Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or similar to slavery. 1. Trafficking of children. Following its previous comments, the Committee notes the Government’s information that sections 70 and 71 of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2003 [B50B-2003] are 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 notes with interest the adoption of the Children’s Act, No. 38, of 2005. According to section 284 of this Act, found in Chapter 18 titled “Trafficking in Children”, no person “natural or juristic, or a partnership may traffic a child or allow a child to be trafficked”. The same Act defines trafficking as “the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of the Republic … for the purpose of exploitation”. The term “exploitation” is itself defined as: (a) all forms of slavery or practices similar to slavery, including debt bondage or forced marriage; (b) sexual exploitation; (c) servitude; (d) forced labour or services; and (e) child labour prohibited in terms of section 141. However, according to the information available to the Committee, it seems that while the Children’s Act has been adopted, only certain sections of it have come into force, and the full Act will not come into force until the Children’s Amendment Bill is passed by Parliament and the regulations, among which is the Children’s Amendment Bill (B19-2006), have been finalized, which is anticipated for early 2008. In this regard, the Committee draws the attention of the Government to Article 1 of the Convention that requires member States which have ratified it to take “immediate” measures to prohibit the worst forms of child labour “as a matter of urgency”. The Committee accordingly expresses the hope that both the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2003, and the Children’s Amendment Bill, 2006, will be adopted shortly and requests the Government to inform it of any progress. It also requests the Government to supply a copy of both these legislative texts, and 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. Such a law would contravene with Article 3(a) of the Convention. Noting that no information is contained in the Government’s report on this point, the Committee once again requests 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 in its next report.

Clause (b). Use, procuring or offering of a child for prostitution. Following its previous comments, the Committee notes the Government’s information that section 141 of the Children’s Amendment Bill prohibits the use, procuring, offering or employing of a child for purposes of commercial sexual exploitation. Moreover, the Committee notes that section 17 of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill will prohibit the use, procuring, offering, benefiting, permitting or allowing, of a commission of a sexual act with a child in return for financial or other reward, favour or compensation.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that section 141(1)(c) of the Children’s Amendment Bill will prohibit any person from using, procuring, offering or employing a child for illicit activities, including drug production and trafficking.

Article 3(d) and Article 4, paragraph 1. Prohibition and determination of hazardous work. Following its previous comments, the Committee notes the Government’s information 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. The Committee also notes 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 requests the Government to supply a copy of the draft regulations determining the types of hazardous work with its next report. It asks the Government to keep it informed on any progress.

Article 5. Monitoring mechanisms. In its previous comments, the Committee had noted the various monitoring mechanisms implemented in South Africa, including the Child Labour Intersectoral Group (CLIG), the Labour Inspectorate, the South African Police Service (SAPS), the Office on the Rights of the Child (ORC) and the Child Labour Action Programme Implementation Committee (CLAPIC). The Committee notes that section 104 of the Children’s Amendment Bill provides that the Minister must adopt a comprehensive national strategy aimed at securing a properly resourced, coordinated and managed child protection system. Section 105 of the Bill 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 sections 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 requests the Government to provide information on the activities of these monitoring mechanisms. As for the mechanism provided for in the Children’s Act and the Children’s Amendment Bill, the Committee asks the Government to keep it informed of any progress made in the adoption of the Bill and on the subsequent implementation of the mechanism.

Article 7, paragraph 1. Penalties. The Committee notes the Government’s information, in its report under Convention No. 138, that seven violations for matters of hazardous work, 12 for domestic labour and one for child slavery, have been reported after inspection, for the period of 31 March 2006 to 1 April 2007. The Committee observes that no violations have been reported for cases of child trafficking and commercial sexual exploitation and pornography. Furthermore, out of the 20 cases of violations reported, only 13 have been recommended for prosecution and two found guilty by courts, while five accused have been found not guilty. The Committee reminds the Government that, by virtue of Article 7, paragraph 1, of the Convention, the Government shall take the necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention, including through the provision and application of penal sanctions. Accordingly, the Committee asks the Government to take the necessary measures to ensure that persons who use, procure or offer children in the worst forms of child labour are prosecuted, and that sufficiently effective and dissuasive penalties are imposed. In this regard, it requests the Government to provide information on the number of infringements reported, investigations, prosecutions, convictions and penal sanctions applied under the relevant South African legislation.

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 CLAP, now CLPA, various measures were envisaged to prevent child trafficking:

(a)   the issuing of a directive to all prosecutors which underlines that trafficking should be viewed seriously, prosecuted effectively and vigorously and added to the existing list of serious crimes;

(b)   making it the responsibility of the DOL for monitoring and inspecting instances of employment-related trafficking;

(c)   ensuring regular contact with relevant stakeholders in other countries of the region dealing with trafficking;

(d)   the adoption of regional and bilateral agreements aimed at preventing trafficking; and

(e)   providing for training on the prevention of trafficking.

The Committee notes that the Government’s report does not contain sufficient information on the implementation of these measures in South Africa. However, it notes that under the second phase of the CLPA, whose implementation is anticipated from 2008 to 2012, the following additional measures are envisaged to prevent child trafficking:

(a)   the finalization of the drafting of the Trafficking Act by the South African Law Reform Commission (SALRC);

(b)   the signing, ratification and implementation by South Africa of the United Nations Convention against Trans-National Organized Crime, and of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children;

(c)   agreeing to standard procedures within the region for the extradition of foreign traffickers for prosecution according to South African law;

(d)   a national public awareness campaign which will highlight child trafficking;

(e)   informing organizations running helplines about child issues, including child trafficking and the commercial sexual exploitation of children; and

(f)    improving the quality, content and delivery of training on the prevention of trafficking.

