the Republic of South Africa
victims of human trafficking and the involvement in offences relating to human trafficking.
Penalties for human trafficking and factors to be considered for sentencing whoever
that is found guilty of offences relating to human trafficking is provided for in sections 13
and 14 of Act N0 7 of 2013.Section 13 subsections (a) to (e) provides thus:
A person convicted of an offence referred to in –
(a) Section 4 (1) is, subject to section 51 of the Criminal Law Amendment Act,
1997 (Act N0. 105 of 1997), liable to a fine not exceeding R100 million or
imprisonment, including imprisonment for life, or such imprisonment
without the option of fine or both;
(b) Section 4(2) is liable to a fine not exceeding R100 million or imprisonment,
including imprisonment for life, or such imprisonment without the option of
a fine or both;
(c) Section 5, 7 or 23 is liable to a fine or imprisonment for a period not
exceeding 15 years or both;
(d) Section 6 or 8(1) is liable to a fin or imprisonment for a period not
exceeding 10years or both; or
(e) Section 8(3), 9, 18(9) or 19(13) is liable to a fine or imprisonment for a
period not exceeding five years or both.
History of the investigation of human trafficking within the South African Police
Service prior to establishing the Directorate for Priority Crime Investigations
Research indicates that the specialised units were originally created in the detective service of
the SAPS in an ad hoc manner throughout the existence of the SAPS (Booysen, 2009; Frank,
Waterhouse, Griggs & Rontsch, 2008; Minnaar, 2001; Mistry & Redpath, 2001). Before the
restructuring of SAPS specialised units in 2000 (South African Narcotics Bureau (SANAB)
SANAB (anti-drug unit), Anti-Corruption Unit (ACU), Serious and Violent
Crimes Unit (SVC), Family Violence, Child Protection and Sexual Offences (FCS) units and
Crime Combating Unit (CCU) (public order policing) Unit), unauthorised specialised
detective units were created without appropriate control (Booysen, 2009; Minnaar, 2001).
More than 500 of these specialised units, including the Brixton Murder and Robbery unit in
Gauteng, the occult related units, Internal Tracing Units and a national Aliens Investigation
Units (AIU) as well as Stock Theft units were established without the proper authority. This
amounted to one (1) specialised unit for every two (2) Police Stations in South Africa. If a
specific type of crime became a problem in a province or area, a specialised unit was
established (Mistry & Redpath, 2001: 1).
The management of these specialised units was not professionally conducted. Serious
crime, which was to large extent, the responsibility of specialised units, had lower conviction
rates than less serious crimes. Previous initiatives at border control co-operation floundered
due to rivalries and an absence of role clarification and accountability. The AIU has been
closed down. At present the functions of these former Units are performed by general
detectives or Organised Crime Investigations. Minnaar (2001: 15) asserts that the then national
AIU (established on 13 December 1993 in response to the alarming increase in undocumented
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foreign nationals being smuggled into the country) mission was to expose the people aiding
aliens to enter the country illegally and to ensure that South African citizens are not deprived of
their rights concerning job opportunities, housing and medical privileges. The functions of the
AIU were twofold: firstly, dealing with South African citizenship affairs and secondly, with the
issuing of permits. In both these areas corruption played a major role.
The first function concerned the organised inclusion of aliens in the population register
by means of fraudulent late registration of births; the unlawful issuing of South African
passports to non-South African citizens; the unlawful granting of citizenship to aliens; the
forging and unlawful issuing of South African identity documents and South African passports;
the theft of South African passports during shipment to Department of Home Affairs offices and
South African embassies overseas; and the forging and issuing of marriage, birth and death
certificates to aliens. Concerning permits, the AIU deals with the unlawful acquisition of permits
by fraud, bribery and corruption in the granting of visas, work permits, temporary residence, the
settlement of squatters and permanent residence to aliens; the employment of aliens as cheap
labour; the housing of aliens; the bypassing of border procedures to gain entrance into South
Africa; and the unlawful issuing of forged permits, stamps and bank certificates to aliens
(Minnaar, 2001: 89-102).
Minnaar (2001: 89-102) further points out that the AIU concentrated more on the
organised inflow of illegal aliens – those involved with syndicates bringing in illegals with either
false documentation or documents fraudulently obtained, (official passports obtained through
bribery). These illegal aliens are more often the ones who can afford to buy South African ID
books or passports. The organised inflow of illegal aliens also relies on the bribery of
government officials to obtain official South African passports and other documents. However,
the supply and acquisition of work permits, temporary residence permits and permanent
residence permits are an even bigger trade in South Africa than passports, but are more easily
detected and withdrawn from circulation than cases involving naturalisation or late registration
of births.
