Sexual offences: pornography and children

The Children’s Act

3.124 The Children's Act governs all the laws relating to the care and protection of children. It defines the responsibilities and rights of parents and gives practical effect to certain of the fundamental rights enjoyed by children under section 28 of the Constitution.

3.125 The Children’s Act does not define “pornography” or “child pornography”. However it includes the trafficking of or procurement of a child to perform sexual activities for financial or other reward, including pornography under the definition of “commercial sexual exploitation” and the “using a child in or deliberately exposing a child to sexual activities or pornography” as “sexual abuse”. In turn “sexual abuse” and “exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally” is part of the overarching definition of “abuse”. Such a child may be found to be in need of care in terms of section 150 of the Children’s Act. The relevant definitions are as follows:
“(1) In this Act, unless the context indicates otherwise-

'abuse', in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes-

(a) assaulting a child or inflicting any other form of deliberate injury to a child;

(b) sexually abusing a child or allowing a child to be sexually abused;

(c) bullying by another child;

(d) a labour practice that exploits a child; or

(e) exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally;
“commercial sexual exploitation”, in relation to a child, means—

(a) the procurement of a child to perform sexual activities for financial or

other reward, including acts of prostitution or pornography, irrespective of

whether that reward is claimed by, payable to or shared with the procurer,

the child, the parent or care-giver of the child, or any other person; or

(b) trafficking in a child for use in sexual activities, including prostitution or

pornography;
'exploitation', in relation to a child, includes-

(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;

(e) child labour prohibited in terms of section 141; and

(f) the removal of body parts;
'sexual abuse', in relation to a child, means-

(a) sexually molesting or assaulting a child or allowing a child to be sexually molested or assaulted;

(b) encouraging, inducing or forcing a child to be used for the sexual gratification of another person;

(c) using a child in or deliberately exposing a child to sexual activities or pornography; or

(d) procuring or allowing a child to be procured for commercial sexual exploitation or in any way participating or assisting in the commercial sexual exploitation of a child;

'trafficking', in relation to a child-

(a) means the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of the Republic-

(i) by any means, including the use of threat, force or other forms of coercion, abduction, fraud, deception, abuse of power or the giving or receiving of payments or benefits to achieve the consent of a person having control of a child; or

(ii) due to a position of vulnerability,

for the purpose of exploitation; and

(b) includes the adoption of a child facilitated or secured through illegal means;” and
3.126 Section 305(5) provides that:
A person who is the owner, lessor, manager, tenant or occupier of any premises on which the commercial sexual exploitation of a child has occurred is guilty of an offence if that person, on gaining information of that occurrence, fails to promptly take reasonable steps to report the occurrence to the South African Police Service.
3.127 In addition to the provisions above the Children’s Act is currently undergoing a comprehensive review by the Department of Social Development. The Children’s Amendment Bill [PMB2-2015] dated 18 February 2015 tables the need to include offences against children which are contained in the Sexual Offences Act for the purpose of adding the offences to the list of offences in the Act that constitute a disqualification when it comes to working with children. The Amendment Bill also includes the insertion of a differentiation between adult and child offenders when criminal courts make findings of unsuitability to work with children, so as to bring the Act in line with the recent Constitutional Court finding in J v NDPP and another.²³¹
3.128 Generally where legislation includes words which are not defined they are accorded their ordinary dictionary meaning. Terblance and Mollema²³² argue that if this were to be done for the word “pornography” in the Children’s Act it would lead to the introduction of a third definition into our criminal law, thereby creating further uncertainty. As shown above the Sexual Offences Act and the FPA already contain different definitions.

Questions 33. In your view is it sufficient for the Children’s Act to make reference to “pornography” without defining it?

5. The Regulation of Interception of Communications and Provision of Communication-related Information Act

3.129 The Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (“RICA”) governs the interception and monitoring of electronic communications in South Africa. The central feature of RICA is a prohibition against the interception of monitoring of communications outside of the authorised exceptions: in this sense it is a law of general application which specifies limitations on the right to confidentiality of communications set out in section 14(d) of the South African Constitution.

3.130 RICA is important for interception and a powerful law enforcement tool. No person may intercept any communication unless such actions fall within an exception provided for. Communications include direct (oral) and indirect (electronic) communications. Indirect communications include downloading content from the Internet, SMS and e-mail, amongst others. Although not specifically provided for, where the criteria of the Act are met, interception may occur where children are for example shown child abuse material over mobile phones in order to groom them or to persuade them to reveal personal information. According to a discussion paper presented for Lawyers for Human Rights the criteria for interception are however very strict, for example only where there is an interception direction from a court, where authority is granted by a party of the communication; to prevent serious bodily harm (which must be immediate) or to determine location in case of emergency.²³³
3.131 RICA regulates the interception of communications, the monitoring of radio signals and radio frequency spectrums and the provision of communication-related information – information relating to indirect communication in the records of telecommunication service providers such as found in traffic headers. It also regulates applications for interception of communications and provision of communication-related information under certain circumstances – referred to as interception directions.
3.132 It further regulates law enforcement where interception of communications is involved and prohibits the provision of telecommunication services which do not have the capability to be intercepted. It provides for the establishment of an Office for Interception Centres which can effect interception and monitoring on behalf of law enforcement agencies.
3.133 The best-known aspect of RICA is the customer registration requirements set out in sections 39 and 40 of the Act. There is also a requirement for telecommunication service providers to store communication-related information (CRI), although it does not appear that this has been implemented.
3.134 Service providers are obliged to obtain and retain detailed information of persons who enter into a contract with a mobile cellular telecommunications service provider, as well as consumers who only buy a cellular telephone or a SIM-card. This is aimed at ensuring that a person using a mobile phone is traceable and can be held accountable for his or her usage and or abuse of the mobile service.
2.135 The Commission has noted that aspects of this Act – including those relating to the retention of traffic information – remain unimplemented although these could potentially bolster law enforcement’s efforts in respect of the investigation and prosecution of child abuse image offences.

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