The Committee once again requests the Government to provide information on the implementation of the measures aimed at preventing and combating the trafficking of children under 18 which were taken under the first phase of the CLPA. Furthermore, it asks the Government to provide information on the progress made in the second phase of the CLPA, once the programme is implemented.

2. Ensuring free basic education. Following its previous comments, the Committee notes the Government’s statement that the impact of the measures taken in the first phase of the CLPA on improving access to free basic education will take more time to be realized and that the statistics provided by the Government in its report should be used in the future to measure that impact. According to those statistics, approximately 98 per cent of 7–15-year-old children attended an education institution in 2005. However, according to the Government’s report, the primary school net enrolment ration for 2004 was of 87.4 per cent. The Committee notes 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. Already, a total of 13,912 schools (40 per cent of all schools) have been declared no fee schools in 2007. Parents of children from households with low income attending schools other than no-fee schools may apply for exemption from paying fees. Moreover, in the second phase of the CLPA, it is envisaged that a campaign will be organized to raise awareness regarding the national school fee policy on exemptions. Despite all this, the Government acknowledges that major challenges concerning education remain, and the poor social conditions of learners, as a result of high rates of unemployment, HIV/AIDS and poverty, hamper efforts of improving, notably, the quality of education. Considering that education contributes to preventing children from being engaged in the worst forms of child labour, the Committee encourages the Government to pursue its efforts to ensure that free basic education is provided for all children. Considering also that a number of years will have elapsed since the implementation of the first measures taken in the context of the CLPA, it asks the Government to provide information on the impact of the measures on improving access to free basic education in its next report.

3. Child scavenging and waste recycling. The Committee notes 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 has identified that the phenomenon of child scavenging, which has been classified as a worst form of child labour by several international agencies, must be dealt with, with immediate urgency. The Committee notes that, under TECL auspices, measures are 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 asks the Government to provide information on the impact of the measures taken under the TECL project on preventing children from doing scavenging work.

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. The Committee notes with interest that South Africa continues its efforts to combat child trafficking and sexual exploitation by implementing several action programmes which form part of a larger initiative by the programme Towards the Elimination of the worst forms of Child Labour (TECL) of ILO/IPEC to address child trafficking (CT) and the commercial sexual exploitation of children (CSEC), with a specific focus on prevention and educational rehabilitation. Among those action programmes are Assistance for Berea Home of Hope Centre’s activities on CSEC/CT, Assistance for New Life Centre’s activities on CSEC/CT, Assistance for Lerato House’s activities on CSEC/CT and Assistance for the Caring Ministry of Jesus’ activities on CSEC/CT. Basically, the centres aim to improve the life skills of children involved in or at risk of CSEC and CT and offer various services to ensure their care and reintegration. The programme strategies consist of building on existing services and to expand in the focus areas of prevention (outreach) and withdrawal. The Committee asks the Government to indicate how many children were removed from child trafficking and commercial sexual exploitation and rehabilitated as a result of the work of these centres.

2. Children used to commit crime. The Committee notes that TECL has designed a pilot programme for children used by adults and older children to commit crime as a worst form of child labour in South Africa (CUBAC). The strategy for addressing CUBAC includes mechanisms to ensure overall
ILO/IPEC strategies of prevention, withdrawal and rehabilitation. The programme focuses on reintegration, aimed at ensuring a child can return to his or her home and community sufficiently equipped with skills so as to not commit further offences. The Committee requests the Government to provide more information on the implementation of this programme and on the number of children who had committed crimes who were effectively reintegrated into their communities.

Clause (d). Identify and reach out to children at special risk. 1. Child victims/orphans of HIV/AIDS. In its previous comments, the Committee had noted that the CLPA provided for a number of measures to protect child victims of HIV/AIDS, such as: (a) research to determine the extent of child-headed households and AIDS orphans, and the effect that HIV/AIDS is likely to have on child labour; (b) training for fieldworkers for all home-based care programmes in order to recognize the problems children face in HIV/AIDS affected households; (c) providing for anti-retrovirals beyond mother-to-child prevention; and (d) reconsidering the education component of the equitable share formula for provinces, and the age-related provisions for exemption from school fees. The Committee notes that, according to the draft update for Phase 2 of the CLPA as approved on 14 June 2007 (CLPA-2, Draft 4.4), the second phase of the CLPA envisages to pursue the implementation of these measures. Furthermore, according to the same document, the Government has a large-scale programme for the provision of anti-retroviral treatment, which should provide such treatment for 300,000 individuals. Provision of anti-retrovirals is expected to reduce substantially the projected number of orphans. However, the programme does not, as of yet, reach all those in need of medication. Considering the severity of the HIV/AIDS pandemic in South Africa, the Committee strongly encourages the Government to pursue its efforts to identify and reach out to the child orphans of the disease. Noting the absence of information in the Government’s report in this regard, the Committee once again requests the Government to provide information on the impact of the measures on protecting child victims/orphans of HIV/AIDS from the worst forms of child labour.