As early as 1994, the SAPS noticed, and this has been revealed in a number of raids on
such establishments, an increase in the trafficking in foreign women for the purposes of
prostitution. Foreign women from as far afield as the Far East, Russia, Bulgaria, Brazil and other
African countries are brought in (often lured by false promises of work as exotic dancers in
nightclubs) on an organised basis using tourist visas. Brothel owners/pimps set them up in
accommodation but confiscate their passports and the women have to work under threat of
exposure as illegal immigrants, i.e. tourists who have overstayed their visa period (Minnaar,
2001: 89-102).
The establishment and mandate of the Hawks relating to the investigation of human
trafficking
The Directorate for Priority Crime Investigations (DPCI), known as the Hawks, investigates
cases relating to organised crime, serious and violent crime, commercial crime and corruption
(South Africa Yearbook 2012/13: 470). In 2008 a process was embarked upon to establish the
DPCI to enhance the capacity of the SAPS to prevent, combat and investigate national
priority offences. It also allowed for transfer of the powers, investigations and resources from
the Directorate of Special Operations (DSO) to the SAPS. On the 20th of February 2009 the
President signed the coming into operations of the South African Police Service Amendment
Act, 2008 (Act No. 57 of 2008) as well as section 13 of the National Prosecuting Authority
Amendment Act, 2008 (Act No. 56 of 2008). In response to the SAPS Amendment Act, the
DPCI was established (National Prosecuting Authority, 2014: 4).
The mandate of the prosecuting authority is firstly set out in Section 179 of the Constitution.
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Any offence that requires specialised skills in the prevention or investigation thereof, as
referred to in section 16(1) of the SAPS Act, fall under the mandate of the Hawks, namely:
- Protection of Constitutional Democracy against Terrorist and Related Activities Act,
2004 (Act No. 33 of 2004);
- Implementation of the Rome Statute of the International Criminal Court Act, 2002
(Act No. 27 of 2002);
- Chapters 2, 3 and 4 of the Prevention of Organised Crime Act, 1998 (Act No. 121 of
1998);
- Section 13(l) of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992);
- Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No.87 of 1993);
- Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities
- Act, 2004 (Act No. 12 of 2004);
- Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), or the
Prohibition of Mercenary Activities and the Regulation of Certain Activities in
Country of Armed Conflict Act, 2006 (Act No. 27 of 2006);
- National Conventional Arms Control Act, 2002 (Act No. 41 of 2002);
- High treason; and
- Sedition (National Prosecuting Authority, 2014: 4).
Section 179(1) provides that there is a single national prosecuting authority in the
Republic, structured in terms of an Act of Parliament, and consisting of a National Director
of Public Prosecutions (who is the head of the prosecuting authority and appointed by the
President), Directors of Public Prosecutions and prosecutors. This prosecuting authority has
the power to institute criminal proceedings on behalf of the state and to carry out any
functions incidental to the institution of such proceedings (section 179(2)). Section 179(3)
requires national legislation to ensure that the Directors of Public Prosecutions are
appropriately qualified and responsible for prosecutions in specific jurisdictions. In terms of
Section 179(4), national legislation should also ensure that the prosecuting authority exercises
its functions without fear, favour or prejudice. The legislation introduced in compliance with
these provisions is the National Prosecuting Authority Act 32 of 1998 (National Prosecuting
Authority, 2010: 52).
The National Director of Public Prosecutions must determine prosecution policy,
which must be observed in the prosecution process; she or he must also issue policy
directives, which must be observed in the prosecution process, and may intervene in this
process when policy directives are not complied with (section 179(5)(a)-
(c)). The National Director may review a decision to prosecute or not to prosecute, after
consulting the relevant Director of Public Prosecutions and after taking representations within
a specific period from the accused, the complainant or any other person or party considered to
be relevant by the National Director (National Prosecuting Authority, 2010: 52).
Specialised units
A number of specialised units or components have been developed in the National
Prosecuting Authority. Since these specialised units may investigate different aspects of
crimes, and are classified as follows based on their mandate: Sexual Offences and
Community Affairs (SOCA) Unit; Asset Forfeiture Unit; Office for Witness Protection and;
Organised Crime Section.
The Organised Crime Section, which focuses on combating serious organised crime
(National Prosecuting Authority 2009: 17), is located in the DPP’s offices in the nine
provinces. This specialised component handles prosecutions in terms of the Prevention of
Organised Crime Act, the legislation that sets out offences relating to racketeering activities
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(sections 2 to 3) as well as offences relating to proceeds of unlawful activities, including the

offence of money laundering (sections 4 to 6). The Organised Crime Investigation units
within the DPCI are responsible for the prevention of a cross-sector of organised crime
related activities including illegal drugs, plundering precious metals and diamonds,
smuggling firearms and weapons, human trafficking, money laundering, specific violent
crime, smuggling or stealing non-ferrous metals, vehicle-related crime, endangered species
and crimes against the State (South Africa Yearbook 2012/13: 470-471).
