South Africa

Paragraph 112

Under Bantu custom widows become the responsibility of the heir. If they are still capable of having children, they are in terms of the custom of levirate allotted to the brothers of the deceased. The law, however, forbids the compulsory application of the levirate and a widow need, therefore, not consort with a man unless she so desires.

10. Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

12. Freedom and security of the person

1. Everyone has the right to freedom and security of the person, which includes the right-

a. not to be deprived of freedom arbitrarily or without just cause;

b. not to be detained without trial;

c. to be free from all forms of violence from either public or private sources;

d. not to be tortured in any way; and

e. not to be treated or punished in a cruel, inhuman or degrading way.

2. Everyone has the right to bodily and psychological integrity, which includes the right-

a. to make decisions concerning reproduction;

b. to security in and control over their body; and

c. not to be subjected to medical or scientific experiments without their informed consent.

13. Slavery, servitude and forced labour

No one may be subjected to slavery, servitude or forced labour.

21. Freedom of movement and residence

1. Everyone has the right to freedom of movement.

3. Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.

22. Freedom of trade, occupation and profession

Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

23. Labour relations

Everyone has the right to fair labour practices.

28. Children

1. Every child has the right-

e. to be protected from exploitative labour practices;

f. not to be required or permitted to perform work or provide services that-

i. are inappropriate for a person of that child’s age; or

ii. place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;

Table of non-derogable rights

Row 5

Column 1. Section number

13

Column 2. Section title

Slavery, servitude and forced labour

Column 3. Extent to which the right is non-derogable

With respect to slavery and servitude

Constitution 1996 (revised 2012) (PDF)

71. Trafficking in persons for sexual purposes

(1) A person (‘A’) who trafficks any person (‘B’), without the consent of B, is guilty of the offence of trafficking in persons for sexual purposes.

(2) A person who-

(a) orders, commands, organises, supervises, controls or directs trafficking;

(b) performs any act which is aimed at committing, causing, bringing about, encouraging, promoting, contributing towards or participating in trafficking; or

(c) incites, instigates, commands, aids, advises, recruits, encourages or procures any other person to commit, cause, bring about, promote, perform, contribute towards or participate in trafficking, is guilty of an offence of involvement in trafficking in persons for sexual purposes.

(3) For the purpose of subsection (1), ‘consent’ means voluntary or uncoerced agreement.

(4) Circumstances in which B does not voluntarily or without coercion agree to being trafficked, as contemplated in subsection (3), include, but are not limited to, the following-

(a) where B submits or is subjected to such an act as a result of any one or more of the means or circumstances contemplated in subparagraphs (i) to (vii) of the definition of trafficking having been used or being present; or

(b) where B is incapable in law of appreciating the nature of the act, including where B is, at the time of the commission of such act-

(i) asleep;

(ii) unconscious;

(iii) in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that B’s consciousness or judgement is adversely affected;

(iv) a child below the age of 12 years; or

(v) a person who is mentally disabled.

(5) A person who has been trafficked is not liable to stand trial for any criminal offence, including any migration-related offence, which was committed as a direct result of being trafficked.

(6)

(a) A commercial carrier commits an offence if the carrier brings a person into or removes a person from the Republic and, upon entry into or departure from the Republic, the person does not have the travel documents required for lawful entry into or departure from the Republic.

(b) A commercial carrier is not guilty of an offence under paragraph (a) if-

(i) the carrier had reasonable grounds to believe that the documents that the person has are the travel documents required for lawful entry into or departure from the Republic by that person;

(ii) the person possessed the travel documents required for lawful entry into or departure from the Republic when that person boarded, or last boarded, the means of transport to travel to or from the Republic; or

(iii) entry into the Republic occurred only because of illness of or injury to a child or adult on board, stress of weather or other circumstances beyond the control of the commercial carrier.

(c) A commercial carrier is, in addition to any offence under this section, liable to pay the costs of the trafficked person’s care an d safekeeping and return from, the Republic.

(d) A court must, when convicting a commercial carrier of an offence under this section, in addition order the commercial carrier concerned to pay the costs contemplated in paragraph (c).

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of  2007 (PDF)

4. Trafficking in persons

(1) 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.

(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.

5. Debt bondage

Any person who intentionally engages in conduct that causes another person to enter into debt bondage is guilty of an offence.

6. Possession, destruction, confiscation, concealment of or tampering with documents

Any person who has in his or her possession or intentionally destroys, confiscates, conceals or tampers with any actual or purported identification document, passport or other travel document of a victim of trafficking in facilitating or promoting trafficking in persons is guilty of an offence.

7. Using services of victims of trafficking

Any person who intentionally benefits, financially or otherwise, from the services of a victim of trafficking or uses or enables another person to use the services of a victim of trafficking and knows or ought reasonably to have known or suspected that such person is a victim of trafficking, is guilty of an offence.

8. Conduct facilitating trafficking in persons

(1) Any person who—

(a) intentionally leases or subleases any room, house, building or establishment

for facilitating or promoting trafficking in persons or allows it to be used or ought reasonably to have known or suspected that it will be used to facilitate or promote trafficking in persons;

(b) subsequent to the lease or sublease of any room, house, building or establishment, becomes aware or ought reasonably to have known or suspected that it is being used to facilitate or promote trafficking in persons and fails to report that knowledge to a police official;

(c) intentionally advertises, publishes, prints, broadcasts, distributes or causes the

advertisement, publication, printing, broadcast or distribution of information that facilitates or promotes trafficking in persons by any means, including the use of the internet or other information technology; or

(d) finances, controls or organises the commission of an offence under this Chapter,

is guilty of an offence.

