Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or similar to slavery. 1. Sale and trafficking of children. The Committee had previously noted the Government’s statement that sections 70 and 71 of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2003 B50B-2003 were intended to be of a temporary nature, pending the enactment of comprehensive legislation arising from the investigation by the South Africa Law Reform Commission relating to the trafficking of persons. According to these transitory provisions, a person who traffics any person without that person’s consent is guilty of the offence of trafficking in persons for sexual purposes. The Committee had also noted with interest the adoption of Children’s Act No. 38 of 2005. However, the Committee had noted that only certain sections of the Children’s Act had come into force and the full Act would not come into force until the Children’s Amendment Bill was passed by Parliament and the regulations, among which was the Children’s Amendment Bill, had been finalized, which was anticipated for 2008.

The Committee notes the Government’s indication that the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007 came into effect on 16 December 2007 after being signed into law by the President, pending the adoption of Chapters 5 and 6 for a later date. Accordingly, it notes that Chapter 3 (sections 15–22) which deals with sexual offences against children and Chapter 7 (sections 54–72) on General Provisions, including provisions on trafficking in persons have come into force. The Committee further notes the Government’s indication that the Children’s Act No. 38 of 2005 is in force, although the amendments made to it under the Children’s Amendment Bill have not yet come into force. It will therefore fully come into effect after the finalization and adoption of the Children’s Amendment Bill and its regulations. The Committee expresses the firm hope that the Government will take the necessary measures to ensure that the Children’s Act No. 38 of 2005, along with the Children’s Amendment Bill and its regulations are finalized and adopted in the near future. It also requests the Government to provide a copy of the Children’s Act 2005, and its regulations, once they are finalized and adopted.

2. Forced or compulsory recruitment for use in armed conflict. The Committee had previously noted that article 28(1)(i) of the Constitution states that every child has the right not to be used in armed conflict and to be protected in times of armed conflict. It had nonetheless noted that, pursuant to article 37(4), if a state of emergency is declared, some rights may be derogated from. It had noted that article 28(1)(i) is included in the rights that cannot be derogated from but only in so far as children under 15 years are concerned. Therefore, in a state of emergency, children between 15 and 18 could be subjected to forced recruitment for deployment in armed conflict if the emergency legislation permitted it. The Committee had requested the Government to indicate any measures taken or envisaged to prohibit the forced or compulsory recruitment of children under 18 years for use in armed conflict in a state of emergency.

The Committee notes the Government’s statement that the South African National Defence Force (SANDF) is a voluntary force with no compulsory conscription and that the minimum recruitment age into the SANDF is 18 years as stipulated in section 52 of the Defence Act. Hence the issue of forced recruitment in respect of children under 18 years does not arise in respect of the SANDF. The Government further states that section 58 of the Defence Act which deals with the state of emergency limits the obligation to serve in the SANDF to “contracted persons” which in terms of section 52 can only be a person of 18 years old. Further, according to section 91 of the Defence Act, the state of national defence is only limited to persons who are 18 and above. The Committee finally notes the Government’s indication that it is currently in the process of ratifying the UN Optional Protocol on the Rights of the Child on the involvement of children in armed conflict, and that the derogation contemplated in article 37(4) of the Constitution is subject to the legislation being consistent with South Africa’s obligations in terms of international law.

Article 3, clause (d), and Article 4, paragraph 1. Prohibition and determination of hazardous work. The Committee had previously noted the Government’s statement that the draft regulations determining the types of hazardous work were presented to the Advisory Council on Occupational Health and Safety for their consideration and endorsement. It had also noted that section 141(1)(e) of the Children’s Amendment Bill prohibits any person from encouraging, inducing or forcing, or allowing children, to perform labour that, by its nature or circumstances, is likely to harm their health, safety or morals, or that places a child’s well-being, education, physical or mental health, or spiritual, moral or social development at risk. The Committee notes with interest that Regulations 8 and 9 of the draft Basic Conditions of Employment Act Regulations on Hazardous Work (BCEA Regulations) contain a list of 38 types of work prohibited to children under 18 years of age. In addition, “piece-work” and “task work” where the remuneration is based on the quantity of work done, and on the completion of set tasks (section 5) and “night work” (section 7) are also prohibited to children under 18 years.

