The National clap for South Africa

2.2Worst Forms of Child Labour

By the very nature of worst forms of child labour – generally illegal and concealed by the adults and children involved – there is limited access to information, particularly statistics. This is true of most developing and developed countries and South Africa is no exception. The extent of the problem is therefore difficult to gauge with any degree of accuracy, although its nature can be gleaned from reviewing research of a more qualitative nature.

While statistical information is lacking, of the activities falling within the definition of the WFCL the following are the only automatic WLFCL that appear to occur in South Africa in significant numbers:

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  bonded labour;
  
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  trafficking of children;
  
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  commercial sexual exploitation, including the use, procuring or offering of a child for prostitution or the production of pornography;
  
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  use, procuring or offering of a child by others for illegal activities.
  

These WFCL are discussed in Chapter 5.

Another practice similar to slavery, the compulsory recruitment of children for use in armed conflict, used to exist to some extent in the struggle against apartheid. Children, often voluntarily but in some cases due to force, joined military and self-defense units and thus engaged in armed conflict. With the dismantling of apartheid from 1990 onwards this ceased to be a problem in South Africa.

Chapter 3. The initial policy response

This section describes the policy approach developed in South Africa to date on issues that relate more or less directly to children’s work. It excludes aspects of policy that may indirectly affect children’s work-related activities, such as measures to alleviate poverty or the provision of basic water and energy services (indirectly addressing the fetching of wood and water). The latter are discussed elsewhere in this paper.

3.1Legal provisions on child labour

The prohibition of employment of children applied initially only to white children. In 1981 the Basic Conditions of Employment Act extended the prohibition on employing children under 15 to all population groups. However this Act excluded farm and domestic workers until the early 1990s. In 1991 a prohibition on employment of children under 15 was inserted into the Child Care Act, administered by the then Department of Welfare. Because this Act applies to all children, those in the agricultural and domestic sectors were now included in the prohibition. However, the Department of Welfare did not have adequate infrastructure and little enforcement and follow-up occurred.

3.1.1The Constitution

The Interim Constitution of 1993 contained clauses related to child labour. Section 28 of the final Constitution of 1996 states that a child's best interests are of paramount importance in every matter concerning the child. It also says that every child, defined as a person under 18 years of age, has the right:

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  To be protected from maltreatment, neglect, abuse or degradation;
  
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  To be protected from exploitative labour practices;
  
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  Not to be required or permitted to perform work or provide services that -;
  

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  are inappropriate for a person of that child's age; or
  
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  place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development.
  

Some other provisions of the Constitution that do not appear, at first glance, to relate to children’s work-related activities, may nevertheless impact on one or more of the categories of child work discussed below. An example is the right to basic nutrition, shelter, and social services. The constitutional rights in respect of children are not subject to the state’s available resources and must therefore be realised immediately, and can therefore be differentiated from clauses providing for the 'progressive realisation' of a given right.

3.1.2The Basic Conditions of Employment Act

In March 1998 the child labour provisions of the new Basic Conditions of Employment Act (BCEA) of 1997 took effect. This is the most important act dealing explicitly with child work. It prohibits employment of a child:

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  Who is under 15 years old;
  
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  Who is under the minimum school leaving age (where this age is 15 years or older);
  
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  Who is over 15 years but under 18 years old, if the employment –
  

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  is inappropriate for the age of the child or if the work places at risk the child’s well-being, education, physical or mental health, or spiritual, moral or social development;
  
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  has been prohibited by the Minister of Labour through regulations.
  

Section 83 gives the Minister of Labour the power to deem any category of persons to be employees for purposes of the Act. This power can be used to widen the scope of work considered unlawful. A person is considered an employee if that person:

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  Works for another person and receives any remuneration; or
  
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  In any manner assists in carrying on or conducting the business of an employer;
  
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  AND is not an independent contractor.
  

In terms of section 83A a person is presumed in certain circumstances to be an employee unless the contrary is proved. This should extend protection to children where their status as employees is disputed. The Act is enforced primarily through Department of Labour inspectors.

The Child Care Act (CCA, Section 52A) contains a similar prohibition, namely that ‘no person may employ or provide work to any child under the age of 15 years’. The clause has wider application than the BCEA. It outlaws both employment of such children, and provision of work. It is therefore likely that this section prohibits giving work to a child who works as an independent contractor. It is likely that Section 52A will be deleted, to remove the elements of duplication.

Section 46 of the BCEA provides that it is a criminal offence to assist an employer to employ a child in contravention of the Act, and to discriminate against a person who refuses to permit a child to be employed.

Regulations may be issued in terms of section 44 to clarify what kinds of work are considered inappropriate. Section 45 allows the Minister, after consultation with the ECC, to make regulations in respect of medical examination of working children. No regulations in terms of either of these sections have been published as yet.

The Minister of Labour may vary the child work provisions for any categories of employers, but only for advertising, sports, and artistic or cultural activities. A sectoral determination has been drafted to govern such activities. The Minister may grant a specific determination, applicable to an individual employer, only after union agreement if one exists at the workplace, or after informing all employees. The Minister must also first consult with the Minister of Social Development.

A child who gets injured at work can apply for compensation in terms of the Compensation for Occupational Injuries and Diseases Act. The laws on health and safety at work apply to child workers in the same way as they apply to adults.

3.1.3Occupational Health and Safety

In terms of the Occupational Health and Safety Act, employers must ensure that working conditions are safe and healthy and must do everything reasonable to reduce and avoid dangers. Health and safety representatives must be appointed in a workplace if 20 or more workers are employed there. This is not of much assistance to many working children because most work where fewer than 20 people are employed. Department of Labour inspectors also inspect workplaces to ensure compliance. One difficulty with regulations regarding safety and health at work is that much of the regulations assume the workforce to be male and adult. They may therefore not adequately address the vulnerabilities of children.

3.1.4Skills development

The Department of Labour is coordinating a skills development programme, governed by the Skills Development Act. This includes learnerships. There is no minimum age for learnerships, but since children up to the age of 15 are subject to compulsory schooling, learnerships are likely to start from age 15 onwards. The Act provides an institutional framework for a national strategy to develop and improve the skills of the South African workforce. This should benefit older children, since the youth will be an important target for such skills plans.