Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (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.