2. Vulnerable children. In its previous comments, the Committee had noted several measures aimed at protecting vulnerable children, such as children living in a child-headed household and children in need of child support, foster care or social relief from distress. The Committee notes that the second phase of the CLPA further proposes to protect vulnerable children by setting up systems to identify and hand over children in need of assistance, by raising public awareness, providing training to labour inspectors on how to handle child labour issues and monitoring and evaluating the actions taken. Noting the absence of information on this point, the Committee once again requests the Government to provide information on any relevant impact made by the abovementioned measures on protecting vulnerable children from being engaged in the worst forms of child labour.

Parts IV and V of the report form. Following its previous comments, the Committee notes the Government’s information that the Department of Education is presently undertaking an investigation into the problem of learner absenteeism from schools and the reasons thereof, and that the study will be completed towards the end of 2007. The Committee requests the Government to supply a copy of this study once it is finalized.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or similar to slavery. 1. Trafficking of children. In its previous comments, the Committee had noted that there is no specific legislative provision to combat the trafficking of children. It had also noted that section 317 of the draft Children’s Bill specifically deals with child trafficking, stating that no person may traffic a child for the purposes of sexual exploitation and any exploitative labour practice, or the removal of body parts. The Committee notes the Government’s information that the Children’s Bill and Sexual Offences Bill are in the process of being adopted.

The Committee notes that the South Africa Law Commission (SALC) made the following recommendations with regard to the legislative measures to combat the worst forms of child labour: (a) a complete prohibition on the commercial sexual exploitation of children, including child prostitution, pornography and trafficking in children, shall be included in the new Sexual Offences Act; (b) anyone who offers or engages a child for commercial sexual exploitation, or who facilitates or receives consideration for the child’s commercial sexual exploitation, shall be guilty of an offence; (c) the trafficking in, or transporting of, children from their place of residence to another destination, whether within the country or abroad, constitutes commercial sexual exploitation and should therefore be an offence; (d) in order to combat sex tourism and other forms of sexual exploitation, effective national legislation with extraterritorial application is proposed; and (e) legal entities incorporated or doing business in South Africa will be prosecuted under the new Sexual Offences Act. The Committee hopes that the Children’s Bill and Sexual Offences Bill will take into consideration the recommendations of the SALC and requests the Government to provide a copy of these Bills as soon as they have been 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. Such a law would contravene Article 3(a) of the Convention. Noting that no information is contained in the Government’s report on this point, the Committee once again requests 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.

Clause (b). Use, procuring or offering of a child for prostitution. The Committee had previously noted that section 9 of the Sexual Offences Act of 1957, punishes any parent or guardian of a child under 18 who permits, procures or attempts to procure such child to have unlawful sexual intercourse or to commit any immoral or indecent act with any other person, or to frequent a brothel, or orders, permits or receives any consideration for the defilement, seduction or prostitution of such a child. It had also noted that section 50A(1) of the Child Care Act of 1983 punishes the involvement or participation in the commercial sexual exploitation of a child. The Committee had noted that the SALC had elaborated a new Sexual Offences Bill that would replace the Sexual Offences Act of 1957 and that section 11 of the Sexual Offences Bill prohibits and punishes child prostitution. The Committee notes the Government’s statement that the Committee will be advised and given a copy as soon as the Bill is adopted in totality. It also notes the Government’s information that the SALC, with regard to legislative measures to combat the worst forms of child labour, considered that the commercially sexually exploited child is a victim in need of care and not a criminal. Therefore, the SALC recommended the following shall constitute an offence: (a) sexual acts with a child for financial or other reward, as well as involvement in the commercial exploitation of a child; and (b) keeping a brothel for child prostitution. The Committee hopes that the new Sexual Offences Bill will be adopted shortly and requests the Government to inform it of any progress in this regard.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee had requested the Government to indicate which provisions, if any, prohibit the use, procuring or offering of a child for illicit activities. Noting that no information is contained in the Government’s report on this point, the Committee once again requests the Government to indicate the relevant provisions, if any, and any measures taken to secure the prohibition and elimination of illicit activities including children under the age of 18.

Article 3(d) and Article 4, paragraph 1. Prohibition and determination of hazardous work. The Committee had previously noted that section 43(2) of the Basic Conditions of Employment Act (BCEA), states that no person may employ a child (i.e. below 18 years) in employment that is inappropriate for a person of that age or that places at risk the child’s well-being, education, physical or mental health, or spiritual, moral or social development. The Committee had also noted that, under section 85 of the Mine Health and Safety Act of 1996, children under 18 years are not allowed to work underground in a mine. The Committee notes the Government’s information that the Department of Labour (DOL) is in the process of drafting regulations pertaining to children between the ages of 15 and 17 years. These regulations will be drafted in compliance with the Convention. It notes the Government’s statement that the terms of reference for the drafting were presented to the Employment Conditions Committee (ECC) in May 2005 and were consequently approved. These regulations will be drafted through a process of consultations, including the organizations of employers and workers concerned. It is envisaged that the consultations will be finalized in October/November 2005. The Committee reminds the Government that, by virtue of Article 3(d) of the Convention, children under 18 years of age, shall not undertake work which, by its nature and the circumstances in which it is carried out, is likely to harm their health, safety or morals. The Committee also recalls that Article 4, paragraph 1, of the Convention, provides that the types of work referred to under Article 3(d) shall be determined by national laws or regulations or the competent authority, after consultations with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). The Committee requests the Government to keep it informed on any progress towards the adoption of the regulations determining the types of hazardous work, which it trusts will be in line with the Convention. It requests the Government to provide a copy of these regulations as soon as they have been adopted.

Article 4, paragraph 2. Identification of hazardous work. The Committee had previously noted that a number of target groups or areas have been identified where action needs to be taken. It notes that, according to the CLAP, proposed measures for which the DOL is responsible include the identification of hazards faced by children aged 15-17 years. The Committee requests the Government to provide information on the implementation of the CLAP with regard to measures aimed at identifying types of hazardous work.

Article 5. Monitoring mechanisms. 1. Child Labour Intersectoral Group (CLIG). The Committee had previously noted that the CLIG, is engaged in a collaborative and intersectoral approach in the fight against child labour. The Committee notes the Government’s information that the national institutional framework is cascaded to the provincial, regional and local government levels and therefore the previous CLIG will now form focal points in alignment with the restructured child rights framework in provinces, regions and local government levels.

2. Labour Inspectorate. The Committee had previously noted that labour inspectors are the enforcement agents of the DOL and that complaints can be lodged at provincial offices and labour centres, with inspections conducted in affected sectors.

3. South African Police Service (SAPS). The Committee had previously noted that the SAPS is responsible for the investigation of alleged crimes, including the investigation and prosecution of those involved in child labour, and supporting the work of other departments requiring safety and security services (i.e. when accessing property to conduct inspections or to remove a child from abusive circumstances).

4. Office on the Rights of the Child (ORC). The Committee notes the Government’s information that the ORC in the presidency coordinates and provides an oversight and monitoring role on all activities embarked on by the government departments in terms of child protection and development.

5. The Child Labour Action Programme Implementation Committee (CLAPIC). The Committee notes the Government’s information that, in June 2003, the CLAPIC was formed in order to drive the process of finalizing the Child Labour Action Programme. It notes that the DOL is the secretariat of the CLAPIC. It also notes the Government’s information that members of CLAPIC include the Departments of Labour, National Treasury, Office on the Rights of the Child, Social Development, Education, Health, Youth Commission, and Agriculture. The role of the CLAPIC is to ensure that departments represented implement their action steps. The Committee notes the Government’s information that the CLAPIC will also guide and monitor the implementation of the CLAP.

The Committee asks the Government to continue providing information on the activities of the abovementioned monitoring mechanisms.

Article 6, paragraph 1. Programmes of action to eliminate the worst forms of child labour. Child Labour Action Programme. The Committee notes the Government’s information that in September 2003 the CLAP was finalized, in cooperation with ILO/IPEC, after an extensive consultation process with relevant stakeholders, the key government departments and social society. The Committee notes the Government’s information that some of the actions steps identified in the CLAP include programmes that departments are currently implementing, while some other programmes such as awareness raising and infrastructure development may require additional funding. The Committee notes the Government’s information that, in May 2005, the DOL appointed a service provider who will assist government departments with the prioritization of key action steps and indicate expenditure for the short, medium and long term. It notes the Government’s statement that, while the CLAP is on its way to the Cabinet, the costing exercise will be under way with an envisaged finalization date of December 2005. The Committee asks the Government to continue providing information on any progress with regard to the implementation of the CLAP.

Article 7, paragraph 1. Penalties. The Committee had previously noted that, due to the complex and multifaceted nature of child labour, an enforcement strategy was developed in 2001 to enhance provisions already contained in the BCEA. It had noted that this enforcement strategy emphasizes a multisectoral approach in dealing with child labour, involving key role players such as social development, the SAPS, health, education and justice. The Committee asks the Government to provide information on this enforcement strategy designed in 2001 and on any other programmes implemented under the CLAP regarding the enforcement of the provisions giving effect to the Convention.

The Committee notes that section 93 of the BCEA provides that any magistrate’s court has jurisdiction to impose a penalty of imprisonment for an offence provided for in this Act, including the prohibition of employing children in any type of hazardous work and the prohibition of forced labour. It notes that section 9 of the Sexual Offences Act and section 50A(1) of the Child Care Act respectively punish with penalties of imprisonment: the inciting or procuring by any parent or guardian of a child to prostitution, and the participation or involvement in the commercial sexual exploitation of a child.

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. The Committee notes the Government’s information that the SALC, besides a number of legislative measures to combat the commercial sexual exploitation of children, proposed certain auxiliary measures to this end, such as: (a) the withdrawal of operating licenses of any travel agent or bureau found to have organized sex tours in South Africa or abroad; (b) the deportation after serving their sentence of all foreign nationals for committing a sexual offence in South Africa; and (c) the withdrawal of the passport of any South African citizen convicted of a sexual offence while abroad. The Committee also notes that under the CLAP the following measures are envisaged to prevent child trafficking: (a) the issuing of a directive to all prosecutors which underlines that trafficking should be viewed seriously, prosecuted effectively and vigorously and added to the existing list of serious crimes; (b) responsibility of the DOL for monitoring and inspecting instances of employment-related trafficking; (c) regular contact with relevant stakeholders in other countries of the region dealing with trafficking; (d) adoption of regional and bilateral agreements aimed at preventing trafficking; and (e) providing for training on the prevention of trafficking. The Committee asks the Government to provide information on the implementation of the abovementioned measures under the CLAP aimed at preventing and combating the trafficking of children under 18.

2. Ensuring free basic education. The Committee notes the Government’s information that the South African Schools Act states that the admission of a child to public school cannot be refused on the basis, among others, of inability to afford fees. The Committee also notes that the CLAP provides a number of educational measures aimed at preventing children from being engaged in the worst forms of child labour, such as: (a) monitoring attendance at school; (b) providing for awareness raising and enforcement of the national school fee policy, in respect of exemptions for poorer families; (c) ensuring flexibility in school hours; and (d) providing for adequate and safe transport for children living far from schools. Considering that education contributes to preventing children from being engaged in the worst forms of child labour, the Committee asks the Government to continue providing information on the measures aimed at improving their access to free basic education and preventing them from being engaged in the worst forms of child labour. It also asks the Government to provide information on the primary education enrolment rate and the dropout rate, as well as the impact of the CLAP on improving access to free basic education.

Clause (b). Providing the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour. Child victims of trafficking and involved in illicit activities. The Committee notes with interest the Government’s information that the SALC, in recommending a number of new provisions punishing prostitution and commercial sexual exploitation of children, stated that the commercially sexually exploited child is a victim in need of care and protection and not a criminal. The Committee notes that, under the CLAP, a number of measures have been envisaged in order to identify and rehabilitate child victims of trafficking and children involved in illicit activities, particularly in the trafficking of drugs. It notes that, particularly with regard to trafficking, a strategy on the repatriation of victims of trafficking is envisaged, including the provision of appropriate reception and care centres. The Committee asks the Government to continue providing information on the implementation of the measures contained in the CLAP aimed at providing for the rehabilitation and social integration of child victims of trafficking and children involved in illicit activities, such as the trafficking of drugs.

Clause (d). Identify and reach out to children at special risk. 1. Child victims/orphans of HIV/AIDS. The Committee notes that, according to the CLAP, a recent study by the University of Cape Town estimates that the number of children who will have lost one or both parents to AIDS will peak in South Africa around 2014-15, with 5.7 million children having lost one or both parents. The percentage of orphans is expected to increase to between 9 and 12 per cent of the child population by 2015. The Committee notes that the CLAP provides for a number of measures to protect child victims of HIV/AIDS, such as: (a) research to determine the extent of child-headed households and AIDS orphans, and the effect that HIV/AIDS is likely to have on child labour; (b) training for fieldworkers for all home-based care programmes in order to recognize the problems children face in HIV/AIDS affected households; (c) providing for anti-retrovirals beyond mother-to child prevention; and (d) reconsidering the education component of the equitable share formula for provinces, and the age-related provisions for exemption from school fees. The Committee asks the Government to continue providing information on the impact of the abovementioned measures on protecting child victims/orphans of HIV/AIDS from the worst forms of child labour.

2. Vulnerable children. The Committee notes the Government’s information that in each school the principal or educator will identify a child-headed household and must contact the district education office informing them of any vulnerable children. This office will then contact the nearest social welfare department who will investigate the next of kin. It also notes the Government’s indication that the Department of Social Welfare and Population Development is in charge of granting child support, foster care, social relief from distress, for any child who applies for this service. The Committee notes the Government’s indication that the Department of Health provides free medical care for children under 5 years as well as for older age groups who are "in need". Moreover, a Social Assistance Bill was drafted stating that a child of 16 years can apply directly for a social assistance grant. Primary health care services offer "youth friendly service" that would be of benefit to the head of child-headed households. The Committee notes the Government’s information that, in order to address the plight of children involved in the worst forms of child labour, the Child Rights Project identified problems and embarked on a workshop with NGOs in Pietermaritzburg and Durban to find solutions to these problems. The Committee requests the Government to continue providing information on any concrete measures aimed at protecting vulnerable children from the worst forms of child labour. It also asks the Government to provide further information on the results attained by the Child Rights Project and any relevant impact on protecting vulnerable children from being engaged in the worst forms of child labour.

Article 8. International cooperation. The Committee notes the Government’s information that in the South African Customs Union, comprehensive strategies such as the CLAP were initiated at different stages in the development process. In this framework, the CLAP will thus serve as a vehicle for information sharing and an exchange about best practices. The Committee asks the Government to continue providing information on the steps taken to assist one another in giving effect to the Convention.

Parts IV and V of the report form. The Committee notes the Government’s information that in 2002 two cases were reported and investigated regarding the employment of children in farming, planting and harvesting in Limpompo, but there were no convictions. In 2003, a number of employment agencies in the Western Cape were found to be employing under-age children against their will. Inspections were conducted and the agencies were closed down. In 2004, the owner of a farm in the Tosca area was found guilty and fined Rands 15,000 in the Vryburg Magistrates Court for using children as labourers. Furthermore, in 2004 the Minister of Labour ordered that farm blitz be conducted around Tzaneen in Limpompo following reports of child labour in the area. The Committee notes the Government’s information that the Family, Violence, Child Abuse and Sexual Offences Unit of the SAPS in Gauteng has enhanced its analysis capacity in all its 11 units and this led to 25 serial offenders operating in Gauteng being identified. These units have also reportedly assisted a provincial task team in an operation to clamp down on child prostitution in Gauteng. In February 2005, 76 arrests were reported and 42 children removed from the streets in Gauteng. The operation continues. The Committee had previously noted that last Survey of Activities of Young People (SAYP) was conducted by Statistics South Africa with ILO/IPEC support in 1999. It notes that, according to the CLAP, a follow-up to the SAYP should be done as soon as possible to assess the changed situation, especially in the context of the HIV/AIDS pandemic, and to assist with monitoring and evaluation.

The Committee asks the Government to continue providing information on inspection reports, studies and inquiries and on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penalties imposed.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information supplied by the Government in its first and second reports. The Committee would like to draw the Government’s attention to the following points.

