2018 Trafficking in Persons Report - South Africa

SOUTH AFRICA: TIER 2 WATCH LIST

The Government of South Africa does not fully meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government demonstrated significant efforts during the reporting period by investigating 82 potential trafficking cases, prosecuting 23 potential traffickers, and convicting eight traffickers, two under the Prevention and Combating of Trafficking in Persons Act (PACOTIP). The government also arrested several low level officials for complicity in cross-border trafficking. The South Africa Police Service (SAPS) finalized standard operating procedures (SOPs) for implementation of PACOTIP and the government trained front-line responders on its provisions.

The government identified significantly more victims over the previous reporting period and referred them to care, upgrading 12 of 14 shelters to provide comprehensive psycho-social assistance to victims. The government also conducted numerous public awareness raising activities. However, the government did not demonstrate increasing efforts overall compared to the previous reporting period. Although the government convicted eight traffickers, four received suspended sentences, which were inadequate compared to the seriousness of the crime. Official complicity and allegations of official complicity affected the government's prosecution, protection, and prevention efforts and there were significant concerns for victim protection. The implementing regulations for PACOTIP's immigration provisions have not been promulgated since its enactment in 2013, and officials lacked adequate training on identification measures, which occasionally led the government to arrest, detain, and deport victims. The government sometimes denied foreign nationals protective services, especially if they chose not to participate in an investigation. For the second consecutive year, the government's lack of sufficient funding for anti-trafficking efforts prevented front-line responders from fully implementing the anti-trafficking law. Therefore South Africa was downgraded to Tier 2 Watch List.

RECOMMENDATIONS FOR SOUTH AFRICA

Investigate and prosecute officials suspected of complicity in trafficking crimes; promulgate the immigration provisions in sections 15, 16, and 31(2)(b)(ii) of PACOTIP and cease efforts to deny access to immigration relief, including the asylum process, on the basis of trafficking victimization; fund and increase efforts to fully implement PACOTIP and related regulations; increase efforts and resources to identify trafficking victims, including to screen for trafficking indicators among vulnerable populations, including potential deportees and women in prostitution, and continue to train law enforcement and social service officials on these provisions and victim identification measures; amend anti-trafficking law to remove sentencing provisions that allow fines in lieu of imprisonment; increase efforts to investigate, prosecute, and convict traffickers, including employers who use forced labor, under PACOTIP; ensure victims are issued the appropriate immigration identification documents in order to receive protective services; train law enforcement and social service providers to use a victim-centered approach when interacting with potential victims and recognize initial consent is irrelevant; establish a translator database to expand the capacity to seek justice for foreign trafficking victims; replicate the coordinated anti-trafficking law enforcement and victim referral mechanisms of KwaZulu-Natal (KZN) and Western Cape in all provinces; extend the availability of drug rehabilitation services to trafficking victims; certify or establish additional shelters for male victims; provide anti-trafficking training for diplomatic personnel and troops deployed abroad; and institute formal procedures to compile national statistics on traffickers prosecuted and victims assisted.

PROSECUTION

The government maintained uneven and inadequate prosecution efforts. Official complicity in trafficking crimes remained a concern. The PACOTIP of 2013 criminalized sex and labor trafficking and prescribed penalties of up to life imprisonment, a fine of up to 100 million South African rand ($8.1 million), or both. The penalties were sufficiently stringent; however, by allowing for a fine in lieu of imprisonment, the prescribed punishment was not commensurate with those for other serious crimes, such as rape. The implementing regulations for PACOTIP's immigration provisions found in sections 15, 16, and 31(2)(b)(ii) have not been promulgated. The Sexual Offenses Act (SOA) also criminalized the sex trafficking of children and adults and prescribed penalties of up to 20 years imprisonment; these penalties were sufficiently stringent and, with respect to sex trafficking, commensurate with other serious crimes, such as rape. The Basic Conditions of Employment Act of 1997 (BCEA), amended in 2014, criminalized forced labor and prescribed maximum penalties of three to six years imprisonment. In addition, the Children's Amendment Act of 2005 prescribed penalties of five years to life imprisonment or fines for the use, procurement, or offer of a child for slavery, commercial sexual exploitation, or to commit crimes. Where relevant, prosecutors sometimes relied on the Prevention of Organized Crime Act of 1998 in combination with SOA, which added additional charges – such as money laundering, racketeering, and criminal gang activity – and increased penalties of convicted defendants.

