Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (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.