Article 1 of the Convention. Immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour. The Committee notes that, as stated by the Government in its report, the Department of Labour (DOL) is in the process of finalizing a Child Labour Action Programme (CLAP) that entrenches a multisectoral approach. The Committee notes that an extensive consultation process was conducted from January to July 2003 with relevant stakeholders in the sphere of child labour. The Committee also notes that the CLAP was to be tabled before Cabinet by the Minister of Labour for debate and approval between October and November 2003. The Committee notes with interest that, before the end of 2003, South Africa, in partnership with the ILO, will pilot a time-bound programme to address the worst forms of child labour. The Committee requests the Government to continue providing information on these measures and on the results achieved.

Article 3. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Trafficking of children. The Committee notes that there is no specific legislative provision to combat the trafficking of children. It also notes that recent research by the International Organization for Migration suggests that South Africa serves as a source, destination and conduit for trafficked children involved in sexual exploitation and domestic work. Research by the United Nations also illustrates that there have been a few cases of trafficking of children from neighbouring states, in particular from Mozambique. The Committee notes that section 317 of the draft Children’s Bill specifically deals with child trafficking, stating that no person may traffic a child for the purposes of commercial sexual exploitation, any exploitative labour practice, or the removal of body parts. The Committee expresses the firm hope that the draft Children’s Bill will be adopted shortly, and requests the Government to provide a copy thereof it as soon as it is adopted.

2. Debt bondage, serfdom, forced or compulsory labour. The Committee notes that article 13 of the Constitution provides that no one may be subjected to slavery, servitude or forced labour, and that article 28(1) states that every child has the right to be protected from exploitative labour practices. It also notes with interest that section 48(1) of the Basic Conditions Employment Act states that, subject to the Constitution, all forced labour is prohibited, and that section 48(2) provides that no person may for his or her own benefit, or for the benefit of someone else, cause, demand or impose forced labour in contravention of subsection (1). The Committee notes however the information provided by the Government in its report, according to which there have been reported cases of forced labour in some provinces during harvesting periods, and that farmers collude with local chiefs and transport children to go and work on farms, at times when school is in session. The Committee also notes that the DOL, the South African Human Rights Commission and the South African police force were investigating the activities of employment agencies recruiting young women from rural areas, keeping them in confinement and placing them under very restrictive conditions. The Committee requests the Government to provide further information on the results of the abovementioned investigations, and on the practical application of the legislative provisions on this point.

3. Forced or compulsory recruitment for use in armed conflict. The Committee notes that article 28(1)(i) of the Constitution states that every child has the right not to be used directly in armed conflict, and to be protected in times of armed conflict. The Committee nonetheless notes that, pursuant to article 37(4), in situations where a state of emergency is declared, some rights may be derogated from. A state of emergency may be declared when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency. The Committee notes that when a state of emergency has been declared, some specific rights cannot be derogated from to the extent that they are defined in "the table of non-derogable rights", contained in article 37(5). It also notes that article 28(1)(i) is included in this table, but applies only to children of 15 years and younger. The Committee therefore observes that, in time of armed conflict, children of between 15 and 18 years could be subject to forced recruitment for deployment in armed conflict, which contravenes Article 3(a) of the Convention. The Committee therefore requests the Government to indicate any measures taken or envisaged to comply with the Convention on this point.

Clause (b). The use, procuring or offering of a child for prostitution. The Committee notes with interest the information provided by the Government in its report, according to which South Africa has ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography on 1 July 2003. The Committee notes that section 9 of the Sexual Offences Act, 1957 (SOA), states that any parent or guardian of a child (under 18) who permits, procures or attempts to procure such child to have unlawful sexual intercourse or to commit any immoral or indecent act, with any person other than the procurer, allows his or her child to reside in or frequent a brothel, or orders, permits, or in any way assists in bringing about, or receives any consideration for, the defilement, seduction or prostitution of such child is guilty of an offence. The Committee also notes that section 50A(1) of the Child Care Act, 1983 provides that any person who participates or is involved in the commercial sexual exploitation of a child shall be guilty of an offence, and section 50A(2) states that any person who is owner, lessor, manager or occupier of the property on which the commercial sexual exploitation of a child occurs and who, within a reasonable time of gaining information of such occurrence, fails to report this to the police shall be guilty of an offence. The Committee notes that the South African Law Commission has elaborated a new Sexual Offences Bill that will replace the Sexual Offences Act of 1957, and that section 11 of this Bill prohibits and sanctions in particular child prostitution. The Committee hopes that this Bill will be adopted soon. It requests the Government to keep it informed of progress made towards the adoption of this Bill, and to supply a copy of it as soon as it is adopted.

The Committee also notes the information provided by the Government in its report, according to which, due to poverty, the HIV/AIDS pandemic and tourism, many children are engaged in sexual commercial exploitation for survival. It also notes that there are no conclusive statistics in terms of the exact number of children who are involved in these practices. It requests the Government to continue providing information on the application in practice of the legislative provisions prohibiting this worst form of child labour.

Clause (c). The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that the Government’s report states that drug dealers and housebreaking gangs often use underage children because they are unlikely to be prosecuted due to their age, but that there are no statistics available. The Committee also notes that the South African Law Commission (SALC) has released a draft Child Justice Bill, which suggests a change to the way in which drug dealing can be dealt with. It emphasizes the need to target syndicates and adults who are usually behind children’s drug-dealing activities. The Government report, however, does not provide any information on specific legislative measures on this point. The Committee requests the Government to indicate which provisions, if any, prohibit the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, as defined in the relevant international treaties, and to indicate the measures taken to secure the prohibition and elimination of such illicit activities involving children under the age of 18.

