THE PRESIDENCY REPUBLIC OF SOUTH AFRICA

RESPONSE TO THE UN QUESTIONNAIRE ON: THE GLOBAL STUDY ON VIOLENCE AGAINST CHILDREN

CONSOLIDATED AND SUBMITTED BY: THE OFFICE ON THE RIGHTS OF THE CHILD: PRESIDENCY

NOVEMBER 2005

INTRODUCTION

The response of the South African Government to violence against children must be understood within the context of South Africa's transition from a past characterised by state-enforced discrimination, exclusion and inequity. This divisive, state-driven social engineering relegated the majority of the country's people and their children to the fringes of the body politic and the economy, and it distanced them - almost entirely - from access to developmental resources.

The systematic marginalisation of the black people of South Africa resulted in unprecedented levels of social, economic and cultural deprivation that fractured family and social structures with long-term repercussions that continue to reverberate through communities to this day.

The relationship between poverty and vulnerability to violence, abuse and exploitation has been well documented globally. The compounded impact of generations of race and class discrimination has left especially black South African children in a severe state of deprivation and underdevelopment. The compromised resilience of the poor - and particularly poor children - to violence and abuse is recognised internationally and explains the primary cause of their vulnerability to the vagaries of violence and abuse in South Africa.

The eradication of poverty, inequality and underdevelopment is therefore fundamental to the achievement of the national vision of a caring and people ­centred society in which the rights and dignity of all are respected and protected. Children's rights to survival, growth, protection, development and participation are entrenched in South Africa's Constitution and these rights have been further reinforced in subsequent legislation, policy development and government programmes.

Lending further credence to government's commitment to the rights of the child, an Office on the Rights of the Child (ORC) has been established in the Presidency, the highest executive office in the land. The ORC, in collaboration with ORCS in the Premiers Offices in all the nine Provinces of South Africa, relevant government departments, the Children's Rights Advisory Councils (previously referred to as the NPA Steering Committees), at National and Provincial levels, coordinate and monitor the implementation of the National Children's Rights Programme. Promotion of the rights and age appropriate responsibilities of children - and achievement of substantive rights realisation for this vulnerable group - are explicit goals of the National Children's Rights and Responsibilities Programme.

Internationally, South Africa has since the advent of democracy in 1994, systematically expanded its participation in the global agenda for the protection and promotion of children's rights. The country has also acceded to the major international standard-setting instruments for the protection of children against violence. The South African government, therefore, remains committed to implementing the provisions contained in the National Constitution and international instruments. During the past ten years of democracy, government has overhauled its domestic legislation to align it with the South African Constitution and international standards.

The following are questions posed by the UN and response from the South African Government.

LEGAL FRAMEWORK

This part of the questionnaire aims to determine how your country's legal framework addresses violence against children, including prevention of violence, protection of children from violence, redress for victims of violence, penalties for perpetrators and reintegration and rehabilitation of victims.

1. International Human Rights Instruments

Describe any developments with respect to violence against children that have resulted from your country's acceptance of international human rights instruments, including, for example, the Convention on the Rights of the Child and its optional protocols, the Palermo Protocol or regional human rights instruments. Provide information on cases concerning violence against children in which your country's courts or tribunals have referred to international or regional human rights standards.

1.1 The United Nations (UN) Convention on the Rights of the Child (1989)

South Africa ratified the United Nations (UN) Convention on the Rights of the Child or (CRC) of 1989 in 1995. The Convention ascribes primary responsibility for child protective services to government and clearly outlines what individual governments should do to safeguard children from serious harm. By ratifying the United Nations Convention on the Rights of the Child, South Africa committed itself - unequivocally - to mainstream a child centred approach in governance processes.

Within the context of meeting the Millennium Development Goals (MDGs) South Africa continually aligns and reviews its Child protection and care policies and programmes to ensure the achievement of the MDGs as they pertain to children.

1.2 The African Charter on the Rights and Welfare of the African Child (1997)

On 7 January 2000, the South African Government ratified the African Union's "African Charter on the Rights and Welfare of the African Child". This Charter is intentionally context-specific and reflective of African culture, values and mores. The Charter includes a special emphasis on the rights and responsibilities of African children that are not addressed in the CRC. There is, for example, a strong focus on collective rights and responsibilities, with less emphasis on the primacy of individual rights. The Charter also addresses issues such as female circumcision, children's responsibilities to their families and their communities, and the role of extended families in child rearing.

1.3 Optional Protocol on the Sale of Children. Child Prostitution and Pornography (2002)

For states that had ratified the Convention, the Optional Protocol on the Sale of Children, Child Prostitution and Pornography (2002),"became a legally binding instrument on 18 January 2002. South Africa acceded to the Optional Protocol on 30 June 2003. This protocol focuses on the criminalisation of serious violations of children's rights, namely the sale of children, illegal adoption, child prostitution and child pornography. In addition, the protocol stresses the importance of international cooperation as a means of combating the trans­national nature of these transgressions.

It also calls for the implementation of extensive public awareness, information and education campaigns to enhance the protection of children and young people from these serious violations of their rights. Evidence of South Africa's intention to comply with the protocol is captured in various parts of this document, including the country's efforts to harmonise international and regional cooperation and awareness campaigns.

