Browsing by Author "Pretorius, Nandi"

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    A critical evaluation of South Africa's enactment of new anti-trafficking legislation in fulfilment of its international obligations to prevent, suppress and combat the trafficking of persons under the Palermo Convention
    (Stellenbosch : Stellenbosch University, 2020-04) Pretorius, Nandi; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The United Nations Convention against Transnational Organised Crime (“Palermo Convention”) and the Protocols thereto aim to prevent and combat the international phenomena collectively known as organised crime. Specifically, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children obliges South Africa, as United Nations (“UN”) member that has ratified the Palermo Convention and a number of other international treaties, to promulgate legislation explicitly dealing with the prevention and combating of trafficking in persons. Consequently, the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (“the Trafficking Act”) was promulgated by the national legislature on 29 July 2013 and has come into operation on 9 August 2015. The Trafficking Act creates the statutory crime of trafficking in persons along with different other punishable acts in order to combat trafficking in persons. This definition is compared to that the prescribed conduct which South Africa is internationally obliged to criminalise. Prior to the enactment of the Trafficking Act, South Africa lacked specific legislation criminalising crimes of trafficking in persons. However, South Africa utilised the existing common and statutory law offences, which included certain interim trafficking measures in prosecution of human trafficking. This study compares the South African legal framework, consisting of both the Trafficking Act position and the pre-existing legal resources, with the international obligations in terms of the Convention and Palermo Protocol in order to ascertain whether South Africa meets the three international obligations of, firstly, the criminalisation of certain prescribed conduct, secondly, victim protection and assistance and, thirdly, the prevention and combat of trafficking in persons. This study focuses on analysing the compliance of South Africa’s trafficking definition with the international offence. The mens rea required internationally is discussed and compared to the mens rea required by the Trafficking Act. This study draws the conclusion that although the Trafficking Act definition and further provisions predominantly satisfy the international requirements, certain unacceptable lacunae exist in the law. The failure to waive the requirement of the prohibited means in respect of child trafficking as well as the neglect to effect the provisions in respect of foreign victims of trafficking are material defects that must be addressed. Recommendations to remedy the legislative flaws are consequently made in order to strengthen South Africa’s international compliance.