Mandatory reporting : the legal protection of child victims of trafficking for the exploitation of child labour in South Africa.

Abstract

On the 29th July 2013 the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (hereafter referred to as the “Trafficking Act”) was published, criminalising trafficking in persons and associated crimes as required by article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000¹ (hereafter referred to as the “UN Trafficking Protocol”), to which South Africa is a party.² One of its objectives is the provision of assistance and protection to victims of trafficking in persons through mandatory reporting provisions and through the entering of premises known or suspected to be involved in the commission of a trafficking offence or related trafficking offence.³ This thesis analyses the reporting provisions contained the Trafficking Act in relation to child victims of trafficking in persons for the purposes of labour exploitation in the domestic services sector.⁴ The study attempts to show the challenges posed by the definition of child trafficking for the purposes of child labour exploitation for the lay person required to identify and report a child victim of trafficking to the police. Firstly, an analysis of the concepts comprising the trafficking process are analysed to illustrate the layperson’s predicament in understanding child trafficking for exploitative purposes. The research then examines the reporting standard imposed on such persons in order to identify and report child trafficking and the role of public awareness and coherent guidelines to ensure and enhance identification and reporting. Lastly, an assessment is made as to whether the process associated with mandatory reporting, namely the entering into premises by the police based on a “reasonable belief”⁵ that the child’s safety is at risk or that the endangered child may be moved from those premises advances and upholds the “best interests of the child”⁶ It then concludes that the mandatory reporting provisions and the processes related to reporting promotes the “best interests of the child”. Recommendations are made to address the identified flaws in the legislation in order to ensure that the legislation is impregnable and ensures the effective protection of child victims of human trafficking.

¹ United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000 available at http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf accessed on 18 March 2014. ² Department of International Relations and Cooperation Republic of South Africa ‘International agreements and / or conferences signed by South Africa in relation to the youth, children and people with disabilities, particularly with regard to the United Nations and the African Union’ available at http://www.dfa.go.za/docs/2005/pq/pq2_455.htm accessed on 10 July 2014. ³ Preamble and section 18(1) and 18(4) of the Prevention and Combating of Trafficking in Persons Act 7 of 2013. ⁴ Ibid section 18(1) (a). ⁵ Ibid section 18(4) (a). ⁶ Section 28(2) of the Constitution of the Republic of South Africa, 1996 requires that in all matters concerning the child, the child’s best interests are supreme.