The Department of Priority Crime Investigation reported it investigated 82 potential trafficking cases and collaborated closely with the National Prosecuting Authority (NPA) to compile evidence and build cases. The government initiated prosecutions of 23 cases compared to six cases in the previous year, and it obtained convictions of eight traffickers, compared to 11 traffickers convicted in 2016. The government sentenced two traffickers to terms of imprisonment; one trafficker received two consecutive life sentences and the other trafficker received 25 years imprisonment. The government convicted six additional traffickers, four of whom received suspended sentences; one case was withdrawn due to the suspect's death, and one case was overturned on appeal and resulted in an acquittal. The government did not report action on pending prosecutions from previous years, some of which have been pending for multiple years. The government has made little progress in prosecution of traffickers connected to international syndicates involving Nigerian, Thai, Chinese, Russian, or Bulgarian traffickers, who dominate the commercial sex industry in several South African cities; NGOs reported police officers received bribes from crime syndicates. The government did not sufficiently fund agencies responsible for implementing the PACOTIP, leading to uneven enforcement of the law. NGOs reported local police stations often declined to investigate trafficking cases, even when NGOs provided case information, because of inadequate resources and training on PACOTIP. A lack of awareness of PACOTIP among law enforcement officers remained a significant barrier to its implementation; for example, in one training session, a law enforcement officer denied the existence of PACOTIP. However, SAPS did finalize SOPs for the implementation of PACOTIP for the first time.

The government arrested several border guards complicit in assisting smugglers and traffickers to pass through South Africa's borders, but did not prosecute or convict any complicit officials. There were allegations for the second consecutive year that officials within Department of Home Affairs (DHA) produced fraudulent birth certificates, passports, and other identification documents that facilitated trafficking crimes. NGOs reported some police officers solicited commercial sex acts from victims. Immigration officials, private security companies, and airline officials may have been involved in facilitating trafficking operations at international airports.

Although the majority of trafficking victims in South Africa are labor trafficking victims, the government did not comprehensively monitor or investigate forced child labor or the labor trafficking of adults in the agricultural, mining, construction, and fishing sectors. Department of Labor (DOL) inspectors continued to use administrative provisions within the BCEA as their core enforcement mechanism and rarely referred cases for criminal investigation. Although NGOs reported a lack of training across all agencies hindered the government's anti-trafficking efforts as a whole, the government conducted various trainings during the reporting period. In coordination with an international organization, the Department of Justice (DOJ) and NPA conducted two workshops for criminal justice practitioners on trafficking in persons. Department of Social Development (DSD) conducted a training for DHA on victim identification, and reporting and referral mechanisms. DSD also trained 198 social workers, five SAPS officers, three DHA officials, and a DOL representative throughout six training workshops on child exploitation and the roles and responsibilities of stakeholders in the implementation of PACOTIP. The NPA conducted four anti-trafficking training sessions for 53 prosecutors, covering PACOTIP, other relevant legislation used to try trafficking crimes, prosecutorial approaches, and trafficking case law. DOJ convened a two-day workshop at which representatives from all relevant agencies for every province came together to learn from South African and international anti-trafficking experts. Eighty high-level, empowered, passionate officials learned about best practices and protocols for fighting trafficking, from front-line responders to prosecutors.

PROTECTION

The government had mixed protection efforts. The government identified 399 victims and referred them to care, compared to 220 victims in 2016. In six cases, the government's response was cause for concern; four victims reportedly disappeared, one was reported missing from the police station and may have been returned to her traffickers, and the government incarcerated the sixth victim for holding a fraudulent visa. Of the 399 victims identified, 305 were victims of forced labor, 66 were victims of sex trafficking, 19 were exploited in domestic servitude. The overwhelming majority of victims were from South Africa; other victims were from Thailand, Lesotho, Ethiopia, Mozambique, Ghana, Nigeria, Eswatini, Bulgaria, and Tanzania. A lack of adequate funding resulted in a lack of training on victim identification, which led to unlawful arrests and detentions of trafficking victims during the reporting period. A government-wide lack of funding for anti-trafficking efforts led to front-line responders occasionally denying cases of trafficking to avoid assuming responsibility for costs of protective service provision. In some cases, victims did not receive protective services for more than two months after a referral was made. This waiting time was tripled in the case of male labor trafficking victims who waited at least six months for care and, when it was ultimately delivered, it was only as a result of an NGO assuming responsibility.