RESEACH METHODS
A qualitative research approach was taken to establish an in-depth understanding of experts’
knowledge and experiences regarding the CJS responses. Semi-structured interviews were
used to gain participants’ experiences, views and opinions in their own words, without
predetermining the exact content. This approach to interviewing enabled participants to
define and discuss their experiences and, at the same time, keep the information relevant to
the research questions (Chatzifotiou, 2000). Such research methods have been acknowledged
as being particularly suitable to explorative research, where a sound understanding of
participants’ experiences is sought (Denzin & Lincoln, 2000; Kitzinger & Wilkinson, 1997;
Olesen, 2005). This method (when conducted with care and sensitivity) is also considered
particularly appropriate for researching human trafficking from an ethical perspective,
because it promotes participant control over the content, create an environment where
participants can develop meaning for their unique experience, and demonstrate a commitment
to “give voice” to the knowledge and expertise of research participants (Olesen, 2005;
Reinharz, 1992; Renzetti, 1997). This article focuses on the criminal justice responses
towards human trafficking.
Sampling method
For the purpose of this study a purposive non-probability sampling technique was applied. In
order to understand the challenges of detecting and prosecuting human trafficking in South
Africa several focus group interviews were conducted with participants from the National
Prosecution Agency (NPA), the SAPS Organised Crime Units (Human Trafficking Unit), and
the Directorate for Priority Crime Investigation (DPCI) also known as the Hawks. Apart from
interviewing participants from the Hawks, the researchers saw it fit to broaden the search and
invited key informants from various organisations such as the SAPS Crime Intelligence
Units, Immigration Officers from the Department of Home Officers as depicted in Table 1
below. Analysis of qualitative data from interviews resulted with 52 law enforcement
officers, prosecutors, victim services representatives, and other criminal justice system
stakeholders.
Expert interviews as depicted in Table 1 below were used to help understand the
challenges and barriers that the South African CJS faces in identifying, investigating, and
prosecuting cases of human trafficking. Participants who had experience (in investigating
with human trafficking cases as well as those who attended training on the issue) were sought
and requested to participate in the focus study interviews. This “purposive sampling method”
allowed for selecting information-rich cases rather than selecting a sample for the purpose of
empirical generalisability (Babbie, 2010; Babbie & Mouton, 2010).
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Table 1: Description of participants
FOCUS GROUP NUMBER PROVINCE AVE. EXPERIENCE

Control Senior Prosecutors & 14 Gauteng, KwaZulu- 13-23 years
Senior Public Prosecutors Natal & Western Cape
Officers attached to 18 Gauteng, KwaZulu- 10-25 years
Organised Crime Unit Natal & Western Cape
Officers attached to the 12 Gauteng, KwaZulu- 13-22 years
Crime Intelligence Unit Natal & Western Cape
Immigration Officers, Home 7 Gauteng & KwaZulu- 11-18 years
Affairs Natal
Victim Assistant Officers, 1 KwaZulu-Natal 6 years
Thuthuka Care Centre (NGO)
LANGUAGE OF English Official African Afrikaans
PROFECIENCY languages
21 20 11
GENDER OF PARTICIPANTS
Male 8 Gauteng
11 KwaZulu-Natal
9 Western Cape
Female 7 Gauteng
9 KwaZulu-Natal
8 Western Cape
RACE OF PARTICIPANTS
African 23
White 12
Asian 11
Coloured 6
TOTAL NUMBER OF PARTICIPANTS 52
Data Collection: Focus Group Interviews
A focus group is a technique involving the use of in-depth group interviews in which
participants are selected because they are a purposive, although not necessarily
representative, sample of a specific population, this group being focused on a given topic
(Barbour, 2007; Hennink, 2007; Krueger & Casey, 2009; Stewart, Shamdasani & Rook,
2007). Participants in this type of research are, therefore, selected on the criteria that they
would have something to say on the topic, are within the age-range, have similar socio-
characteristics and would be comfortable talking to the interviewer and each other (Rabiee,
2004; Skop, 2006). This approach to selection relates to the concept of ‘applicability’, in
which subjects are selected because of their knowledge of the study area (Burrows &
Kendall, 1997). One of the distinct features of focus-group interviews is its group dynamics;
hence the type and range of data generated through the social interaction of the group are
often deeper, richer and less threatening than those obtained from one-to-one interviews
(Barbour, 2007; Wilkinson, 2004).
For the purpose of complementing the data gathering method, in addition to the
literature study, three focus group discussions were conducted with the following
participants: (1) SAPS personnel attached to Organised Crime Units, (2) NPA prosecutors;
(3) Key informants from the Crime Intelligence unit, Immigration officials from the DHA,
from the three provinces including one Victim Assistance Officer from the Thuthuka Care
Centre, KwaZulu-Natal. The SAPS Organised Crime and Crime Intelligence Units’ (Focus
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groups 1 & 3, 38 participants) interview schedules that were used in the study addressed
participants’ perceptions of the challenges facing investigators in responding to reported
human trafficking incidents, amongst others such as crime analysis and criminal intelligence,
mechanisms to ensure safety and protection of witnesses testifying in court, as well as
effectiveness of collaboration between key role-players/stakeholders with regard to trust and
information sharing issues.
