Latest News Archive

Please select Category, Year, and then Month to display items

Juxtaposing human rights and human trafficking in South Africa

15 March 2021 | Story Prof Beatri Kruger | Photo Anja Aucamp

Prof Kruger web read more — Prof Beatri Kruger is a research fellow in the Free State Centre for Human Right at the UFS.

John Miller from the United States Office to Monitor Trafficking in Persons calls human trafficking: "The greatest human rights challenge of our generation."

But is this really the current position in South Africa? Let us do a reality check. New evidence-based insights were gained from convictions in several adult, as well as 25 child trafficking cases.

In 2011, Roelofs penned a picture of (sex) trafficking:

"It is a product of an increasing sex obsessed world with billions of dollars being earned from pornographic magazines, television channels and prostitution all because of slumping morality. It is obviously a very lucrative business. Whereas drugs and other narcotic substances can be used only once; a girl used as a sex slave can be sold over and over. This is the tragedy of this cruel exploitation of the vulnerable in our societies."

Exploitation of the vulnerable for financial gain

In 2019, in S v Ediozi Obi (case no CC40/2018), judge Natvarlal Ranchod referred to the above quote and concluded: “This is tragically illustrated in this matter before me …” In this case, several victims were vulnerable young children. They were trafficked, groomed, and repeatedly raped. “They were prostituted for accused 1's financial benefit. It is a sad indictment of certain members of the police force who were expected to bring perpetrators to book but instead, exploited the situation to their own advantage by taking bribes and themselves taking advantage of the young victims. This is some of the evidence that came out in this trial.”

In 2017 in S v Adina Dos Santos, the trafficker was sentenced to life imprisonment, which was confirmed on appeal. The evidence was that the trafficker promised minor Mozambican girls work in her hair salon in South Africa and an opportunity to study while working there. The girls, who were looking for a better life, were eventually threatened and forced to use narcotic drugs and then have sexual intercourse with several men daily. Recently, two female traffickers were sentenced to 19 life sentences in S v Seleso for sexually exploiting a minor girl online by advertising her sexual services to clients on a website.

A multitude of human rights are being violated in human trafficking scenarios. It ranges from violating the right to dignity, privacy, and life, to the right to be free from all forms of violence and not to be treated in a cruel, inhuman, or degrading way. – Prof Beatri Kruger

The trafficking convictions further confirmed that, apart from sex trafficking, victims are also trafficked for other purposes in South Africa. Children as young as eight were trafficked from Mozambique and Nigeria to be exploited for labour purposes. The cases further confirmed that traffickers use an aberrant form of the ukuthwala custom as a guise to traffic minor girls into forced marriages. Furthermore, children were kidnapped and sold. A young mother even advertised her baby on Gumtree for R5 000.

Multitude of human rights are violated in human trafficking

This is a snapshot from our case law. Despite the culture of human rights enshrined in our constitution, it is clear that a multitude of human rights are being violated in human trafficking scenarios. It ranges from violating the right to dignity, privacy, and life, to the right to be free from all forms of violence and not to be treated in a cruel, inhuman, or degrading way. Judge Ranchod rightly declared in S v Obi that human trafficking violates basic human rights and is the cause of immeasurable trauma for victims, their families, and the communities in which they live. Protecting trafficked persons and their human rights is crucial – we have a great task ahead.

News Archive

The failure of the law

2004-06-04

Written by Lacea Loader

- Call for the protection of consumers’ and tax payers rights against corporate companies

An expert in commercial law has called for reforms to the Companies Act to protect the rights of consumers and investors.

“Consumers and tax payers are lulled into thinking the law protects them when it definitely does not,” said Prof Dines Gihwala this week during his inaugural lecture at the University of the Free State’s (UFS).

Prof Gihwala, vice-chairperson of the UFS Council, was inaugurated as extraordinary professor in commercial law at the UFS’s Faculty of Law.

He said that consumers, tax payers and shareholders think they can look to the law for an effective curb on the enormous power for ill that big business wields.

“Once the public is involved, the activities of big business must be controlled and regulated. It is the responsibility of the law to oversee and supervise such control and regulation,” said Prof Gihwala.

He said that, when undesirable consequences occur despite laws enacted specifically to prevent such results, it must be fair to suggest that the law has failed.

“The actual perpetrators of the undesirable behaviour seldom pay for it in any sense, not even when criminal conduct is involved. If directors of companies are criminally charged and convicted, the penalty is invariably a fine imposed on the company. So, ironically, it is the money of tax payers that is spent on investigating criminal conduct, formulating charges and ultimately prosecuting the culprits involved in corporate malpractice,” said Prof Gihwala.

According to Prof Gihwala the law continuously fails to hold companies meaningfully accountable to good and honest business values.

“Insider trading is a crime and, although legislation was introduced in 1998 to curb it, not a single successful criminal prosecution has taken place. While the law appears to be offering the public protection against unacceptable business behaviour, it does no such thing – the law cannot act as a deterrent if it is inadequate or not being enforced,” he said.

The government believed it was important to facilitate access to the country’s economic resources by those who had been denied it in the past. The Broad Based Economic Empowerment Act of 2003 (BBEE), is legislation to do just that. “We should be asking ourselves whether it is really possible for an individual, handicapped by the inequities of the past, to compete in the real business world even though the BBEE Act is now part of the law?,” said Prof Gihwala.

Prof Gihwala said that judges prefer to follow precedent instead of taking bold initiative. “Following precedent is safe at a personal level. To do so will elicit no outcry of disapproval and one’s professional reputation is protected. The law needs to evolve and it is the responsibility of the judiciary to see that it happens in an orderly fashion. Courts often take the easy way out, and when the opportunity to be bold and creative presents itself, it is ignored,” he said.

“Perhaps we are expecting too much from the courts. If changes are to be made to the level of protection to the investing public by the law, Parliament must play its proper role. It is desirable for Parliament to be proactive. Those tasked with the responsibility of rewriting our Companies Act should be bold and imaginative. They should remove once and for all those parts of our common law which frustrate the ideals of our Constitution, and in particular those which conflict with the principles of the BBEE Act,” said Prof Gihwala.

According to Prof Gihwala, the following reforms are necessary:

• establishing a unit that is part of the office of the Registrar of Companies to bolster a whole inspectorate in regard to companies’ affairs;
• companies who are liable to pay a fine or fines, should have the right to take action to recover that fine from those responsible for the conduct;
• and serious transgression of the law should allow for imprisonment only – there should be no room for the payment of fines.

Prof Gihwala ended the lecture by saying: “If the opportunity to re-work the Companies Act is not grabbed with both hands, we will witness yet another failure in the law. Even more people will come to believe that the law is stupid and that it has made fools of them. And that would be the worst possible news in our developing democracy, where we are struggling to ensure that the Rule of Law prevails and that every one of us has respect for the law”.

Back

Economic and Management Sciences

Education

Health Sciences

The Humanities

Law

Natural and Agricultural Sciences

Theology and Religion

Open Distance Learning

Business School

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept