The National clap for South Africa

Chapter 1. Introduction

1.1The need for a Child Labour Action Programme

Children are the future of any country. There are various factors hindering the welfare and development of children in South Africa. One such factor is the involvement of children in the worst forms of child labour. Other factors include children engaged in other forms of work that are likely to be bad for their development.

This draft Child Labour Action Programme (CLAP) proposes ways of ensuring that children do not become involved in the worst forms of labour and other forms that might be detrimental. In developing this Child Labour Action Programme it was important to determine what, within the South African context, should be regarded as child ‘labour’. Work in and of itself is not necessarily harmful to a child. It will, in fact, often be beneficial in many ways. Thus an ILO document acknowledges that ‘the absence of work … can condemn the child to a variety of social, moral and health risks’. In addition, when identifying kinds of work that may be considered beneficial or harmful for the child’s development it is important to consider the role of cultural views, which differ from community to community.

The Government of South Africa has embarked on a process of formulating appropriate policies and a national action programme to combat child labour. The Department of Labour is the lead institution. This document briefly discusses the areas of work that children do, identifies the areas needing the most concerted attention, and recommends a range of actions.

The following are fundamental policy directives that require that South Africa take steps to avoid children engaging in work that is detrimental to them, and what kinds of work do be addressed.

1.1.1The Constitutional imperative

The Constitution (s 28) provides that children under 18 have a right to be protected from work that is –

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  exploitative, hazardous or otherwise inappropriate for their age,
  
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  detrimental to their schooling, or
  
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  detrimental to their social, physical, mental, spiritual or moral development.
  

Most participants in the national consultative process towards the CLAP supported the following definition of ‘child labour’, as drawn from the Constitution:

‘work by children under 18 which is exploitative, hazardous or otherwise inappropriate for their age, detrimental to their schooling, or their social, physical, mental, spiritual or moral development. The term ‘work’ is not limited to work for gain but includes chores or household activities in the child’s household, where such work is exploitative, hazardous, inappropriate for their age or detrimental to their development’.

This definition of child labour is now accepted by the government and other stakeholders and is used in this policy.

1.1.2International obligations

South Africa has ratified various international instruments on child labour, indicating the country's commitment to improve the situation of its working children.

South Africa, as a member of the International Labour Organisation (ILO), assisted in the drafting of the Worst Forms of Child Labour Convention (1999). It ratified the convention in 2000, which requires of the country to take time-bound measures to eliminate the worst forms of child labour (WFCL).

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  The WFCL convention includes four pre-defined worst forms:
  

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  all forms of slavery or practices similar to slavery, such as
  
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  the sale of a child;
  
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  trafficking of children, meaning the recruitment of children to do work far away from home and from the care of their families, in circumstances within which they are exploited;
  
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  debt bondage or any other form of bonded labour or serfdom;
  
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  forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;
  
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  commercial sexual exploitation, including the use, procuring or offering of a child for:
  
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  prostitution, or
  
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  the production of pornography or for pornographic performances;
  
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  use, procuring or offering of a child by others for illegal activities, including the trafficking or production of drugs.
  

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  The last category of worst form is work which by its nature or the circumstances is likely to harm the health, safety or morals of children. Here the convention recommends that the circumstances should be determined in consultation with organisations of employers and workers within a specific country – see 6.2. The Convention recommended that programmes of action should attend specifically to younger children, the girl child, hidden work situation in which girls are at special risk, and other groups of children with special vulnerabilities or needs.
  

The ILO Minimum Age for Admission to Employment Convention of 1973, ratified by South Africa in 2000, requires that ratifying states 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. It says that the minimum age for work likely to jeopardise the health, safety or morals should be at least 18 years. It states that laws may permit employment of children 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 benefiting from school or vocational programmes. Work done in schools or as part of a certified programme of education or training is allowed, provided certain safeguards are in place.

1.2Other international instruments

1.2.1The UN Convention on the Rights of the Child (CRC), 1989

This Convention was ratified by South Africa in 1994. It provides that every child has a right to be ‘protected from economic exploitation and from any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development’ [Art 32.1].

The Convention does not set a minimum age, but cross-refers to other international instruments. The convention says that the best interests of the child must be a primary consideration in all actions affecting children, whether undertaken by government or private actors.

1.2.2The African Charter on the Rights and Welfare of the Child, 1990

This Charter was ratified by South Africa in 2000. It adds to other instruments by saying that governments should promote dissemination of information about the hazards of child labour. It also states explicitly that it applies to both the formal and informal sectors of the economy.

The Charter notes that children have responsibilities towards their families, society, communities and govern­ment and the international community. In particular, a child ‘shall have the duty … to work for the cohesion of the family, to respect his (sic) parents, superiors and elders at all times and to assist them in case of need’ [Art 31].

1.2.3ILO Declaration on Fundamental Principles and Rights at Work, June 1998

The Declaration states that effective abolition of child labour is a fundamental principle and right at work. It says that eliminating child labour is critical for ensuring that the economic growth fuelled by growing international economic integration leads to more equity, social justice and less poverty. It requires a four-yearly global report on child labour, which must be translated into a programme of technical assistance to countries.

1.2.4The ILO Worst Forms of Child Labour Convention, 1999

This convention, which was unanimously adopted in 1999 by the Conference of the ILO and ratified by South Africa in 2000, requires ratifying governments to effect the immediate abolition of the ‘worst forms of child labour’. The categories used to define the worst forms are described at 1.1.2.

1.2.5Protocols

The UN has adopted a number of optional protocols on the CRC and other instruments that are relevant to the issue of child labour.

The Optional Protocol on the Involvement of Children in Armed Conflict was adopted by the UN General Assembly in May 2000. It calls on ratifying governments to do everything feasible to ensure that members of their armed forces who are under 18 years of age do not take part in hostilities. Governments should also ensure that children under 18 years are not recruited compulsorily into the armed forces.

Two other protocols of relevance are an optional protocol to the CRC on the sale of children, child prostitution and child pornography, and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplements the United Nations Convention against Trans-national Organised Crime.