Article 5. Monitoring mechanisms. In its previous comments, the Committee had noted section 104 of the Children’s Amendment Bill which provides for the adoption of a comprehensive national strategy aimed at securing a properly resourced, coordinated and managed child protection system. Section 105 of the Bill further lists a number of persons, including labour inspectors, who upon observing that a child is in need of care and protection, must report this conclusion to the provincial Department of Social Development, a designated child protection organization, police official or clerk of the children’s court. According to section 150(1)(c), (e) and (g) of the Children’s Act, a child who lives or works on the streets or begs for a living, a child who has been exploited or lives in circumstances that expose the child to exploitation, or a child that may be exposed to circumstances which may seriously harm the physical, mental or social well-being of the child, is considered a child in need of care and protection. Furthermore, according to section 150(2)(a) of the same Act, a child who is a victim of child labour may be a child in need of care and protection and must be referred for investigation by a designated social worker. The Committee notes the Government’s indication that the Children’s Amendment Bill has not yet come into force. It notes the Government’s statement that the Department of Social Development is in the process of finalizing the regulations as well as some of the institutions and systems necessary for its implementation. The Committee hopes that the Children’s Amendment Bill will be adopted in the near future and that the monitoring mechanisms envisaged thereunder will be subsequently established. It requests the Government to provide information on any progress made in this regard.

Article 7, paragraph 1. Penalties. Following its previous comments, the Committee notes the information provided by the Government on the violations on child labour detected in the agricultural sector. According to this data, 16 cases of violations of child labour were registered, out of which 14 cases were investigated, six cases prosecuted, and a fine of 5,000 rand (ZAR) (US$672) was imposed in one case. It once again observes that no violations have been reported for cases of child trafficking, commercial sexual exploitation and pornography. The Committee notes that the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 which deals with sexual offences against children includes provisions on trafficking of children, prostitution and child pornography and has strengthened measures to prosecute offenders and perpetrators of these offences against children. The Committee requests the Government to provide information on the number of infringements reported, investigations, prosecutions, convictions and penal sanctions applied under the Criminal Law (Sexual Offences and Related Matters) with regard to the worst forms of child labour.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. 
1. Prevention of child trafficking. In its previous comments, the Committee had noted that under Child Labour Programme of Action (CLPA), various measures were envisaged to prevent child trafficking. It had also noted that the second phase of the CLPA, whose implementation was anticipated from 2008 to 2012, also envisaged additional measures to prevent child trafficking. The Committee notes that according to the Technical Progress Report (TPR) of 30 June 2008 of the ILO–IPEC project entitled Towards the elimination of the worst forms of child labour (TECL Project) which mainly focused on the implementation of the CLPA, a total of 186 children were prevented or withdrawn from trafficking during the CLPA-1 project duration through the provision of educational services or training opportunities. The Committee notes the Government’s indication that the second phase of CLPA 2008–13 aims to enable the country to reach the 2015 target for the eradication of the worst forms of child labour. The Committee further notes that as per the TPR of the TECL project of September 2009, the Government has initiated a child protection plan for the 2010 FIFA World Cup to prevent the increase in illegal activities which put children at risk, such as child trafficking, commercial exploitation of children and other worst forms of child labour. The Committee requests the Government to provide information on the impact of the child protection plan for the 2010 FIFA World Cup, in preventing the trafficking of children and other worst forms of child labour. It also requests the Government to provide information on the implementation of the measures aimed at preventing and combating the trafficking of children under 18 within the framework of the CLPA-II, and its impact.

2. Ensuring access to free basic education. The Committee had previously noted that a new system was introduced to prohibit the charging of school fees located in the poorest quintile of areas, with Government funding these schools, by amended national norms published by the Department of Education in South Africa. A total of 13,912 schools (40 per cent of all schools) had been declared no fee schools in 2007. Parents of children from households with low income attending schools other than no-fee schools could apply for exemption from paying fees. It also noted that in the CLPA-II, it has been envisaged to organize a campaign to raise awareness regarding the national school fee policy on exemptions.