Additional questions addressed with Focus group 2 (14 participants) were to
determine cases brought before the courts. Data was analysed according to the descriptive
approach of Tesch (1992:92). This technique helped the researchers to reduce data into
themes, sub-themes and categories. During the focus group interviews, the researchers
assisted by B-Tech undergraduate policing students, made use of audio recordings of the data
by means of a tape recorder. The recorded data were transcribed verbatim, which facilitated
the process of data reduction (that is, production into themes and sub-themes).
FINDINGS AND DISCUSSION
Despite the delay by President Jacob Zuma and his cabinet to sign the Bill into law, the
researchers examined the challenges of identifying, investigating, and prosecuting human
trafficking cases prior to the promulgation of the Prevention and Combating of Trafficking in
Persons Act (hereafter referred as Act No7 of 2013). It is worth mentioning that an attempt
was made to report accurately what has been provided by the participants on their
experiences and views regarding the patterns, challenges and barriers of investigating and
prosecuting ‘known or recorded’ human trafficking cases. It should also be pointed out that
these patterns or emerging themes described below should not be generalised beyond the
areas/ provinces studied.
Key emerging themes
A total of 52 participants as depicted in Table 1 above availed themselves for the focus group
interviews. Participants were having an average of 10 to 25 years of experience in their
current positions. Participant representation was greatest from the KwaZulu-Natal Province,
followed by the Western Cape Province and lastly, the Gauteng Province. The majority of
participants (21) reported having only English language capabilities, with 31 participants
reporting English as a second language. Most participants (28) reported having worked on an
average of 1 to 5 human trafficking cases.
Knowledge of human trafficking
The majority of participants learned about human trafficking through regular law
enforcement activities, including being involved in Anti-trafficking task teams and on the job
experience, whilst the rest learned about human trafficking through various training events
and conferences sponsored by the state governments amongst others; such as (Department of
Justice and Constitution Development, Department of Social Development, Department of
Home Affairs, Department of Correctional Services, Department of Labour, Department of
International and Co-operation Relations, Department of Defence, Specialised institutions) as
well as the non-governmental organisations (NGOs) such as (Molo Songololo and Centre for
the Study of Violence and Reconciliation).
Only a small fraction of the participants consider themselves to be knowledgeable to
very knowledgeable about the issue of human trafficking. When asked about their familiarity
with the Prevention and Combating of Trafficking in Persons Act (hereafter referred as Act
No7 of 2013), only 11 participants indicated they were familiar to very familiar. Organised
Crime and Senior Public Prosecutors were evenly distributed with their familiarity of the Act
No7 of 2013. The majority of the participants indicated that they were aware of Act No7 of
2013 and were not familiar or reporting minimal familiarity.
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When asked to define human trafficking, the majority of participants most commonly
defined it as modern day slavery. Only half of the participants (27) were able to differentiate
the difference between the act of smuggling and trafficking. Majority of participants
interviewed for this article as highlighted earlier, had participated in some kind of human
trafficking training. These trainings were often in awareness-raising and were frequently
sponsored by the overseas donors. Some of the participants felt the current training would
have been more helpful if they had included strategies for identifying, interviewing
techniques as well as prosecuting cases under South African human trafficking statutes. The
above findings are in consistent with the study conducted by the National Prosecuting
Authority (2010). Some of the key findings regarding knowledge of human trafficking reveal
the following:
According to the interviews revealed that there was considerable ignorance
about human trafficking, in both lay and professional quarters. No clear
definition of trafficking is recognised across sectors, including among
prosecutors, immigration officials and service providers. The notion of
trafficking is often confused with smuggling, and is generally conflated with
prostitution, sexual abuse or labour abuse (National Prosecuting Authority,
2010: 133).
Capacity and identification of human trafficking cases
It emerged that the identification of human trafficking suspects and victims was one of the
most significant challenges facing the sample of the South African CJS. By identification,
researchers are referring to the way human trafficking cases come to the attention of the CJS
and are classified as crimes of human trafficking, rather than as other crimes with similar
elements, such as smuggling. Interviewees commonly asserted that a major challenge
inherent in human trafficking cases is that human trafficking involves hiding and moving
victims. Some of the comments from the participants highlighting the challenge were as
follows:
…Despite the perceived growing [and]attention to the crime of human
trafficking in South Africa and the efforts instituted by the key stakeholders
directed at its eradication, knowledge about the phenomenon is still very
limited…
Credible qualitative and quantitative data are in short supply…Due to the
clandestine nature of offence, information on the characteristics of victims and
their experiences, as well as the characteristics of organised crime syndicates, is
mostly circumstantial and often hard to investigate as well as generalise the
extent of the challenge…
The above findings regarding the lack of capacity is consistent with the findings of the
study conducted by the National Prosecuting Authority (2010). The findings by the National
Prosecuting authority reveal that the Port of entry officials indicated that they have a capacity
problem since they deal with thousands of people entering and leaving the country.
