Child Labour Republic of South Africa

In terms of the Child Care Act, 1983 (Act 74/83) as amended by Section 52A of the Child Care Amendment Act, 1991 (Act 86/91), the Department of Social Services and Population Development is responsible for aspects pertaining to the prohibition of employment of certain children. Since 1991, this Act regulated basic conditions of employment of children and prohibited employment of children under 15, but was not applied to all levels of the economy, for example agriculture or domestic work. With the promulgation of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997) this issue was regulated further in Sections 43 and 44 of the said Act and the Department of Labour is now also responsible for matters pertaining to the prohibition of employment of children and the employment of children 15 years or older. It has become imperative for social workers to note the changes in steps to enforce the law on child labour. They should always be prepared to assist in cases of child labour. An attempt is made hereunder to define issues related to child labour which will assist social workers to understand child labour in order for them to make a meaningful contribution to eradicate child abuse where children are involved in work. DEFINITIONS: CHILD LABOUR CHILD CHILD ABUSE CHILD LABOUR a person up to 18 years occurs when any non-accidental action or failure to act, adversely affects the physical, social, emotional or mental well-being of a child work by a child under 18 years, which is exploitive, hazardous, otherwise inappropriate for his or her age, detrimental to his or her schooling, or detrimental to his or her social-, physical-, mental-, spiritual- or moral development a failure by those responsible for the child to meet his or her essential basic needs the procurement of a child to perform sexual acts for a financial or other reward payable to the child, the parents or guardians of the child, the procurer, or any other person a pattern of physically destructive behaviour involving the rejecting, isolating, terrorising and or corrupting of a child, or the exposure of a child to traumatic events including family or community violence intentional acts which result in or are likely to result in physical injury to a child any sexual act between a child and a person who is more powerful in terms of age, assertiveness or physical strength,

CHILD NEGLECT COMMERCIAL SEXUAL EXPLOITATION EMOTIONAL ABUSE

PHYSICAL ABUSE SEXUAL ABUSE

VERBAL ABUSE

which is for the gratification of the more powerful person and it includes sexual acts which do not involve direct physical contact, for example exhibitionism and exposure of children to pornography or their involvement in its production is that derogatory speech, including manipulation, which results in a lack of dignity, self worth and self esteem in the child

(As adapted from a draft Memorandum of the Department of Social Services and Population Development.)

FACTORS THAT INFLUENCE WORK DONE BY CHILDREN Together with the issues mentioned in the definitions, consideration should be given to the effect of work done on a child. The following factors are significant: Work should be age appropriate (meaning that very young children should not work at all). The morality of work is affected by what the law says. To a certain extent the law reflects the values of the society and consequently it is also affected by it. It depends on whether: the childrens education is detrimentally affected, their social-, physical- and mental development is detrimentally affected, they have sufficient time to play and for other activities, the children do the work voluntarily, or are forced to do it, the work is done under proper and sympathetic adult supervision, they benefit from the work, eg. as a form of training, the working conditions are fair, eg. timing is appropriate or supervision is adequate, the family/child has other options or other support systems.

LEGAL AND OTHER PROVISIONS 1. International legal provisions Our law in South Africa must comply with the terms of international conventions when ratified. Our law can give broader protection than this to children. However, it may not protect children to a lesser degree than that set out in these provisions.

Even in cases where South Africa has not ratified certain international conventions, these do recommend the minimum protection that we need to give, for example, when a court interprets the Bill of Rights, which forms part of South Africas Constitution, it must consider international law. 1.1 International Labour Organisation: Minimum Age Convention This Convention requires that countries who ratify the Convention should pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. This convention states that laws may permit employment of persons 13 to 15 years of age in light work that is unlikely to be harmful to their health or development and that will not prejudice their attendance at school or vocational programmes. However, the minimum age for someone carrying out work that is likely to jeopardise the health, safety or morals of a young person shall not be less than 18 years. 1.2 United Nations: Convention on the rights of the child Article 32 States Parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the childs education, or to be harmful to the childs health or physical, mental, spiritual, moral or social development. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide a minimum age or minimum ages to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. 1.3 Other conventions Other issues important to consider are: Night work Hazardous employment Maximum weight Medical examinations These issues are included in some of the following conventions: World Declaration and Plan of Action for Children Convention Relating to the Status of Refugees The Hague Convention on the Civil Aspects of International Child Abduction

