The Prevention and Combating of Trafficking in Persons Act 7 of

in July 2013 (Kreston, 2014: 24), with the law eventually coming into effect on 9 August 2015 (Kruger, 2016: 55; President Zuma signs new Trafficking Act into law, 2015). The trafficking legislation now gives domestic legal effect to South Africa’s international obligations under the Palermo Protocol (Mollema, 2014: 247). Furthermore, it operationalises a “single codified piece of legislation” to refer to when dealing with the issue of human trafficking and should be of particular value to under-trained prosecutors (Legget, 2004: 4). As a means to address the problem of human trafficking comprehensively, it is emphasised by Aransiola and Zarowsky (2014: 513) that the human trafficking legislation may not eradicate human rights’ abuses associated with trafficking, but has the potential to improve the rights afforded to victims that are rescued. The Act now enables the prosecution and appropriate punishment of perpetrators, the protection of and provision of assistance to victims of human trafficking, and the prevention of human trafficking (Kruger, 2016: 65).

The Prevention and Combating of Trafficking in Persons (PACOTIP) Act 7 of 2013 comprises ten chapters and includes a schedule on repealed and amended laws. Chapter 1 deals with definitions, interpretations and objects of the Act, whilst Chapter 2 addresses all issues related to prosecutions and includes offences, penalties and matters related to extra-territorial jurisdiction. Matters related to victims of human trafficking, which include identification and protection of victims, accreditation of service providers and repatriation, are dealt with extensively from Chapters 3 to 7.

Chapters 8, 9 and 10 address general provisions, administration and implementation of the Act, as well as miscellaneous matters.

The offence of ‘Trafficking in Persons’ is defined by section 4(1) in Chapter 2 of the PACOTIP Act as follows:

“Any person who delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person within or across the borders of the Republic, by means of–

(a) 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 in persons;

4 (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 other person in any form or manner, is guilty of an offence.”

Also important here is the definition of ‘abuse of vulnerability’ as deconstructed in section 1 of the Act as a means through which a person can be mobilised for subsequent exploitation. According to this definition, ‘abuse of vulnerability’ for purposes of section 4(1) means

“any abuse that leads a person to believe that he or she has no reasonable alternative but to submit to exploitation, and includes but is not limited to, taking advantage of the vulnerabilities of that person resulting from–

a) the person having entered or remained in the Republic illegally or without proper documentation;

b) pregnancy;

c) any disability of the person;

d) addiction to the use of any dependence-producing substance; e) being a child;

f) social circumstances; or g) economic circumstances.”

The aforementioned vulnerability considerations reflect the South African social context and feature prominently in numerous past and ongoing reports, investigations and prosecutions of human trafficking in the country. Interestingly, though, despite the prominence of this loaded definition in both the Palermo Protocol and South Africa’s PACOTIP Act, it is not deconstructed or aired in preservationist-slanted research on the issue of prostitution and human trafficking for sexual exploitation in South Africa. This calls into question the essence of arguments that attempt to diminish the scope, nature and extent of human trafficking for sexual exploitation in South Africa (see: Palmary, 2016; Gould, 2014; Gould, 2011; Gould & Fick, 2008) and that dismiss the multilayered and subversive complexities that fundamentally impact on the contested debate around ‘agency’ and ‘voluntary’ and ‘involuntary’ participation in the sex trade. These perspectives will be reflected on in Section 2.6.3 below.

In her comparison of the PACOTIP Act with international prosecution standards, Kruger (2016: 84) describes the legislation as an “innovative and invaluable tool” and a “sharp prosecution sword” equipped to terminate impunity for multiple trafficking agents who benefit from the lucrative exploitation of human beings. The legislation gave effect to an increase in the number of cases entering the criminal justice system and the time has now come to use the legislation optimally and establish good case law (Whittles, 2017: 13).

This section provided a contextual overview of the Palermo Protocol and how South Africa responded to its obligations after ratifying the Protocol on 20 February 2004. The use of common law and statutory legislation in an attempt to address human trafficking, and the subsequent and interim legislative provisions were then discussed. The PACOTIP Act was introduced and reflected upon as an effective prosecution tool for comprehensively addressing human trafficking in South Africa. In the next section, South Africa’s post-Palermo narrative will be explored.