They are hardly in a position to scrutinise documents in detail. The implication
is that possible human trafficking cases can slip through at the ports of entry.
Since there were only a few cases of human trafficking in the past, the
department has not up introduced standard operating procedures for officials to
deal with human trafficking cases. According to an interviewee such procedures
may be helpful in assisting officers with identifying and dealing with human
trafficking victims (National Prosecuting Authority, 2010: 133).
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When asked to quantify the scourge brought by the challenges of human trafficking
and if there is adequate capacity to deal with this challenge, the interviewees indicated that no
official statistics existed and were also unable to quantify the problem, however, the majority
concurred there is concern from the public about perceived increasing trends in human
trafficking cases, which are yet to be processed through a formal CJS process. Relating to the
capacity, it emerged that there are currently measures in place to capacitate the Committee
which was formed to engage the Department of Justice and Constitutional Development
(DOJ&CD), the Department of Social Development (DSD), and the SAPS on their roles and
responsibilities in implementing Act No. 7 of 2013.
…capacity building to mitigate the challenge brought by the networks of traffickers
is still in its infancy stage…without oversimplifying the urgency of the matter, the
concept of capacity is yet to be embraced by all stakeholders within the CJS…
Capacity building should be seen as a key ingredient of prevention by all relevant
stakeholders to mitigate the challenges confronting the country…
…despite being rhetoric about the need for comprehensive approaches to
prevention, collaboration between the DHA, DOJ & CD, the SAPS, DSD, the
Hawks and community mobilisation amongst others, could be by far the most
common and effective instrument of prevention in South Africa…
…capacity building takes time, resources and patience. It is important to fully plan
how much time and what type of resources will be required to achieve measurable
results towards effective intelligence gathering, investigation and prosecution of
networks of traffickers…Time-limited project funding by the overseas donors to
build capacity within the CJS may play a pivotal role in getting certain things
done, but broader investments in community infrastructure and partnerships are
usually required to sustain strategies directed at human trafficking over the long
term.
…over time, community mobilisation efforts initiated amongst others; by the DSD
and the SAPS, despite critics of the ineffectiveness of the consultative forums
between the organs of state and the communities to address the social ills within
the communities, can become more strategic in nature, concentrating on mobilising
communities to forge partnerships in combating suspected incidents of human
trafficking, especially in identified ‘hot spots’.
From the above findings, it seems the issue of capacity building is still a challenge
amongst the key stakeholders to combat the ills of the society, with no exception to the crime
of human trafficking. Due to the competing priories by the organs of the state, especially the
SAPS as well as the DSD to reduce the level of crime and address societal problems,
knowledgebase towards effective mobilisation of communities, requires constant attention
and investment towards adequate capacity building. Research indicates that community
initiatives movement, have begun to tease out principles to guide effective mobilisation and
community-building work. Since these approaches are horizontally and vertically complex,
involve a multiplicity of factors, and encompass diverse and dynamic interventions, it should
be of no surprise that the knowledge base is taking time to develop (Comack & Silver, 2006;
Crawford, 2006; Diamond, 2004).
It also emerged from the interviews that the DSD made initiatives to develop draft
regulations to regulate services to victims of human trafficking. Currently a national
framework for accreditation of services provided by NGOs was being developed. The DSD
now had a total of 28 pre-assessed shelters run by NGOs. Possible accreditation of the NGOs
was delayed by the promulgation of the Bill which was eventually signed into an Act on 30
July 2013. What is encouraging was the fact that it was noted that the DSD had also trained
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the social workers in the provinces to identify and assess victims of human trafficking though
more of social workers need to be recruited to meet the demands.
The SAPS focus group regarded the Act No7 of 2013 as extremely important and had
had extensive consultations with other departments on what to do with human trafficking
victims once identified as such. It emerged that the SAPS was also in the final stage of
developing a National Instruction in terms of the South African Police Service Act, but could
not finalise it until the Bill was passed. SAPS had also consulted with the DSD on the
establishment of centres where those victims could be kept and had arrangements to place
victims in a witness protection programme, as the perpetrators were unscrupulous and would
stop at nothing either to reclaim their victims or harm them so that they could not testify
against the perpetrators. SAPS and the Hawks had developed in-service training programmes.
