SOUTH AFRICA: CHILD LABOR INFORMATION FOR TRADE AND

UNCLAS JOHANNESBURG 000011 DOL/ILAB FOR TINA MCCARTER AND PATRICK WHITE DRL/ILCSR FOR TU DANG E.O. 12958: N/A TAGS: ELAB EIND ETRD PHUM SOCI USAID SF SUBJECT: SOUTH AFRICA: CHILD LABOR INFORMATION FOR TRADE AND DEVELOPMENT ACT (GSP) 2008 REPORT REF: 08 STATE 127448 ¶1. The information in this cable was gathered from a variety of sources familiar with child labor in South Africa. The primary source of information remains the South African Department of Labor (SADOL) supplemented by discussions with the South African academic and NGO community. Regulatory framework governing child labor (reftel, Section A) -------------- -------------- ¶2. The Basic Conditions of Employment Act of 1997 sets the minimum age for employment at 15. The only exception exists for employment of children in the performing arts, which may be permitted upon application to the Department of Labor and in conformity with regulations. SADOL is also drafting regulations that define the nature and extent of employment that may be safely performed by children between the ages of 15 and 18. These regulations outline permitted hours and conditions of work and define hazardous labor. The debate on the regulations took longer than expected in the National Economic Development and Labour Council (NEDLAC) but is now complete and SADOL believes the regulations will be published in the Government Gazette in May 2009. ¶3. The Children's Amendment Act No. 41 of 2007 creates an advanced regulatory framework that includes the prevention and prosecution of child labor issues, and was signed into law by former President Mbeki in March 2008. The Act defines children engaged in child labor as children in need of care and outlaws child trafficking. Section 141 of the Act defines and criminalizes the worst forms of child labor, including trafficking, in accordance with ILO Convention 182. The Children's Amendment Act amends Children's Act 38 of 2005 and South African courts will read both acts together once implementing regulations are finalized. Children's legal advocates note that the South African government is already behaving as if the Act were in force and they strongly believe implementing regulations will be put in place during the course of 2009. (Note: Certain provisions of the Act are already in effect absent implementing regulations. The University of Pretoria Children's Law Center was instrumental in drafting the Act and RLO can facilitate a DVC to discuss how South African courts and government agencies function absent implementing regulations. End note.) ¶4. South Africa is working on a Children's Justice Bill that seeks a separate legal framework and rehabilitation program for children in conflict with the law. The long-dormant Bill has now been passed by the National Assembly but still has to be approved by the National Council of Provinces, and then be sent back to the National Assembly. SADOL and the NGO community believe the Bill will be signed into law (finalized) during ¶2009. The Children's Justice Bill will also require implementing regulations and if passed as currently written will enter into force in April 2010. ¶5. The minimum age for military enlistment is 18. Enlistment is voluntary. Enforcement against Child Labor (reftel Section B) -------------- -------------- ¶6. The Basic Conditions of Employment Act and the Children's Amendment Act govern child labor. Violating these acts carry penalties in criminal or labor court based on the nature of the offense. ¶7. The extent of child trafficking remains unknown but South Africa remains a source, transit, and destination country for the trafficking of persons, including children, from other countries in Africa, Asia, and Europe for prostitution and forced labor. Reports are that crime syndicates trafficked young girls for sex or domestic servitude and that young men are trafficked internally and cross-border chiefly for agricultural work, but also for street vending, crime, begging, and prostitution. ¶8. The government is limited to the use of piecemeal provisions of various laws to prosecute child traffickers. The Prevention of Organized Crime Act of 1998 can be applied to trafficking, as can specific laws against child labor and forced labor. The Sexual Offences Act of 2007 creates new or expanded statutory offenses applicable to all forms of sexual violation of children and the mentally disabled. The Children's Act of 2005 prohibits "the recruitment, sale, supply, transportation, transfer, harboring or receipt of children, within or across the borders of the Republic." The law also prohibits the commercial sexual exploitation of children, sexual intercourse with children under 16, or permitting a female under 16 to stay in a brothel for the purpose of prostitution. The maximum penalty for violations of the law is 20 years in prison. The Children's Amendment Act of 2007 addresses and defines unlawful child labor in extreme forms and outlaws child trafficking. However, until the completion of regulations governing the Act's implementation, the provisions on child trafficking cannot take effect. ¶9. Post is aware of one case of child labor and/or child trafficking that was prosecuted by South African authorities in ¶2008. On May 12, 2008, Mozambican citizen Aldina dos Santos was charged by the Pretoria Magistrates Court with trafficking children for sexual exploitation and fraud. The children were subjected to forced prostitution in a brothel. This was the first case of its kind to be heard in South Africa and is still ongoing. The Children's Act prohibits child trafficking and a convicted human trafficker can be sentenced to up to 20 years in prison. ¶10. SADOL, NGOs, and trade unions are unanimous that the incidence of child labor in formal employment remains extremely low. ¶11. SADOL