1. Introduction

The South African Law Commission has on its programme several investigations relevant to the work of the Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women. These include:

* Project 90: Customary law of succession

* Project 107: Sexual offences

* Project 110: Review of the Child Care Act

The Commission has had the opportunity to brief the Committee on these investigations before and this input will therefore focus on events following our last briefing. My colleague, Ms Maureen Moloi and the full-time member of the Commission, Professor Maithufi, have spoken / will speak on the customary law of succession. My presentation will focus on the sexual offences investigation, the adult prostitution part thereof, the review of the Child Care Act, and trafficking of women and children.

2. Project 107: Sexual Offences

The Commission released its second discussion paper in a four part series in the Sexual Offences investigation in December 2001. This document focuses on process and procedural issues relating to sexual offences, but took into account the comments and submissions received on the first discussion paper which focused on the substantive law. It contains a reworked Sexual Offences Bill which now covers both the substantive and procedural law – in other words, a comprehensive sexual offences Bill.

The Commission’s consultation process on the draft Bill and discussion paper has been finalized. Following a very successful workshop in Gordon’s Bay with a select group of legal experts on 15 – 17 February 2002, several other workshops were held. In this regard, the Commission would like to record is sincere appreciation for the assistance rendered in this regard by the National Network on Violence against Women, the Gender Commission, and the S A National Council for Child and Family Welfare, amongst others, for arranging workshops on the sexual offences discussion paper in interesting places such as Vredendal, Koffiefontein, White River and Thoyandou.

More than three hundred written submissions and completed questionnaires have been received on the draft Bill and discussion paper. These submissions have been collated and considered with a view to formulate the Commission’s final recommendations in report form. The draft report is ready and will be considered by the Project Committee at the end of this month. It contains a draft Sexual Offences Bill and covers both the substantive and procedural law. Should the Project Committee approve the draft report (and Bill) the report will serve before the Commission at its next meeting later this year. This will then enable the Department of Justice and Constitutional Development to introduce the draft Sexual Offences Bill in Parliament early next year.

The third leg of the investigation deals with adult prostitution. After considering its options, the Commission decided to release an issue paper for public comment in August 2002. The issue paper presents three options on which comment is invited. The three options presented are criminalization, legalization and decriminalization. The recent Constitutional Court judgment in the Jordan matter highlights the complexity of this issue and the strong division in opinion as to what the appropriate legislative response to adult prostitution should be. The public response to the release of the issue paper has been encouraging and numerous comments and submissions are being received. The issue paper (Issue Paper 19) is available on the Commission’s webpage.

The fourth leg of the investigation deals with pornography and its impact upon children. Work in this regard has started.

3. Project 110: Review of the Child Care Act

The discussion paper is a substantial document of over 1200 pages. Given the broad scope of the investigation, the discussion paper covers a wide range of issues. This includes international issues such as inter-country adoptions, international child abduction, and trafficking of children across borders; constitutional issues affecting children, the best interests of the child standard; definitions of childhood and the attainment of majority; and child protection issues, which include aspects such as the statutory protection of the child within the family home and the placement of the child in substitute family care. The discussion paper also addresses issues relating to the protection of children as consumers, the health rights of children, and children in especially difficult circumstances. This latter topic deals with categories of children such as children infected and affected by poverty and HIV/AIDS and street children. The discussion paper also covers children caught up in the continuum of care: From early childhood development and partial care to foster care, adoption, and residential care. The discussion paper concludes with an analysis of the religious and customary laws affecting children and possible new court and monitoring systems for serving the needs of children.

Among the more contentious preliminary recommendations made in the discussion paper are the recommendation that the age of majority be lowered to 18 years; that children born of artificial reproductive techniques be allowed access to the donor file and all information relating to his or her genetic parent(s) when such child reaches the age of 18 years; that more than one (and possibly more than two) person(s) be allowed to acquire and manage parental rights and responsibilities, or components thereof, in respect of a particular child; that mothers and married fathers be accorded such parental rights and responsibilities automatically, while unmarried fathers and other persons will have to apply to court to acquire such rights and responsibilities; that local government be empowered and compelled to provided prevention and early intervention services for children; that the common law defence of the right of reasonable parental chastisement to a charge of assault be repealed, which in effect will make some serious forms of parental chastisement a criminal offence; that children over the age of 12 years may consent to HIV testing; that all children should have confidential access to contraceptives and reproductive advise; and that safety at places of entertainment frequented by children be regulated.

A draft Bill based on the recommendations has been drafted and was handed to the national Department for Social Development at the end of June 2002 for input. The draft Bill has been distributed for comment and several workshops on the draft Bill have been held with stakeholders. The draft report and Bill have been approved by the Project Committee at its last meeting and will be reconsidered by the Commission later this year. The Commission has agreed to support the Department of Social Development in the departmental and Parliamentary processes to ensure that Cabinet approval is still obtained this year to introduce the draft legislation in Parliament. The latest draft of the Children’s Bill, as it is called, is available on the Department of Social Development’s webpage.

4. Trafficking of women and children

The Commission does not have an investigation on its programme dealing exclusively with trafficking of women and children. However, trafficking of women and children for purposes of commercial sexual exploitation is dealt with in the first discussion paper on sexual offences. Further, the Commission has made specific recommendations in the discussion paper and draft report on the Review of the Child Care Act regarding trafficking of children. These include the recommendation to include a general provision in the new children’s statute which will make it a criminal offence for any person to traffic in children. This is in addition to the provisions criminalizing the commercial sexual exploitation of children provided for in the Commission’s draft Sexual Offences Bill. Trafficking in women for purposes of prostitution is also dealt with in the Issue Paper on adult prostitution.

The Commission recommends in the discussion paper and draft report on the Review of the Child Care Act that the provisions of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transorganised Crime, be incorporated in the new children’s statute. To cater for the situation where countries are not Parties to the Protocol and whose children are trafficked to South Africa or to which South African children are being trafficked, the Commission also recommends the conclusion of bi-lateral and multi-lateral agreements.

It is also recommended that section 3 of the Refugees Act 130 of 1998 be amended to provide that children who have been trafficked to South Africa and who are afraid to return to their country of origin due to a well-founded fear that they may be trafficked again or that their lives may be in danger should qualify for refugee status.

Gordon Hollamby

Principal State Law Adviser: SA Law Commission

17 October 2002

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