Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013)Chapter 9 : Administration of Act44. National instructions and directives |
(1)
| (a) | The Director-General: Justice and Constitutional Development must issue directives regarding the following matters with which all police officials, members of the prosecuting authority and officials of the Departments of Home Affairs, Labour and Social Development must comply in the execution of their functions in terms of this Act, after consultation with the National Commissioner of the South African Police Service, the National Director of Public Prosecutions, the Chief Executive Officer of the Government Communication and Information System, the Commissioner of the South African Revenue Service and the Directors-General: Health, Home Affairs, International Relations and Cooperation, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities, where such consultation is necessary and relevant: |
| (i) | The manner in which the reporting of cases related to trafficking in persons must be dealt with; |
| (ii) | measures to be taken in instances where foreign victims of trafficking are not conversant with any of the official languages of the Republic; and |
| (iii) | measures to be taken to ensure the safety of victims of trafficking or other potential witnesses if there is a likelihood that harm might result to them as a result of the reporting and consequent investigation of and prosecution of the case. |
| (b) | The Minister must submit all directives provided for in paragraph (a) to Parliament 30 days before they are issued. |
| (c) | The Director-General: Justice and Constitutional Development must, after the expiry of the 30-day period, publish the directives on the website of the Department of Justice and Constitutional Development. |
| (d) | The functionaries referred to in paragraph (a) must provide any relevant information to the Director-General: Justice and Constitutional Development as he or she may require in preparing the directives referred to in paragraph (a). |
| (2) | The National Commissioner of the South African Police Service must issue national instructions as provided for in section 25 of the South African Police Service Act, 1995 (Act No. 68 of 1995), regarding the following matters with which all police officials must comply in the execution of their functions in terms of this Act, after consultation with the Directors-General: Health, Home Affairs, International Relations and Cooperation, Justice and Constitutional Development, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities, the Chief Executive Officer: Government Communication and Information System, the Commissioner of the South African Revenue Service and the National Director of Public Prosecutions, where such consultation is necessary and relevant: |
| (a) | The division or divisions within the police to be tasked with the investigation of trafficking cases; |
| (b) | the manner in which trafficking cases are to be investigated; |
| (c) | the circumstances in which consultation with the prosecuting authority is required with the view to guiding the investigation of trafficking cases for purposes of obtaining the required evidence and to identify relevant witnesses; |
| (d) | measures to be taken in order to ensure the detection of trafficking in persons at South African ports of entry and borders; |
| (e) | the kind of information that must be obtained from a victim of trafficking with the view to provide such information to the prosecuting authority for purposes of determining the quantum of the damages suffered by the victim for which he or she may claim compensation in terms of section 29; and |
| (f) | the collection and analysis of information on reported cases of trafficking in persons, including information relating to— |
| (i) | the countries from which victims are being trafficked to the Republic; |
| (ii) | the countries to which South African citizens and other residents are being trafficked; |
| (iii) | the nationality of victims transiting the Republic and the countries to which they are being trafficked; |
| (iv) | the areas in the Republic to and from which victims are being trafficked; |
| (v) | the purposes for which the persons who have been identified as victims of trafficking have been trafficked; |
| (vi) | the profiles of the traffickers and their victims, including their age, gender, nationality and sex; |
| (vii) | the routes used by traffickers to enter and exit the Republic; |
| (viii) | the methods used by traffickers to recruit and transport their victims; |
| (ix) | the methods used by traffickers to keep victims in exploitative situations; |
| (x) | the methods and routes used for trafficking victims within the Republic; |
| (xi) | the types of travel documents that traffickers and their victims have used or attempted to use to cross the borders of the Republic and how those documents were obtained; and |
| (xii) | the link between trafficking operations and those involved in other forms of organised crime. |
| (3) | The National Commissioner of the South African Police Service must provide an annual report on the information referred to in subsection (2)(f) or any other relevant information to the Director-General: Justice and Constitutional Development, as determined by him or her. |
| (4) | The Director-General: Home Affairs must, after consultation with the Directors-General: Health, International Relations and Cooperation, Justice and Constitutional Development, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities, the Chief Executive Officer: Government Communication and Information System, the National Director of Public Prosecutions and the National Commissioner of the South African Police Service, where such consultation is necessary and relevant, issue directives regarding the collection and analysis of information on victims of trafficking who have been repatriated from the Republic in terms of section 31 and victims who have been repatriated to the Republic in terms of section 33, relating to— |
| (a) | the number of victims who have been repatriated to the Republic and the countries to which they have been trafficked; |
| (b) | the profiles of the victims, including the age, gender, nationality and sex of the victims; |
| (c) | the purposes for which the victims were trafficked; |
| (d) | the routes used by traffickers to exit the Republic and to enter the countries to which the victims were trafficked; |
| (e) | the methods used by traffickers to recruit and transport the victims; |
| (f) | the methods used by traffickers to keep victims in exploitative situations; and |
| (g) | the types of travel documents that traffickers and their victims have used or attempted to use to exit the Republic and to enter the countries to which the victims were trafficked and how these documents were obtained. |
(5)
| (a) | The Minister of Home Affairs must submit all directives provided for in subsection (4) to Parliament 30 days before they are issued. |