Clause (d). Work which by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. The Committee notes with interest that section 43(2) of the Basic Conditions of Employment Act (BCEA) states that no person may employ a child (i.e. below 18 years) in employment that is inappropriate for a person of that age or that places at risk the child’s well-being, education, physical or mental health, or spiritual, moral or social development. The Committee nonetheless notes that the BCEA does not apply to workers on vessels at sea where the Merchant Shipping Act of 1951 is applicable (section 3(3)), and requests the Government to indicate which legal provision protects children under 18 years from work on board ships which is likely to harm their health, safety or morals.

Article 4, paragraph 1. Determination of types of hazardous work. The Committee notes with interest that, under section 85 of the Mine and Health and Safety Act, 1996, no person may cause or permit an employee under the age of 18 years to work underground in a mine and no employee under the age of 18 years may work underground in a mine.

The Committee also notes that, according to section 44 of the BCEA, the Minister, on the advice of the Employment Conditions Commission, may make regulations to prohibit or place conditions on the employment of children who are at least 15 years of age and no longer subject to compulsory education in terms of any law. The Government indicates in its report that some regulations will be developed for children between the ages of 15 and 17, which will determine the nature of work that this category of children may perform, taking into account occupational health and safety factors. The Committee recalls that Article 4, paragraph 1, of the Convention provides that the types of work referred to under Article 3(d) shall be determined by national laws or regulations or the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). The Committee draws the Government’s attention to Paragraph 3 of Recommendation No. 190, which provides for a list of hazardous work to which consideration should be given, such as: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; (e) work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. The Committee trusts that due consideration will be given to Paragraph 3 of Recommendation No. 190 during the elaboration of the abovementioned regulations. The Committee asks the Government to inform it of developments regarding the adoption of these regulations as well as consultations that are held thereon with the organizations of employers and workers concerned.

Paragraph 2. Identification of hazardous work. The government report states that, according to the results of the Survey on the Activities of Young Persons (SAYP), 1999, 36 per cent of children in South Africa are engaged in the following work-related activities: long hours fetching wood and water; agriculture (commercial and subsistence agriculture); children who perform unpaid domestic work inside their homes; unpaid work in family businesses; paid domestic work outside the home; school labour. The Committee notes the Government’s statement that, arising out of the survey results, a number of target groups or areas have been identified where action needs to be taken, and that will be detailed in a programme of action. The Committee requests the Government to provide information on the target groups or areas that have been identified where action needs to be taken, as outlined in the programme of action.

Paragraph 3. Examination and periodical revision of the types of hazardous work. The Committee notes that in its report the Government makes no mention of any measures designed to ensure that the abovementioned regulations should be periodically examined and revised. The Committee recalls that Article 4, paragraph 3, of the Convention provides that the list of the types of work determined under paragraph 1 of this Article shall be periodically examined and revised as necessary, in consultation with the organizations of employers and workers concerned. The Committee requests the Government to indicate the measures taken or envisaged to examine and revise periodically the list of the types of work.

Article 5.  Appropriate mechanisms to monitor the implementation of the provisions giving effect to the Convention. The Committee notes that the Government’s report refers to the Child Labour Intersectoral Group (CLIG), a forum formed in 1998 after a series of consultative meetings convened by the DOL. Its aim is to engage in a collaborative and intersectoral approach in the fight against child labour, and its activities are coordinated by the DOL, also acting as the secretariat. The Government states in its report that the CLIG has expanded and it has formed provincial structures whose main focus is to develop and implement programmes to address child labour at the grass-roots level. The Committee requests the Government to provide information on the work of the Child Labour Intersectoral Group.

Article 6, paragraph 1. Programmes of action to eliminate as a priority the worst forms of child labour. The Committee notes the information provided by the Government in its report, according to which the National Programme of Action (NPA), coordinated from the Office of the President of the Republic of South Africa, is the instrument by which the commitments to combat child labour are carried out. The Committee also notes the information, according to which, following the Survey on the Activities of Young Persons in 1999, South Africa embarked on the development of the CLAP. The process, as reported in the Government’s report, is as follows: information gathering from 1996 to 2000; policy analysis of all available information from 2000 to 2001; consultations with key and relevant stakeholders nationally undertaken from January to April 2003; consultations with key government departments. The Committee notes the Government’s statement that this will entail a process where the Minister of Labour will table the CLAP before Cabinet for debate and approval. It was envisaged that this would take place between October and November 2003. The Government indicates that the implementation of the CLAP will entail awareness raising, training of inspectors on the CLAP in alignment with the enforcement policy strategy, strengthening of the CLIG structures and the management and monitoring of time-bound programmes. The Committee also notes with interest that in 1998 the Department of Labour signed a Memorandum of Understanding with the ILO/IPEC. The Committee requests the Government to continue providing information on the implementation of these programmes.