African Charter on the Rights and Welfare of the Child Worst Forms of Child Labour Convention, 1999 ILO Declaration on Fundamental Principles and Right at Work 2. 2.1 South African legal provisions The Constitution Section 28 (1) Every child has the right ... (b) (c) (d) (e) (f) to family care or parental care, or to appropriate alternative care, or to appropriate alternative care when removed from the family environment; to basic nutrition, shelter, basic health care services and social services; to be protected from maltreatment, neglect, abuse or degradation; to be protected from exploitive labour practises; not to be required or permitted to perform work or provide services that(i) are inappropriate for a person of that childs age; or (ii) place at risk the childs well-being, education, physical, or mental health or spiritual, moral or social development.

... ... (i) (2) (3) 2.2 not to be used directly in armed conflict, and to be protected in times of armed conflict;

A childs best interests are of paramount importance in every matter concerning the child. In this Section child means a person under the age of 18 years.

The Basic Conditions of Employment Act Section 43 - Prohibition of employment of children: (1) No person may employ a child(a) who is under 15 years of age; or (b) who is under the minimum school-leaving age in terms of any law, if this is 15 or older. (2) No person may employ a child in employment(a) that is inappropriate for a person of that age;

(b) (3)

that places at risk the childs well-being, education, physical or mental health, or spiritual, moral or social development.

A person who employs a child in contravention of subsections (1) or (2) commits an offence.

Section 44 - Employment of children of 15 years or older (1) Subject to Section 43(2), the Minister may, on the advice of the Commission, 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 schooling in terms of any law. A person who employs a child in contravention of subsection (1) commits an offence.

(2) 2.3

The Child Care Act 52A. (2) (1) Subject to the provisions of this Act or any other law, no person may employ or provide work to any child under the age of 15 years. The Minister may, on the conditions determined by him (a) by notice in the Gazette exclude any employment or work from the provisions of subsection (1); and (b) grant any particular person, or persons generally, exemption from the provisions of subsection (1). An exemption under subsection (2)(b) shall (a) in the case of the exemption of a particular person be granted by issuing to such person a certificate of exemption in which his name and the conditions of the exemption and the name of the child or a description of the category of children with respect to whom exemption is granted are specified; (b) in the case of the exemption of persons generally, be granted by publication in the Gazette of a notice in which such persons are described and the conditions of the exemption and a description of the category of children with respect to whom exemption is granted are specified. A certificate of exemption contemplated in subsection (3)(a) and a notice contemplated in subsection (3)(b) may at any time be amended or withdrawn by the Minister. Any person who contravenes any provision of this section shall be guilty of an offence.

(3)

(4) (5)

Elements of child labour covered in sections 14(4) and 50 of the Act are work amounting to the ill-treatment of a child, for example requiring the child to do excessive chores at home, and where a child has to work because a parent does not maintain the child or has abandoned the child.