Heightened awareness of human trafficking and the growth of task teams were
considered by all focus groups as inadequate. The majority of participants were of the view
that currently the awareness campaign was done through the printed media while adequate
training of the SAPS and the NPA on identifying, interviewing victims and conducting raids
smartly resulting in positive convictions were regarded as best practices that is yet to be
realised. Additionally, it emerged that the SAPS lack resources to devote to training, staffing,
and investigating human trafficking cases that can be resource-intensive. Training of crime
prevention and crime intelligence officers and other first responders most likely to encounter
situations of human trafficking is especially needed. It was a beyond the scope of this article
to identify how the CJS gather intelligence on counter-act the challenges brought by human
trafficking cases. However, it is a given fact that most law enforcement agencies locally and
elsewhere rely on the traditional reactive strategies to identify cases of organised crime;
hence the human trafficking is not the exception.
There is need for co-operation amongst stakeholders to address this challenge
brought by human trafficking…This fight should be a shared responsibility. It
requires inter-departmental co-operation among law enforcement agencies, namely
the SAPS, the Hawks, the Interpol as well as trans-national co-operation. It also
depends on effective joint work among a wide range of stakeholders, including
criminal justice experts, civil society, and communities…Disjointed efforts,
however well-meaning, will have little impact on sophisticated criminal networks.
The above comments indicate that well-co-ordinated strategies against human
trafficking requires good co-operation between CJS and wider stakeholders such as the
community, private sector and the civil society, to contribute to a more strategic fight against
a crime that dehumanise humankind. The study conducted by the National Prosecuting
authority also reveals that co-operation between key stakeholders is a challenge.
According to some of the Home Affairs officials that we interviewed there are
lapses in co-operation between Home Affairs and SAPS with regard to human
trafficking which need to be remedied…Conflicting interests between Home
Affairs and the SAPS have also been highlighted as a potential challenge with
regard to the prosecution of human traffickers (National Prosecuting Authority,
2010: 133).
In South Africa, probably elsewhere, the law enforcement agencies often continued to
rely on traditional sting operation models of covert operations and investigations to generate
cases of organised crime, such as visiting brothels. It is the view of the researchers that lack
of trauma-informed interviewing techniques and foreign language capacity is yet to be
realised due to limited training and capacity, thus additional barriers impeding the
identification of these cases. Of those few cases brought to the attention of the CJS,
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participants noted that, in working with victims of trafficking, there are several initiatives
undertaken to address the gap such as those highlighted above. Overcoming challenges that
may prevent the early identification of human trafficking cases is just the first step in the
process of moving human trafficking cases forward to prosecution. There are also a number
of challenges, unique to the crime of human trafficking, that can impede efforts to prosecute
human trafficking cases.
Characteristics of cases reviewed
The overwhelming majority of cases identified by both the SAPS and the courts were sex
trafficking cases and nearly all identified sex trafficking victims were female. The
interpretation by the researchers is that sex trafficking cases were much easier to identify and
prosecute compared with human trafficking cases. It emerged from the findings that human
trafficking cases pose substantial and unique challenges for both the SAPS officials as well as
public prosecutors, including the need for different evidence than might be necessary for a
state prosecution. The need for additional evidence of trafficking (most often multiple victims
and/or offenders), even if there was one victim/witness willing to co-operate and testify in
court, was a recurring theme in many of the interviews. There was a concern from the
majority of participants that prosecution often reject cases if they believe that errors occurred
during the earlier stages of the investigation. It seems as if the there was a serious lack of
understanding of the crime of human trafficking among police, prosecutors and other key
stakeholders interviewed. It is therefore possible that due to this lack of understanding, the
low reporting and conviction of cases that involve ‘elements’ of human trafficking
victimisation who come to the attention of actors in the CJS, would often go unrecognised, or
possibly, be reduced to mere lesser crimes.
Identifying barriers and prevention strategies
When asked what it will it take to eliminate the challenges brought by the human trafficking
incidents in South Africa, the majority of participants concurred that eradicating human
trafficking incidents will require numerous prevention strategies so that Organised Crime
investigators, prosecutors, and service providers can combat this crime from all angles. Given
the current capacity in terms of knowledge of the legislation and collaboration between key
stakeholders, resources are limited. The views from the participants were that additional
prevention efforts are still needed to harness existing resources and infrastructure. It emerged
that the collaboration between the SAPS and victim service providers is yet to be assessed
and agreements in the form of Memorandum of Understanding are also yet to be entered into
to improve their ability to identify victims, there is still more to learn about the dark world of
human trafficking.
In addition to these institutional level challenges, albeit the few cases handled by the
CJS, it emerged that cases made it up to the prosecution stage were inhibited from going
forward. The reason might be that the courts may still lack an institutional infrastructure, such
as dedicated resources to handle human trafficking cases. This view was also highlighted by
participants who were deployed within the task teams and non-task teams and for both labour
and sex trafficking. While some of the participants may have adequate training in sexual
crimes cases than in handling human trafficking cases, they also described problems with the
level of confidence in identifying, investigating and thus prosecuting human trafficking cases
compared with sex trafficking cases. It was for this reason that the Sexual Offences and
Community Affairs (SOCA) Unit within the NPA mandated to deal with the prevention and
reduction of sexual offences through effective prosecutions formed the basis of the
Trafficking in Persons, in an effort to make the process as inclusive as possible, a very broad
approach was adopted to distil the critical role-players in human trafficking cases as
highlighted above.