Article 7, paragraph 1. Necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention. The Committee notes the information provided by the Government, according to which, due to the complex and multifaceted nature of child labour, an enforcement strategy was developed in 2001 to enhance provisions already contained in the BCEA. This enforcement strategy emphasizes a multisectoral approach in dealing with child labour, involving key role players such as social development, the South African police service, health, education and justice. The Committee also notes that in its first report the Government states that labour inspectors are the enforcement agents of the DOL, and that complaints can be lodged at provincial offices and labour centres, with inspections conducted in affected sectors. Enforcement procedures are then undertaken in terms of the Criminal Procedures Act. During inspections, inspectors are encouraged to be vigilant and look out for children on work premises and to interview other employees in order to establish if children are employed. The onus rests upon the employer to verify the ages of children in his employment. The Committee invites the Government to continue providing information on this point.

Paragraph 2. Effective and time-bound measures.  Clause (a). Prevent the engagement of children in the worst forms of child labour. The Committee notes the Government’s statement in its report that the multisectoral strategy contained in the proposed CLAP will prevent children from engaging in the worst forms of child labour.

Clause (b). Direct assistance for the removal of children from the worst forms of child labour. The Committee notes the information provided by the Government in its report, according to which this is the responsibility of the Department of Social Development.

Clause (c). Access to free, basic education. The Committee notes that the Government’s report states that, in relation to taking into account the importance of education in eliminating child labour, this is the responsibility of the Department of Education. The Committee also notes with interest that South Africa’s educational system provides free and compulsory education for every child up to the age of 15 years and completion of nine years of study. Children start primary education in the year they reach 7 years; enrolment rates in primary schools are high and there is very little gender disparity.

Clause (d). Identify and reach out to children at special risk. The Committee notes that the Department of Education’s curriculum includes a focus on child rights issues and abuse as part of the life-orientation learning area. Educators are trained on how to recognize signs and how to intervene in suspected cases of abuse.

The Committee requests the Government to provide further information on the activities and levels of coordination of the Department of Labour, the Department of Education and the Department of Social Welfare in eliminating child labour through education, and on any specific measures taken by these departments to give effect to Article 7(2)(a)-(e) to prevent the potential occurrence of the worst forms of child labour and assist the removal and rehabilitation of children from the worst forms of child labour. The Committee also requests the Government to indicate the measures taken to take into account the special situation of girls, according to Article 7(2)(e).

Paragraph 3. Designation of the competent authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes the information provided by the Government in its report on the following role players in the development of the CLAP: the DOL is the lead department and is responsible for the enforcement of the BCEA; the National Department of Social Development is a key department regarding a number of issues relevant to the CLAP, including commercial sexual exploitation of children, trafficking of children and interventions where children may be removed from detrimental situations. The Department of Justice and Constitutional Development is responsible for legislation relevant to child labour and the CLAP, including commercial sexual exploitation of children, child trafficking (including bilateral arrangements with countries from where, or to where, children are trafficked), the training of judicial officers and diversion programmes for children used by others in committing crimes (e.g. drug trade).

The Department of Provincial and Local Government (DPLG) is responsible for the Municipal Infrastructure Grant, with the assistance of the departments responsible for policy on provisions of basic water and electricity. This is relevant because the highest number of children work long hours collecting water and fuel. A target of the CLAP is the provision of basic water and electricity services in areas where children do this type of work. The Department of Education (DOE) is involved in identifying children needing assistance, steps to retain children at school, school nutrition programmes, early childhood development programmes, life skills training relating to child labour, addressing problems of farm schools, addressing school maintenance work, etc. Finally, the SAPS is responsible for the investigation of alleged crimes, including investigations and prosecution of those involved in child labour, and supporting the work of other departments requiring safety and security services (e.g. when accessing property to conduct inspections or to remove a child from abusive circumstances).

The Office of the Rights of the Child coordinates programmes involving various organs of the State through the NPA.

Article 8. International cooperation and/or assistance. The Committee notes the information provided by the Government in its report, according to which the South African Customs Union member States (Botswana, Lesotho, Namibia and Swaziland (BLNS)), at the initiative of the ILO, are involved in consultations to develop strategies to address the worst forms of child labour in southern Africa. The Committee requests the Government to continue providing information on the steps taken to assist one another in giving effect to the provisions of this Convention.

Part III of the report form. The Committee notes the statement of the Government in its report that the Ceres Magistrates Court successfully prosecuted a farmer who had employed an 11-year-old girl who was subsequently injured in the course of her duties. The Committee notes that the farmer was found guilty under section 43 of the BCEA and was sentenced to a maximum fine of R25,000, 10,000 of which was suspended for five years on the condition that he does not contravene this law again during this period. The Committee requests the Government to continue providing information on decisions of tribunals involving questions of principle relating to the application of the Convention.

Part IV of the report form. The Committee notes with interest that the SAYP was conducted in June and July 1999 by Statistics South Africa with IPEC support. This very detailed survey has shown that more than 2 million children between ages of 5 and 14 years, and another 980,000 children between the ages of 15 and 17, are in paid labour. The majority of these children work in subsistence farming, trade, commercial agriculture and services. The Government indicates in its report that, following the SAYP, an enforcement policy has been developed to guide inspectors on what steps to follow when coming across a child labour case and what measures to follow. The Committee requests the Government to continue providing information on the manner in which the Convention is applied, to indicate any practical difficulties encountered in the application of the Convention or any factors which may have prevented or delayed action against the worst forms of child labour. The Committee invites the Government, as South Africa is receiving assistance under ILO technical cooperation projects with IPEC, to indicate the measures taken accordingly.

Part V of the report form. The Committee requests the Government to supply copies or extracts from official documents including inspection reports, studies and inquiries, and to continue providing information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, and penal sanctions applied. To the extent possible, all information provided should be disaggregated by sex.