The government continued oversight of and partial funding for 14 accredited NGO-run multipurpose shelters and continued to oversee 17 NGO-run safe houses designed to temporarily shelter victims before transfer to an accredited shelter. The government provided a stipend on a per-person, per-night basis to the safe houses. There was only one shelter, in Gauteng, that could provide care for male trafficking victims. DSD trained 58 officials who comprised site verification teams responsible for formally accrediting shelters that provided protective services for victims. In coordination with an international organization, DSD conducted an assessment of all 14 DSD-accredited shelters; 12 were upgraded to the minimum standards to provide comprehensive psycho-social assistance to victims. The government provided shelters accessible to persons with disabilities that provided limited services for victims with disabilities; however, it is unclear if any victims received these services during the reporting period. Some government-run shelters refused to receive trafficking victims due to security, drug addiction, or cultural concerns.

DSD ran a nine-week rehabilitation program to address the psycho-social well-being of victims and paid for victims to receive residential treatment at rehabilitation centers for overcoming drug addiction. Not all provinces had such centers and it is unclear how many victims participated in the rehabilitation program during the reporting period. The government operated a network of 55 Thuthuzela Care Centers (TCCs) – full service crisis centers to assist victims of rape and sexual violence, including potential trafficking victims; it is unknown if TCCs assisted any victims of trafficking during the reporting period. Per DSD policy, staff prevented both adults and children from leaving shelters unaccompanied. Rapid-response teams comprised of government agencies and NGOs in Gauteng, Mpumalanga, Western Cape, and KZN continued to coordinate protective services, including shelter, for victims. DSD, which is responsible for designating and certifying trafficking victim status, continued to accept victims from law enforcement and coordinate their placement in registered shelters.

SAPS, DSD, NPA, DHA, and DOJ had shared formal procedures to identify and refer trafficking victims to care, in accordance with PACOTIP. Implementation of these procedures varied by department and province; not all officials were aware of referral procedures. SAPS was criticized for not identifying victims. Furthermore, the government occasionally denied foreign nationals protective services, especially if they chose not to participate in an investigation. NGOs reported that front-line officials responsible for receiving referrals were often unreachable and that DSD and SAPS were sometimes not informed of their responsibilities to certify and refer victims, a necessary step before victims could receive care of any kind. Furthermore, some SAPS officers regularly failed to follow referral guidelines. Some officials had difficulty identifying labor trafficking victims and differentiating between trafficking and smuggling crimes. SAPS did not always screen women and LGBTI persons in prostitution for trafficking indicators; officials sometimes charged them with prostitution and other violations. LGBTI persons, particularly transgendered persons, were especially vulnerable to trafficking due to social stigmatization; however, there was one shelter dedicated solely for victims from the LGBTI community, in the Western Cape. There were multiple reports that victims and potential victims were detained or incarcerated during the reporting period. Male labor trafficking victims remained largely unidentified and were frequently detained, deported, jailed, or fined. One Zimbabwean child trafficking victim who was exploited in forced labor was not given a court appearance for three months until he turned 18, at which point he was detained as an illegal immigrant and handed over to DHA for deportation. In another case, one NGO reported that three potential child victims were identified at a notoriously corrupt border crossing and subsequently detained; no assessment was conducted to determine whether they had endured trafficking or would qualify for asylum. One NGO continued its collaboration with DHA to screen and identify potential trafficking victims prior to deportation. Through this initiative, DHA and the NGO conducted more than 100 screenings and referred an unknown number of victims to care.