(2)

(a)An electronic communications service provider operating in the Republic must take all reasonable steps to prevent the use of its service for the hosting of information referred to in subsection (1)(c).

(b) An electronic communications service provider that is aware or becomes aware of any electronic communications which contain information referred to in subsection (1)(c) and which is stored upon or transmitted over its electronic communications system must—

(i) without delay report the electronic communications identity number from which those electronic communications originated and any other particulars available to such electronic communications service provider which can be used to identify the person or electronic communications service provider (including an electronic communications service provider operating outside the Republic) from who or from which those electronic communications originated, to the South African Police Service;

(ii) take such reasonable steps as are necessary to preserve evidence as may be required by the relevant investigation and prosecuting authorities, for purposes of investigation and prosecution by the relevant authorities; and

(iii) without delay take such reasonable steps as are necessary to prevent continued access to those electronic communications—

(aa) by any of the customers of that electronic communications service

provider; or

(bb) by any person if they are stored on the system of the electronic communications service provider.

(3) An electronic communications service provider which fails to comply with the provisions of subsection (2)(a) or (b) is guilty of an offence.

(4) Nothing in this section places a general obligation on an electronic communications service provider to—

(a) monitor the data which it transmits or stores; or

(b) actively seek facts or circumstances indicating an unlawful activity.

(5) An electronic communications service provider is not liable for any loss sustained by or damage caused to any person as a result of any action taken in good faith in terms of subsection (2)(b)(iii).

10. Involvement in offences under this Chapter

(1) Any person who—

(a) attempts to commit or performs any act aimed at participating in the commission of;

(b) incites, instigates, commands, directs, aids, promotes, advises, recruits, encourages or procures any other person to commit; or

(c) conspires with any other person to commit, an offence under this Chapter is guilty of an offence.

(2) A person who is found guilty of an offence referred to in subsection (1) is liable, on conviction, to the penalties for the offence in question, as provided for in section 13.

13. Penalties

A person convicted of an offence referred to in—

(a) section 4(1) is, subject to section 51 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), liable to a fine not exceeding R100 million or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine or both;

(b) section 4(2) is liable to a fine not exceeding R100 million or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine or both;

(c) section 5, 7 or 23 is liable to a fine or imprisonment for a period not exceeding 15 years or both;

(d) section 6 or 8(1) is liable to a fine or imprisonment for a period not exceeding 10 years or both; or

(e) section 8(3), 9, 18(9) or 19(13) is liable to a fine or imprisonment for a period not exceeding five years or both.

Prevention and Combating of Trafficking in Persons Act 2013 (PDF)

282. UN Protocol to Prevent Trafficking in Persons to have force of law

The UN Protocol to Prevent Trafficking in Persons is in force in the Republic and its provisions are law in the Republic, subject to the provisions of this Act.

284. Trafficking in children prohibited

(1) No person, natural or juristic, or a partnership may traffic a child or allow a child to be trafficked.

(2) It is no defence to a charge of contravening subsection (1) that child to be trafficked.

(a) a child who is a victim of trafficking or a person having control over that child 30 has consented to-

(i) the intended exploitation; or

(ii) the adoption of the child facilitated or secured through illegal means; or

(b) the intended exploitation or adoption of a child referred to in paragraph (a) did not occur.

(3) In order to establish the liability, in terms of subsection (I), of an employer or principal, the conduct of an employee or agent of or any other person acting on behalf of the employer or principal may be attributed to the employer or principal if that person is acting-

(a) within the scope of his or her employment;

(b) within the scope of his or her actual or apparent authority; or

(c) with the express or implied consent of a director, member or partner of the employer or principal.

(4) A finding by a court that an employer or principal has contravened subsection (1) serves as a ground for revoking the licence or registration of the employer or principal to operate.

285. Behaviour facilitating trafficking in children prohibited

(1) No person, natural or juristic, or a partnership, may-

(a) knowingly lease or sublease or allow any room, house, building or establishment to be used for the purpose of harbouring a child who is a victim of trafficking; and

(b) advertise, publish, print, broadcast, distribute or cause the advertisement, publication, printing, broadcast or distribution of information that suggests or alludes to trafficking by any means, including the use of the Internet or other information technology.

(2) Every Internet service provider operating in the Republic must report to the South 10 African Police Service any site on its server that contains information in contravention of subsection (1).

Implementation of the Rome Statute of the International Criminal Court 2002

Schedule 1 Crimes

Part 2 Crimes against Humanity

1. ‘A crime against humanity’ means any of the following conduct when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(c) enslavement.

2. For the purpose of item 1 of this Part:

(c) ‘enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

Part 3 War Crimes

‘War crimes’ mean any of the following:

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following conduct:

(xxii) committing rape, sexual slavery, enforced prostitution, forced pregnancy as defined in paragraph (f) of item 2 of Part 2, enforced sterilisation, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following conduct:

(vi) committing rape, sexual slavery, enforced prostitution, forced pregnancy as defined in paragraph (f) of item 2 of Part 2, enforced sterilisation and any other form of sexual violence also constituting a serious violation of Article 3 common to the four Geneva Conventions.

Children’s Act 2005 (PDF)

PROHIBITION OF EMPLOYMENT OF CHILDREN AND FORCED LABOUR- SECTIONS

6.1 It is a criminal offence to employ a child under 15 years of age.

6.2 Children under 18 may not be employed to do work inappropriate for their age or that places them at risk.

6.3 Causing, demanding or requiring forced labour is a criminal offence.

BASIC CONDITIONS EMPLOYMENT ACT (PDF)