| (b) | The Director-General: Home Affairs must, after the expiry of the 30-day period, publish the directives on the website of the Department of Home Affairs. |
| (c) | The Director-General: Home Affairs must provide an annual report on the information referred to in subsection (4) or any other relevant information to the Director-General: Justice and Constitutional Development, as determined by him or her. |
| (6) | The Director-General: Social Development must issue directives regarding the following matters with which all police officials, members of the prosecuting authority and other functionaries must comply in the execution of their functions in terms of this Act, after consultation with the Directors-General: Health, Home Affairs, International Relations and Cooperation, Justice and Constitutional Development, Labour, State Security Agency and Women, Children and People with Disabilities, the Chief Executive Officer: Government Communication and Information System, the National Director of Public Prosecutions, the Commissioner of the South African Revenue Service and the National Commissioner of the South African Police Service, where such consultation is necessary and relevant: |
| (a) | The manner in which victims of trafficking must be identified, interviewed and treated, with particular attention to the vulnerability of children; and |
| (b) | the referral of victims of trafficking to social, health care and psychological services. |
(7)
| (a) | The Minister of Social Development must submit all directives provided for in subsection (6) to Parliament 30 days before they are issued. |
| (b) | The Director-General: Social Development must, after the expiry of the 30-day period, publish the directives on the website of the Department of Social Development. |
| (c) | The Director-General: Social Development must provide an annual report on any relevant information to the Director-General: Justice and Constitutional Development, as determined by him or her. |
| (8) | The National Director of Public Prosecutions must issue directives regarding all matters which are necessary or expedient to be provided for and which are to be complied with by all members of the prosecuting authority who are tasked with the institution and conducting of prosecutions in cases relating to trafficking in persons, in consultation with the Minister and after consultation with the Directors-General: Health, Home Affairs, International Relations and Cooperation, Justice and Constitutional Development, Labour, Social Development, State Security Agency and Women, Children and People with Disabilities and the National Commissioner of the South African Police Service, the Commissioner of the South African Revenue Service and the Chief Executive Officer: Government Communication and Information System, where such consultation is necessary and relevant, including the following: |
| (a) | the manner in which cases relating to trafficking in persons should be dealt with; |
| (b) | the criteria to be used and the circumstances in which the prosecution must apply to court for an order that a witness and, in particular, child witnesses give evidence by means of closed circuit television as provided for in section 158 of the Criminal Procedure Act, if the court does not make an order on its own accord in terms subsection (2)(a) of that section or if an application in terms of subsection (2)(b) of that section is not made; |
| (c) | the criteria to be used and the circumstances in which the prosecution must request the court to consider appointing a competent person as an intermediary as provided for in section 170A of the Criminal Procedure Act, in respect of a child witness; |
| (d) | the circumstances in which the prosecution must request the court to consider directing that the proceedings may not take place in open court as provided for in section 153 of the Criminal Procedure Act; |
| (e) | the circumstances in which the prosecution must request the court to consider directing that the identity of a witness should not be revealed or that it should not be revealed for a period specified by the court as provided for in section 153 of the Criminal Procedure Act; |
| (f) | the circumstances in which the prosecution must request the court to consider prohibiting the publication of the identity of the complainant in the case as provided for in section 154 of the Criminal Procedure Act or of the complainant’s family, including the publication of information that may lead to the identification of the complainant or the complainant’s family; |
| (g) | the need to inform victims of trafficking about their right to and the process to claim compensation in terms of section 29; |
| (h) | the kind of information that must be obtained from a victim of trafficking for purposes of determining the quantum of the damages suffered by the victim for which he or she may claim compensation in terms of section 29; and |
| (i) | the collection and analysis of information relating to— |
| (i) | the number of trafficking prosecutions, convictions and the form of sentences imposed on traffickers; |
| (ii) | the number of victims of trafficking awarded compensation orders in terms of section 29; and |
| (iii) | the number of cases where the courts did not provide compensation orders in terms of section 29 and the reasons for doing so. |
(9)
| (a) | The Minister must submit any directives provided for in subsection (8) to Parliament 30 days before they are issued. |
| (b) | The National Director of Public Prosecutions must, after the expiry of the 30-day period, publish the directives on the website of the National Prosecuting Authority. |
| (c) | The National Director of Public Prosecutions must provide an annual report on the information referred to in subsection (8)(i) or any other relevant information to the Director-General: Justice and Constitutional Development as determined by him or her. |
| (10) | The Director-General: Justice and Constitutional Development, the National Commissioner of the South African Police Service, the National Director of Public Prosecutions and the Directors-General: Home Affairs, Labour and Social Development must each develop training courses which must— |
| (a) | include training, also incorporating social context training, on the national instructions or directives, as the case may be, referred to in this section; and |
| (b) | provide for and promote the use of uniform norms, standards and procedures, to ensure that all police officials, prosecutors and other functionaries are able to deal with matters relating to trafficking in persons in an appropriate, efficient and sensitive manner. |
| (11) | The national instructions or directives referred to in this section must provide that adequate disciplinary steps are taken against any police official, prosecutor or other functionary who fails to comply with any duty imposed on him or her in terms of this Act or the national instructions or directives issued in terms of this Act. |
| (12) | Any national instruction or directive issued under this section may be amended or withdrawn in like manner. |