Solicitud directa (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (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.