The prostitution, seduction or abduction of the child, or commissioning by the child of immoral acts, with the participation of the parent or person having the custody of the child consequently also contains elements of child labour. Section 52(A) of the Act is a left over from the time when the then Department of Welfare was primarily responsible for child labour issues. Members of the multi-disciplinary team can be authorised to assist with the execution of functions mentioned above and as prescribed in the Child Care Act, 1983 (See paragraph VI AN APPROACH TO ENFORCEMENT below). 2.4 The South African Schools Act Parents must ensure that their children attend school from the first day of the year that they turn seven until the last day of the year in which they turn 15 or complete the ninth grade, whichever occur first. Members of the multi-disciplinary team can assist the Department of Education to enforce the requirements in the Act as follows: Informal steps could be taken to ensure the child attends school. Steps can be initiated in cooperation with the relevant school authorities and head master to ensure school attendance. Once the matter has been reported, the education department is responsible for ensuring the childs non-attendance is investigated and appropriate steps taken. If a charge against a parent or guardian has been laid regarding nonattendance, a multi-disciplinary team must investigate and decide whether to prosecute or not. 2.5 The Sexual Offences Act The commercial sexual exploitation of children is one of the worst forms of child labour. The following are criminal offences regarding children that are the responsibility of the South African Police Services (Family Violence-Sexual Offences-Child Protection Units = FCS-Units): prostitution statutory rape - sexual intercourse with a girl under 16 immoral or indecent acts with a girl or boy under 19 or soliciting or enticing such a child to do such an act statutory seduction means taking a person under 21 out of the custody and against the will of his or her parent to have unlawful intercourse procuring or attempting to procure any female to have unlawful intercourse, to join a brothel, to become a prostitute

applying a drug to a female or causing her to take an intoxicating liquor to have unlawful intercourse with her detaining a female against her will for unlawful intercourse pimping allowing a female under 16 to stay in a brothel for purposes of prostitution, whether it is with her consent or not allowing a female over 16 but under 21 to stay in a brothel for purposes of prostitution, even if it is with her consent, where she is detained there against the will of the parent who has lawful charge of her 2.6 The Prevention of Family Violence Act Section 4 - Obligation to report the ill-treatment of children Any person who examines, treats, attends to, advises, instructs or cares for any child in circumstances that ought to cause the reasonable suspicion that such child has been ill-treated, or suffers from any injury the probable cause of which was deliberate, shall immediately report such circumstances(a) (b) to a police official; or to a commissioner of child welfare or a social worker referred to in section 1 of the Child Care Act, 1983.

This will lead to an investigation and or steps in accordance with the requirements in chapter 3 of the Child Care Act, 1983. 2.7 Fund Raising Acts The Nonprofit Organisations Act, 1997 amended the Fund Raising Act that used to regulate the collection of contributions from the public. Lately, the uncontrolled collection of contributions resulted in the phenomenon where begging has become a public nuisance and a serious public concern - especially the involvement of children in these activities. Where begging involves the direct or indirect employment of children to collect contributions, in cash or in kind, from the public it is regarded as a form of abuse, because it exposes the child to stunted growth and the dangers of related criminal activities. Some of the activities related to the collection of contributions in public could be regulated by the local authorities, but it is agreed that children should be dealt with in terms of legislation specifically applicable to them. Begging by children, whether it is for them or somebody else, should be discouraged whereas steps to reintroduce legal protection as were provided in the Fund Raising Act should be instituted. 2.8 Other laws

The Criminal Law Children involved in certain criminal activities fall within the broad category of the concept of child labour: child thieves drug sellers children employed in paramilitary groups children employed in child pornography rings.

Employment Equity Act, read with the Labour Relations Act Issues of discrimination are regulated in the above-mentioned Acts (eg. discrimination based on age and where children are being paid less than adults for the same quality and length of work).

Labour Relations Act It is the right of all employees to join unions, challenge unfair dismissals and to strike for better conditions.

Occupational Health and Safety Act Even if they are not working, persons (including children) have the right to be protected at work and in connection with the use of certain plants and machinery.

Compensation for Occupational Injuries and Diseases Act Children have the same rights as others to compensation for disablement caused by occupational injuries or diseases sustained or contracted during their employment, or for death resulting from such injuries or diseases.

Unemployment Insurance Act A child who has been employed, and fell within the definition of contributor in this Act can claim unemployment benefits, to an amount as determined in accordance with prescribed rules, if he or she is unemployed (or a girl is having a baby), and has worked as an employee for at least 13 weeks in the last year.

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