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Given the cross-jurisdictional nature of many human trafficking cases (particularly

abduction and sex trafficking cases); the need to travel to other jurisdictions was cited as an
additional challenge for some of the participants. Some other participants outside the task
teams, particularly in non-task teams jurisdictions, reported that some of the known or
reported cases of sex trafficking fell apart when, due to a lack of resources, they were not
necessarily treated as a priority, especially cases that involve a low number of victims or
suspects thus unable to travel to other provinces or even beyond the borders of South Africa
to collect evidence or interview witnesses. It is the view of the researchers that gaining the
co-operation amongst all key stakeholders will go a long way to support case investigation
and prosecution between SAPS officials; public prosecutors, or victim service providers both
locally and other jurisdictions.
There is still a lack of political will, operational capacity, and knowledge on
human trafficking and on what counter-strategies work best. As a consequence,
human trafficking will continue to thrive… The process to effect or implement
the Prevention and Combating of Trafficking in Persons Act N0 7 of 2013 by
President Jacob Zuma to be operational after being signed into law, is a
classical case study of skewed priorities by the state…When many programmes
were initiated, such as changing and re-naming of streets and building across
the country, were given priorities when efforts against human trafficking have
often been inappropriate. The inadequate strategies by the CJS to respond to the
challenges brought by human trafficking undermined the human rights of victims
and could be interpreted by the public as the inability of the state to prosecute
traffickers…
…It is given based on the performance of the CJS to bring perpetrators to book.
Human trafficking is too complex to lend itself to simplified arguments about its
prevalence, so far, these arguments were rather harmful to early capacity
building efforts and, by extension, to bring transparency into the true extent of
the problem and strategies designed to inform the response by the CJS.
The economic, social and gender inequalities that lie at the heart of human trafficking
mean that policies should be much more ‘victim’ centred and should take a human rights
focus, with the needs specifically of individual children and women as a priority. Goodey as
cited in Muncie, Talbot and Walters (2010: 132) argues that there is some evidence of a move
towards this sort of approach, but that the real test of how far initiatives are ‘for’ victims is
whether they exist separate to conditions that stipulate that the victim should co-operate with
the authorities in order to receive certain services. To this end the continued absence of open
residence permits for trafficked victims, regardless of whether they co-operate with the
authorities, is still some way off in practice (Muncie et al, 2010: 132).
RECOMMENDATIONS AND CONCLUSION

The findings of this article indicated that despite gradual increases in the attention to and
prevalence of prevention activities in human trafficking campaigns by the CJS, collaboration,
capacity building and other strategic efforts remain the least utilised of the anti-trafficking
techniques, in large part because credible means of measuring the prevalence and CJS
response are still underdeveloped. The authors argue that until the links are better proven
between mobilisations of key stakeholders, capacity building in the form of training, the
extent of the problem and the success of the intervention strategies in form of prevention and
successful convictions statistics, prevention will be poorly explored. Nevertheless, given the
difficulty in identifying and extracting cases of human trafficking once they are immersed in
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this clandestine practice, effective prevention could be the most effective way to protect
vulnerable populations.
Notwithstanding the enactment and the signing into law the Prevention and
Combating of Trafficking in Persons Act N0 7 of 2013 by President Jacob Zuma, the fact
remains that crime is a multi-faceted phenomenon and successful deterrence of serious crime
as human trafficking involves the need for substantial redress in the socio-economic
conditions of those ravaged by poverty, debilitated by disease and malnutrition and
disempowered by illiteracy. However, without effective policing and prosecution, human
trafficking as a crime is bound to flourish. Very low conviction rates are an incentive to
criminals. South African communities cannot expect to see a significantly lower incidence of
human trafficking crime in South Africa until investigation and prosecution improves
dramatically. To adequately respond to prevent trafficking, authorities must thoroughly
examine the vulnerabilities of human trafficking victims and the factors that put them at
greater risk. Any policy designed to reduce human trafficking must also consider strategies
aimed at reducing the demand side of human trafficking. Finally, stakeholders must
understand the complexities and intricacies of the overall human trafficking enterprise – and
its unique manifestations in South Africa, in order to help ensure that prevention measures
are successful.
