the South african law reform commission has developed a discussion paper78 on trafficking in persons. the discussion paper was released for public comment in early 2006.79 this sophisticated system of consultation with opinion at all levels of society is seen as “a critical dimension of the law reform process.”80 this paper, which includes draft comprehensive legislation, sets out the commission’s preliminary recommendations for law reform regarding trafficking in persons. the legislative proposals may be summarised as follows81: the proposed Bill criminalises the act of trafficking in persons as well as debt bondage; the destruction, confiscation, possession and concealment of documents; using the services of trafficked victims; and conduct facilitating trafficking in persons.
In an attempt to protect victims of trafficking, the proposed Bill lists several guiding principles which must be considered when deciding as to whether a person is a victim of trafficking. at present, trafficked victims may be faced with arrest and prosecution for offences committed as a direct result of their situation. So, for instance, victims of trafficking may be prosecuted for prostitution, even though they were forced into prostitution by their traffickers. victims of trafficking may also be prosecuted for illegal entry in terms of the immigration act.82 in an attempt to remedy this situation, the proposed Bill provides that the decision as to whether criminal proceedings should be instituted against a victim of trafficking for an offence committed as a direct result of his or her status should rest with the national Director of Public Prosecutions.
Foreign victims of trafficking are often deported because they are labelled as illegal immigrants. it is proposed that the summary deportation of victims of trafficking be prohibited prior to an investigation being done into their circumstances. victims of trafficking should therefore be repatriated in terms of a process that takes cognisance of their safety not only during the repatriation process, but also in the countries to which they are to be returned. in the case of child victims of trafficking, due consideration should be given to the availability and suitability of care arrangements in the countries to which they are to be returned.