The Committee notes the Government’s statement that the South African Schools Act (SASA) No. 84 of 1996 provides for compulsory education from the age of 7 to 15 years and provides for penalties for any parent who fails to comply with the compulsory attendance at school of their child. It also notes that according to the TPR of 2008 of the ILO–IPEC TECL Project, the major mainstreamed policy under the CLPA is the Child Support Grant (CSG), which addressed child poverty and which has had a positive effect on school enrolment. In 2006, 6,980,088 children were direct beneficiaries of the CSG, and in April 2008 this had increased to 8,216,334 children. According to the TPR of 2008, this grant which is currently available to children of up to 15 years shall be ultimately extended to all children up to the age of 18 years, for which discussions are ongoing with the Ministers of Finance and Social Development. The Committee further notes that according to the report of the Ministry of Education, May 2008 entitled “Learner Retention in the South African Schooling System”, there exists a sustained high enrolment rates of 95 per cent or above until about the age of 15 or 16, whereafter the enrolment rates fall quite sharply to about 50 per cent. However, according to a report entitled “Information on access to education in South Africa” (researched and compiled by the Refugee Documentation Centre of Ireland on 26 August 2009) available at the site of the United Nations High Commissioner for Refugees, since 1994, South Africa has made significant strides in improving access to basic education. Yet a recent survey suggests that approximately 400,000 children are out of school. Public education is fee based and though some children are entitled to fee exemption, low income parents find it difficult to pay for uniforms, books and supplies. Some children, therefore, are enrolled but do not attend school. Considering that education contributes to preventing children from engaging in the worst forms of child labour, the Committee requests the Government to take the necessary measures to ensure access to free basic education for all children. It also requests the Government to take the necessary measures to increase school attendance rates and reduce school drop-out rates, especially at the secondary level so as to prevent the engagement of children in the worst forms of child labour. The Committee finally requests the Government to provide information on the measures taken in this regard, and their impact.

3. Child scavenging and waste recycling. The Committee had previously noted that according to the project description document on scavenging and waste recycling work by children in South Africa (version 2.1, 22 May 2006), the CLPA had identified that the phenomenon of child scavenging, which was classified as a worst form of child labour by several international agencies, must be dealt with, with immediate urgency. It had also noted that, under TECL auspices, measures were envisaged to, notably, investigate the policy and legislative terrain analysing the processes and problems involved in regulating child scavenging and to utilize these findings to make policy and legislative recommendations and to devise a good practice model to regulate this informal work that is done against a background of poverty and livelihood survival.

The Committee notes the Government’s statement that following a study undertaken within the framework of the CLPA on children who scavenge on waste dumps, the Government has started taking action to address this problem. It notes that the study, initiated by TECL, involved visits to 17 landfills and dumpsites in Gauteng and Kwazulu-Natal, interviews with 75 children working at five of these sites, and interaction with landfill site managers and officials. The Government further states that this study has highlighted the hazards of waste sites which pose a risk of infection and injury to children, and after consultations with the civil society members, it was decided to implement the existing Occupational Safety Legislation to protect scavenging and to provide for more safety measures for all people working on such sites. Furthermore, the Department of Environmental Affairs shall pay special attention to regulate scavenging through the Waste Managing Bill. The Committee finally notes that according to section 9(c)(ii) of the draft BCEA Regulations on Hazardous work by children, requiring or permitting a child under 18 years of age to engage in scavenging or collecting waste from garbage or waste dumps is prohibited.

Clause (b). Providing the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour. 1. Child victims of trafficking and sexual exploitation. Following its previous comments, the Committee notes the Government’s statement that the South African Police Services and the Department of Social Development are in the process of developing systems for compiling data related to trafficking of children and the commercial sexual exploitation of children. The Committee notes that through the implementation of the programmes of action under the TECL project, 186 children were withdrawn or prevented from trafficking through educational services or training opportunities; 1,167 children were withdrawn or prevented from commercial sexual exploitation through educational services or training opportunities; and 252 children through other non-education-related services. The Committee further notes that sections 286 and 290 of the Children’s Act No. 38 of 2005 provides for assistance to child victims of trafficking and for the safe repatriation to the country of origin of child victims of trafficking. The Committee notes, however, that, according to “Trafficking in persons report 2009 – South Africa” available at the site of the United Nations High Commissioner for Refugees (www.unhcr.org), South Africa is a source, transit and destination country for trafficked men, women and children. Women and girls from Thailand, Congo, India, China, Taiwan, Russian Federation, Ukraine, Mozambique and Zimbabwe are trafficked to South Africa for commercial sexual exploitation, domestic servitude and forced labour in the service sector. Young men and boys from Mozambique, Malawi and Zimbabwe migrate illegally to South Africa for farm work, sometimes labouring for months in South Africa with little or no pay and under conditions of involuntary servitude. The Committee requests the Government to provide information on the effective and time-bound measures taken for the removal and rehabilitation of child victims of trafficking, and the results achieved. It also requests the Government to provide information on the number of child victims of trafficking who have been provided assistance and who have been safely repatriated to their countries of origin. It further requests the Government to provide information on the data compiled by the South African Police Services and the Department of Social Development on child trafficking and the commercial sexual exploitation of children.

