In December 2023, there was discourse around the 443 children from Zimbabwe who the South African Border Management Authority said were the victims of human trafficking.[1] However, many argued that this was not a case of human trafficking, and that these children were visiting their families who live and work in South Africa. This begs the question: which category do these children fit into?

To answer the question, one has to understand the difference between children who are trafficked and those who are smuggled. The United Nations’ Palermo Protocol defines the term ‘human trafficking’ (of persons) as “the recruitment, transportation, transfer, harbouring or receipt of persons, using the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for exploitation”.

In addition, ‘child trafficking’ is defined as ‘the recruitment, transportation, transfer, harbouring or receipt’ of a child for the purpose of exploitation. Children are considered to be trafficked if they are recruited and transported for exploitation, regardless of their consent. Unlike the definition for adults, no questions about the ‘means’ are needed for children.

South Africa uses a similar definition under the Prevention and Combating of Trafficking in Persons Act. The Zimbabwean children, as argued by many, did not fit into this category. I am also of the view that they did not meet the requirements as defined in the Palermo Protocol. The children were transported for the purpose of visiting their relatives, but without following  the proper immigration procedures. This, however, does not mean that they were not at risk of being trafficked.

Smuggling occurs when children are illegally transported for the purpose of ‘profit’. The act involves making an agreement with a smuggler to enter a foreign country illegally by crossing an international border. It usually involves obtaining fraudulent documents and transportation across borders, sometimes involving harbouring in the destination country as well. To a greater extent, the case of the Zimbabwean children presented itself to be a case of smuggling, because the parents or relatives of these children entered into an agreement with smugglers to take the children to South Africa in exchange for payment. There was no immediate proof available to show that the smuggling could constitute ‘exploitation’.

The two terms are distinct both in theory and practice, yet are often conflated. The difference between the two is that under international law, trafficked children are considered to be victims of crime, while smuggling children has different consequences. Both acts are illegal. With trafficking, exploitation takes place; with smuggling, payment takes place in order to facilitate movement across foreign borders.

Having a clear definition of the two terms is important as it will guide the development and implementation of national policies. It will also ensure that there are support services for trafficked and smuggled children, who are at risk. There is a need to improve identification mechanisms and train law enforcement officers, border officials and social workers. During legal proceedings, countries like South Africa must offer child-friendly protection and support for child victims. Improved monitoring of child trafficking cases and data collection from a regional perspective are also very important.