An analysis of the sentencing of human trafficking offenders under South African and international law

Abstract

There are concerns that the sentencing regime of offenders convicted of human trafficking in South Africa under the Prevention and Combating of Trafficking in Persons Act 77 of 2013 is too harsh and goes beyond the international guidelines. The international prescripts as found in the United Nations Convention Against Transnational Organised Crime and the Palermo Protocol (which South Africa is party to) do not provide much guidance on sentencing. Sentences for enslavement as a crime against humanity in international criminal law in the ICC, the ICTY, and the Special Court for Sierra Leone were studied to establish the background against which the South African courts sentences were analysed. The international courts’ statutes and rules provide guidance towards factors to be considered for sentencing and the determination of sentences to be imposed on convicted human traffickers. The primary sentence for human trafficking under international law is imprisonment, including life imprisonment, for purposes of retribution and deterrence. Similar to international courts, South African courts mete out stringent imprisonment sentences including life imprisonment on convicted human traffickers, even though judges have discretionary powers in sentencing. While South African legislation and case law are found to be compliant with international law; it is recommended in this study that the law be revised to be in line with the Rome Statute to establish a sentencing regime that will reflect the different levels of the blameworthiness of the offender, gravity of the offence, the impact on the victim and the interests of justice. This revision will address certain disparities in sentencing which are grounds for concerns regarding legality, proportionate sentencing and the protection of human rights.