2. Children used to commit crime. The Committee had previously noted that TECL project had designed a pilot programme for children used by adults and older children to commit crime (CUBAC). It had also noted that the strategy for addressing CUBAC included mechanisms to ensure overall ILO–IPEC strategies of prevention, withdrawal and rehabilitation. The programme focused on reintegration, which enables a child to return home and the community sufficiently equipped with skills so as not to commit further offences. The Committee notes the Government’s information that the Department of Social Development as well as the South African Police Services are developing systems and institutions to deal with children used by adults to commit crime. The Committee also notes that according to the ILO–IPEC TPR of 2008, within the framework of the TECL project, a new provision criminalizing the offence related to using of children by adults to commit crime has been introduced in the Children’s Act of 2005; and training material for prosecutors and magistrates dealing with CUBAC has also been developed. It further notes that the Gauteng and Western Cape Department of social development are currently implementing the CUBAC guidelines and training for prosecutors, probation officers and police. The Committee once again requests the Government to provide information on the number of children who had committed crimes who were effectively reintegrated into their communities through the CUBAC pilot programme under TECL. It also requests the Government to provide information on the systems and institutions established by the Department of Social Development as well as the South African Police Service to deal with children used by adults to commit crime.

Clause (d). Identify and reach out to children at special risk. Child victims/orphans of HIV/AIDS. The Committee had previously noted that the CLPA-II envisaged to pursue the measures undertaken within the CLPA-I to protect child victims of HIV/AIDS. It had also noted that the Government had a large-scale programme for the provision of anti-retroviral (ARV) treatment which would subsequently reduce the projected number of orphans. The Committee notes the Government’s statement that the Department of Social Development in collaboration with the National Action Committee for Children affected by HIV/AIDS (NACCA) developed and implemented a National Plan of Action (NAP) (2006–08) for orphans and other vulnerable children of HIV/AIDS. The main aim of this NAP was to reduce the vulnerability of child orphans of HIV/AIDS of the country and to ensure adequate protection and provision of a package of minimum services to these children. The Committee also notes the Government’s indication that the NAP 2006 was reviewed and a new National Plan of Action 2009–12 with the following strategic goals was developed:

–           strengthen and support the capacity of families to protect and care for orphaned children;

–           mobilize and strengthen community-based responses for the care, support and protection of orphaned children;

–           ensure that the legislation, policy, strategies and programmes are in place to protect the most vulnerable children;

–           ensure access of orphaned children to essential services;

–           raise awareness and advocate for the creation of a supportive environment for orphaned children; and

–           strengthen mechanisms to drive and support the implementation of NAP.

The Committee further notes that according to the Joint United Nations Programme on HIV/AIDS, UNAIDS (Country Situation, South Africa, July 2008) the Government has introduced a comprehensive programme for the management, treatment, care and support of AIDS. This programme has enrolled approximately 370,000 people as of September 2007 with ARV treatment in the public sector and an estimated 120,000 people in the private sector, which is the largest AIDS treatment programme in the world. The Committee notes, however, that according to the Epidemiological Fact Sheet for 2008 of the UNAIDS, there are an estimated 1,400,000 HIV/AIDS orphans in South Africa. Considering that the HIV/AIDS pandemic has serious consequences for orphans who are more exposed to the worst forms of child labour, the Committee encourages the Government to redouble its efforts to combat HIV/AIDS-induced child labour. It also requests the Government to provide information on the impact of the National Plan of Action 2009–12 on protecting child victims and orphans of HIV/AIDS from the worst forms of child labour.