said it has always tried to employ roughly 1,000 labor inspectors but despaired that the labor inspectorate has shrunk rapidly because of South Africa's critical skills shortage. Many inspectors have resigned because of more attractive offers from the private sector. Inspectors are trained to identify child labor and child trafficking but are instructed by SADOL to turn over any evidence to the South African Police for follow-up. Difficulties in gaining access to private property and overworked prosecutors also present implementation challenges in enforcing child labor laws. SADOL was not aware of any records that detail how many child labor or trafficking issues the labor inspectorate encountered in the past year. Social Programs to Prevent Child Labor (reftel Section C) -------------- -------------- ¶12. South Africa was a strong participant of the USDOL funded and ILO implemented Towards the Elimination of Child Labor Project (TECL). Under the auspices of TECL, South Africa created a Child Labor Plan of Action (CLPA). That plan has hundreds of measures designed to combat and prevent child labor, including its worst forms. SADOL remains the lead agency and notes that many of the measures have been streamlined into the current plans of all relevant South African Departments (Ministries). TECL and SADOL created a second Child Labor Plan of Action, known as the CLPA-II, in 2007. SADOL said that document has now been costed, that the Minister of Labor has made a decision to take over all efforts from TECL, and that SADOL will start implementation of the plan in 2009. ¶13. South Africa uses a variety of financial support mechanisms to prevent children's entry to and encourage children's withdraw from the labor market. The Child Support Grant is the most widely used and is available to resident citizen children under age 14 whose primary caregiver and spouses qualify under a means test. Foster Child Grants are available to foster parents who meet a means test, and have a court order indicating the foster care status of the resident citizen child. The government also provides a means-tested "Care Dependency Grant" for resident citizen children age 18 and under who have a severe medical or physical disability. Disability Grants also provide income for ill parents of vulnerable children. ¶14. The Child Labor Program of Action includes a recommendation that the child support grant be extended until children can graduate from school. As of April 2008, the Child Support Grant was increased from R200 ($19.96) to R250 ($24.50) a month. The Foster Care Grant increased from R560.00 ($55.88) in 2007 to R650.00 ($64.87) in 2008. (Note: The exchange rate conversion for the above figures is $1 = R10.02. End note.) Eliminating Worst Forms of Child Labor (reftel Section D) -------------- -------------- ¶15. South African law is designed to prosecute offenders involved in the worst forms of child labor. The CLPA-II also includes preventive steps for the South African government to reduce what they believe is an already small number of cases. ¶16. Education is compulsory but not free. Parents are required to pay school fees and purchase uniforms and school supplies for their children. However, schools are required to create programs that exempt poor parents from paying fees. The Department of Education also waives fees at some schools in the poorest areas. Roughly 5.5 million children are exempted from fees and 40 percent of primary schools are free. Increasing free compulsory education remains a contested topic, but is a strong goal of the ruling African National Congress. The country faces a severe lack of financial resources and skilled professionals to meet this potential objective. Progress Towards Eliminating Child Labor (reftel Section E) -------------- -------------- ¶17. South African government policies are promulgated with the intent of developing an educated and skilled work force and keeping children in school. SADOL's most recent (but unpublished) survey on child labor showed marked reductions in child labor activities since the last major survey in 1999. The survey found that 96 percent of children between the ages of 10 to 18 were reported to be attending school and 9 percent of children (roughly 703,000) had engaged in core economic activities. The most common forms of economic activity were working on a family plot, growing farm produce, or looking after household animals. Slightly less than half of those working spent under seven hours per week on economic activity, and 25 percent spent between 7-13 hours, and 4 percent of children spent more than 40 hours a week. (Note: SADOL made a political decision not to publish its most recent survey on child labor and it remains unofficial. Nevertheless, the survey is selectively available and many NGOs are now pushing STATS SA to publish the survey in place of SADOL. SADOL confirmed to RLO on January 15 that USDOL can cite the above figures but should notify SADOL if it plans to do so. End note.) Comment -------------- ¶18. Child labor in South Africa is almost non-existent in the formal and developed sectors of the economy. Most reports of child labor originate from the informal and agricultural sectors, particularly in former homeland areas. There are also reports of child trafficking. South Africa strengthened its framework for preventing child labor over the course of the year although the child support grant remains the largest mitigating factor. RLO attributes the legislative progress made on child labor directly to the U.S. Department of Labor-funded TECL program. No one before TECL had been able to bring the South African Government, academic community, and NGOs together to create a well-received plan of action. Post welcomes the second phase of the TECL project when it begins later this year. End comment. PASSEN