State as pimp: sexual slavery in South Africa

Abstract

The disturbing prevalence of sexual slavery in South Africa is variously attributed to extreme poverty, unemployment, war, lack of food, and traditional practices that make it acceptable to treat women as commodities. Such ‘causes’ are better understood as enabling conditions. The demand for sex workers, organised criminal syndicates and the failure of legal imagination are the real drivers of the South African market. The authors address this failure of legal imagination and suggest how the constitutional prohibition against slavery can be used to develop a legal doctrine of sexual slavery, as well as on appropriate set of remedies, that will assist the State in its efforts to eradicate sexual trafficking.

Notes

²Constitution of the Republic of South Africa Act 108 of 1996, section 13.

³Although the IOM report is not especially clear on the subject, anecdotal reports suggest that not all sex slaves sold into bondage by their families have secured asylum-seeker status (IOM, 2003: 20–34).

⁵As one of the authors has written elsewhere, all of us gainfully employed, Constitutional Court judges included, commodify our bodies in exchange for remuneration (Woolman, 2003: §44.3(c)(ix)).

⁴See section 20(1)(aA) of the Sexual Offences Act 23 of 1957.

⁶Our critique of Jordan cannot be read as an implicit denial of women's agency. While we must recognise that material and legal conditions exist that impair the ability of women to shape their preferred way of being in the world, and that such obstacles to agency ought to be removed, we are naturally chary of the argument that to live life within the frame of a traditional community, or in the transgressive setting of a brothel, makes a woman's life undignified or demonstrates a lack of agency (Woolman, 2005: para. 36.5; Bhe, 2005).

⁷State complicity may take the form of a failure to adequately enforce domestic laws prohibiting the practice (Rassam, 1999: 320).

⁸While the nature of suffering in the sex trade itself may vary, sexual trafficking must be understood in terms of both slavery and rape. No meaningful volition exists. The absence of volition in the context of sex is rape (Katyal, 1993: 826: ‘If forced prostitutes today are not slaves, then neither was half of the Southern black population in 1850’).

⁹See Article 3 of the Palermo Protocol for a definition of trafficking. The Travaux Préparatoires states that ‘abuse of power’ refers ‘to any situation in which the person involved had no real and acceptable alternative but to submit to the abuse involved’ (United Nations, 2000b, Travaux Préparatoires: para. 63).

¹⁰ For example, the Protocol only applies to trafficking over borders (article 4) by a group of at least three people [article 2(a)]. As Anti-Slavery International (2002: 21) observes, these provisions may be necessary to combat international crime, but are irrelevant to a victim who has been trafficked by a single person or within national borders. As the IOM (2003) and SALC (2004) reports note, the proportion of trafficking that occurs within South Africa – especially within existing refugee communities – constitutes a substantial percentage of the total.

¹¹Act 51 of 1977.

¹²Act 121 of 1998.

¹³The Constitutional Court and the Supreme Court of Appeal have handed down two judgements recently on the constitutional protection afforded undocumented people in the face of singularly inhospitable immigration laws. The Supreme Court of Appeal, in Minister of Home Affairs v. Watchenuka, found unconstitutional regulations issued by the Minister and rules emanating from the Standing Committee for Refugee Affairs that visited blanket prohibitions with respect to employment and study on asylum seekers (2004). In Lawyers for Human Rights & Another v. Minister of Home Affairs & Another, the Constitutional Court construed several provisions of the Immigration Act in a manner that expands the level of due process to which undocumented people on board ships are entitled (2004: para. 20). Read together, the decisions support the dual proposition that our immigration laws must be interpreted in a manner that permits the actual, and not merely theoretical, exercise of every person's fundamental rights and that our immigration laws cannot be used to exact non-judicial penalties in order to further domestic policies aimed at blunting the influx of illegal immigrants.

¹⁴Slave ownership qua property ownership entails the control of any aspect of a person's autonomy – not just control over movement and commercial usage: ‘Slavery is often equated with forced labour or deprivation of liberty; however, sexual autonomy is a power attaching to the right of ownership of a person, and controlling another person's sexuality is, therefore, a form of slavery’ (Argibay, 2003: 375). See Prosecutor v. Kunarac (2002) (The Appeals Chamber of the ICTY considers ‘control of sexuality’ as a factor to be considered when determining whether the crime of enslavement was committed. The other factors listed are control of movement, control of physical environment, psychological control, measures to prevent escape, force or threat of force, duration assertion of exclusivity, cruel treatment and forced labour.)

¹⁵Justice O'Regan's oft-quoted dictum in Dawood provides a useful departure point:Human … diginty informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights … Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases howeverr, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour. (Dawood, 2000: para. 35) The Dawood dictum intimates that it is the infringement of FC section 13 (slavery) that establishes an infringement of FC section 10 (dignity) – and not the other way around. This relationship reflects the first rule of South African dignity jurisprudence. Where a court can identify the infringement of a more specific right, FC section 10 (dignity) will not add to the enquiry (Dawood, 2000: para. 35).

¹⁶Sex trafficking, forced prostitution, debt bondage, forced labour and exploitation of domestic workers are ‘obvious candidates for inclusion in the term “modern forms of slavery”’ (Rassam, 1999: 320). Rassam offers two criteria consistent with our own when attempting to determine whether a practice qualifies as a modern form of slavery: (1) extreme direct physical or psychological coercion that gives an individual or the state control over every aspect of another person's life; and (2) the presence of state complicity in the practice or a failure to adequately enforce domestic laws prohibiting the practice.

¹⁷The Immigration Act states that all illegal foreigners shall be deported [Act 13 of 2002, section 32(2)].

¹⁸In Grootboom (2001), the Constitutional Court set out the criteria by which it would assess whether the state had discharged its duty to create and to execute a coordinated and comprehensive programme designed to fulfil an obligation to promote, respect and fulfil a right (Grootboom, 2001: paras 39–46, 52, 53, 63–69, 74 83).

¹⁹Act 23 of 1957.

²⁰Act 13 of 2002.

²¹Act 75 of 1997.

²²The Law Commission recommends that the services offered to victims of trafficking should include at least ‘health care services, shelter, counselling, education and vocational training’ (SALC, 2004: 35). Gold (2003: 132): ‘Overall, victims need to feel empowered after a situation in which control was stripped from them. The ability to file private civil actions, obtain proper medical attention, and receive proper repatriation will slowly allow a victim to regain power in her own life.’

²³See Victims of Trafficking and Violence Protection Act of 2000; Hartsough (2002).

²⁴See UN High Commissioner for Human Rights: ‘[I]t is important in this context to note that victim protection must be considered separately to witness protection, as not all victims of trafficking will be selected … to act as witnesses in criminal proceedings’ (UNCHR, 1999: 5).