As a result of the evasiveness and or the insurmountable nature of curbing the scourge
of human trafficking in South Africa it is important to borrow a leave from endeavours of
other nations around the world on how they have also tried in minimising this modern day
slavery otherwise known as human trafficking. In the year 2013, the Obama administration
set up a presidential advisory council on how partnerships could be built to eradicate this
modern day slavery of human trafficking. The advisory council among others recommended
ten points that the USA government must strictly followed in minimising or reducing the
menace of human trafficking. Firstly, the President Obama Administration must lead the
effort to elevate and bring to scale the fight against modern-day slavery at home and abroad.
Secondly, the President Obama administration leads the effort to eliminate slave labour in the
purchase and consumption of goods and services. Thirdly, the federal government elevate
anti-trafficking work at the agency level; Fourthly, the White House convene a National
Summit to raise awareness and inspire action to combat modern-day slavery; fifthly, the
President Obama Administration develop and announce a National Call to Action for civil
society to increase and align efforts to eradicate modern-day slavery (USA, 2013).
Furthermore, the President Obama administration produce a toolkit on how religious
and community-based organisations can learn more about and take steps to join the fight
against trafficking. Again, the Obama Administration works with the Ad Council to create a
public awareness campaign on how to spot and report signs of trafficking. The Obama
Administration designate the National Human Trafficking Resource Center (NHTRC)
Hotline as the primary national human trafficking hotline promoted to the public. Also, U.S.
Embassies and the United States Agency for International Development (USAID) Missions
work with civil society leaders to develop comprehensive strategies to combat human
trafficking; and finally, the Corporation for National and Community Service create a pilot
partnership to place national service members in Mayors’ and Governors’ offices to help map
and co-ordinate local responses to human trafficking (USA, 2013).
It is thus, further recommended that the above recommendation points must be
adhered to by the President Zuma administration in order to have a positive impact on human
trafficking in the Republic of South Africa. There is an urgent need for specialised training
that would target the criminal justice practitioners, including all SAPS members, public
prosecutors and judges and, in particular, front line crime prevention and crime intelligence
officers, customs officials to develop a comprehensive knowledge base on specific trafficking
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issues to ensure an effective response to human trafficking incidents. This study proposes a
training initiative aimed at strengthening the capacity of the SAPS officials and the judiciary
to identify and protect victims of trafficking, promote a victim-centred and human rights
approach to human trafficking and investigate and prosecute cases of trafficking
appropriately and effectively. Even though it is still early to determine the adequacy of
training, however, it is essential that tailor made training should be developed.
The fight against organised crime involved in human trafficking calls for broad,
multi-agency, flexible and co-operative approaches both nationally and internationally. The
perceived shortcomings and lack of capacity of the CJS working alone and of weak co-
operation patterns are well known. It is a fact that some of the best results in the prosecution
of trafficking in persons have been obtained when the SAPS and the Department of Justice
and Constitution Development should be capacitated to be able to effectively work together
both locally and across borders with other law enforcement agencies. Traffickers regularly
vary their methods of recruitment in response to changing circumstances, such as changes in
client demand or in response to changes in law enforcement tactics.
Geldenhys (2013: 25) asserts that it is important that national and international
strategies to stop human trafficking should reflect this complexity to ensure assistance from
agencies with expertise in these matters. Only then will there be a possibility of helping those
victims who are trapped in levels of misery and to stop the illegal movement of immigrants
across borders, which provides a ready source of income for organised crime groups. While
this study was conducted on difficult terrains and used painstaking approaches, the samples
were small; hence, the results cannot be generalised in view of the extent of the response of
the CJS to tackle the problem. Future research on the response by the CJS trafficking could
also explore the use of quantitative and qualitative assessment data gathering techniques to
target bigger target population where possible, the victims’ risk, those trafficked within the
country, and others who returned.
From the research findings, the study highlighted that knowledge relating to human
trafficking in South Africa still suffers from a serious lack of hard data, hence no official
statistics is in place. Based on the lack of basic national-level data, that could have facilitated
insight into the adequacy of the CJS to respond to challenges of human trafficking. The delay
in implementation of the Prevention and Combating of Trafficking in Persons Act N0 7 of
2013, still systematically curtailed efforts to provide empirical evidence relating to the
response by the CJS towards aspect of human trafficking. It is envisaged that the research
findings emanated from this study, will assist in fast tracking collaboration across key holders
in responding to human trafficking. However, this study has succeeded to provide a more
comprehensive understanding of the response of the CJS to curb incidents of human
trafficking in South Africa. This will provide a baseline for future research initiatives.
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EXPERT REFLECTIONS ON CHALLENGES EXPERIENCED TO

How is human trafficking different to human smuggling?

HISTORIC OVERVIEW OF LEGISLATION GOVERNING HUMAN

(sections 2 to 3) as well as offences relating to proceeds of unlawful activities, including the

Table 1: Description of participants

FOCUS GROUP NUMBER PROVINCE AVE. EXPERIENCE

Given the cross-jurisdictional nature of many human trafficking cases (particularly

RECOMMENDATIONS AND CONCLUSION

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