Officials encouraged victims to participate in the investigation and prosecution of traffickers and the government provided security and long-term care for an unknown number of victims who did so during the reporting period. However, some hurdles inhibited progress in providing justice and protection for victims. A lack of language interpretation continued to impede the investigation of trafficking cases, prosecution of suspected offenders, and screening of victims. PACOTIP provides trafficking victims relief from deportation; however, regulations to implement this provision were not promulgated. As a result, unless foreign victims actively participated in law enforcement investigations and law enforcement petitioned DHA on their behalf, victims faced the possibility of deportation. DHA often required foreign nationals to renew their immigration paperwork every 30 days, which placed an unnecessary financial and logistical burden on the NGOs providing care for victims. NGOs reported that in some cases DHA doubted trafficking victimization and used this as justification to deny access to immigration documentation and the asylum process. In instances where DHA denied such access, it did not always carry out substantive follow-up to determine if trafficking crimes had been committed, nor did it always coordinate with the appropriate front-line responders to identify potential trafficking victims. Sometimes foreign victims lacking appropriate documentation or residency status were not allowed to study or work for the duration of an investigation or court proceeding, thus sometimes limiting foreign victims' willingness to testify in court. Foreign national victims did not always have the same access to health care as South African victims. DSD policy required evidence of force, fraud, or coercion immediately after victims' rescue and their classification as victims of trafficking to facilitate placement in facilities. There was an insufficient number of psychologists trained on human trafficking who could provide expert testimony in court.

PREVENTION

The government made inadequate efforts to prevent trafficking. NPA and DOJ oversaw a national task team and six provincial task teams, which met quarterly to discuss counter-trafficking efforts and worked collaboratively to address challenges. The government conducted national awareness-raising activities during the reporting period. In November, DSD organized marches in multiple provinces at the beginning of its 16 Days Against Sexual and Gender-Based Violence campaign, which included anti-trafficking messages. In partnership with civil society, SAPS organized an anti-trafficking awareness campaign in Mpumalanga province. KZN and Western Cape provincial task teams used an interagency protocol to guide law enforcement interactions with women in prostitution; however, other task teams ceased meeting or functioning altogether. However, a lack of a well-funded, full-time anti-trafficking coordination team within the government limited the effectiveness of these task teams.

The government made efforts to reduce demand for commercial sex. The Cape Town Metro Police Department operated a vice squad that arrested an unknown number of individuals soliciting commercial sex. The government did not provide anti-trafficking training to its peacekeepers prior to their deployment abroad on international peacekeeping missions. In coordination with an international organization, the government provided anti-trafficking training for its diplomatic personnel.

TRAFFICKING PROFILE

As reported over the past five years, South Africa is a source, transit, and destination country for men, women, and children subjected to forced labor and sex trafficking. South African children were recruited from poor, rural areas to urban centers, such as Johannesburg, Cape Town, Durban, and Bloemfontein, where girls were subjected to sex trafficking and domestic servitude and boys are forced to work in street vending, food service, begging, criminal activities, and agriculture. Many children, including those with disabilities, were exploited in forced begging. A non-consensual and illegal form of ukuthwala, a traditional faux-abduction of women for marriage, was practiced in some remote villages in Eastern Cape province. Local criminal rings organized child sex trafficking, Russian and Bulgarian crime syndicates facilitated trafficking within the Cape Town commercial sex industry, and Thai and Chinese nationals often organized the sex trafficking of Asian men and women. Nigerian syndicates dominated the commercial sex industry in several provinces. To a lesser extent, syndicates recruited South African women to Europe and Asia, where some are forced into prostitution, domestic servitude, or drug smuggling. Law enforcement reported that traffickers employed forced drug use to coerce sex trafficking victims.

Thai and Chinese women remained the largest group of identified foreign victims. Women and girls from Brazil, Eastern Europe, Asia, and neighboring African countries are recruited for work in South Africa, where some are subjected to sex trafficking, domestic servitude, or forced labor in the service sector, or transported to Europe for similar purposes. An NGO in Western Cape province reported an increased number of Nigerian sex trafficking victims, many coerced through voodoo rituals, and more Nigerians in domestic servitude. Central African women are reportedly subjected to forced labor in hair salons. Foreign and South African LGBTI persons are subjected to sex trafficking. Foreign male forced labor victims have been identified aboard fishing vessels in South Africa's territorial waters; NGOs estimated 10 to 15 victims of labor trafficking disembark each month in Cape Town. Young men and boys from neighboring countries migrate to South Africa for farm work; some are subjected to forced labor and subsequently arrested and deported as illegal immigrants. Forced labor is reportedly used in fruit and vegetable farms across South Africa and vineyards in Western Cape province. Pakistanis and Bangladeshis are subjected to bonded labor in businesses owned by their co-nationals. Official complicity – including by police – in trafficking crimes remained a serious concern. Some well-known brothels previously identified as locations of sex trafficking continued to operate with officials' tacit approval.