1.4 The International Labour Organisation ILO 182 Convention on the Elimination of the Worst Forms of Child Labour

South Africa ratified this Convention on 7 June 2000. It requires ratifying governments to take measures to effect the immediate abolition of 'the worst forms of child labour. This includes slavery, child prostitution, and using children for illegal activities and works which - by their very nature or circumstances - are likely to harm the safety or morals of children or young people.

The Convention recommends that programmes of action should focus specifically on younger children, the girl child, work situations in which girls are at special risk and other groups of children with special vulnerabilities or needs.

1.5 The International labour Organisation ILO 138 Minimum Age for Admission to Employment Convention of 1973

This convention was ratified by South Africa on 30 March 2000. It requires that ratifying states pursue a national policy designed to ensure the effective abolition of child labour and to elevate progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.

The Convention specifies that the minimum age for work likely to jeopardise the health, safety or morals of children should be at least 18 years. The Convention further indicates that laws may permit the employment of children between 13 and 15 years of age in light work that is unlikely to be harmful to their health or development and work 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.

The Department of Labour oversees a Child Labour Action Plan that has developed several focus areas for research and intervention. Partial funding for this programme was provided by the International Labour Organisation. The Plan attempts to combat the worst forms of child labour, which include action plans and pilot projects addressing, for example, the commercial sexual exploitation of children, trafficking of children and using children in illegal activities. All Government Departments are responsible for implementing the Child Labour Action Plan and they contribute to research in this regard.

1.6 Other international obligations that contribute to the protection of children and to which South Africa has formally ascribed are the following:

·         The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. South Africa has signed, and work towards ratification of this protocol is in progress.

·         The Convention on the Minimum Age for Admission to Employment (ILO No. 138) was ratified on 30 March 2000.

 

Council of Europe Cyber Convention: South Africa signed the Convention, on 23 November 2001. Ratification of the Council of Europe's Additional Protocol to the Convention on Cybercrime is currently underway. This additional protocol criminalises acts of a racist and xenophobic nature committed on the internet or other electronic media. When this protocol has been signed the country will proceed with the ratification of both instruments.

 

·         South Africa acceded on 01 August 2003 to the Convention on the Protection of Children and Cooperation in respect of Inter-country Adoption.

 

·         South Africa acceded on 8 July 1997 to the Convention on the Civil Aspects of International Abduction (Hague Convention)

 

·         The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was ratified by South Africa on 10 December 1998.

 

·         South Africa ratified, on 20 February 2004, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. This protocol supplements the UN Convention against Trans­national Organised Crime.


South Africa has used the above international instruments extensively to review, develop, enhance and inform child-related legislation, policies and programmes.

2. LEGAL PROVISION ON VIOLENCE AGAINST

Child protection is the responsibility of the national and provincial governments. Legislation and policies pertaining to child protection are developed at the national level with extensive input from the provincial governments. Consultation with civil society organisations and institutions is integral to all child care and protection policy formulation processes.

Implementation, at the programme level, is a provincial competency and will therefore vary according to the specific needs of each province. This section of the questionnaire details progress made in respect of legislation that pertains to the protection of children. In addition, the core government departments i.e. Social Development (welfare), Health, Education, Justice, the South African Police Service, Foreign Affairs and Labour each have sector-specific policies and obligations in respect of child protection. These sectoral policies are attached as annexure to this report.

Rewriting and amending the pre-1994 legal statute has been one of the major challenges of the new, democratic Parliament of South Africa. Since 27 April 1994 Parliament has produced in excess of 875 new pieces of legislation. Much of the new legislation has concerned itself with the transformation of the state and the establishment of a regulatory environment conducive to a flourishing, rights-based legal culture.

In addition, a hefty portion of the new legislation is aimed at redressing the injustices of the past and at ameliorating the negative impact of decades of discrimination, domination, inequity, patriarchy and underdevelopment. An aspect of the law reform process that has received a great deal of attention is the marginalised position of children, disabled persons and women; with a specific emphasis on their advancement and their protection from all forms of abuse and violence.

All new legislation and indeed the entire law reform process is guided by the principles and values espoused by the National Constitution - the law that enjoys primacy over all the other legislation.

2.1. The Constitution of the Republic of South Africa

Section 28 of the Bill of Rights - the cornerstone of the Constitution - provides for the protection of children's rights as follows:

(1)   Every child has the right:

(a) to a name and a nationality from birth;

(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;

(c) to basic nutrition, shelter, basic health care services and social services;

(d) to be protected from maltreatment, neglect, abuse or degradation;

(e) to be protected from exploitative labour practices;

(f) not to be required or permitted to perform work or provide services that:

(i) Are inappropriate for a person of that child's age; or

(ii) Place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be ­

(i) kept separately from detained persons over the age of 18 years; and

(ii) treated in a manner, and kept in conditions, that take account of the child's age;

(2) A child's best interests are of paramount importance in every matter concerning the child

(3) In this section a "child" means a person under the age of 18 years.

The rights of children as described by the Constitution have found further expression in the unfolding legislative programme of Parliament. Two important child-related pieces of legislation are currently being considered by Parliament; they are the Children's Bill and the Child Justice Bill.

The Child Care Act, 1983, as amended, is currently being comprehensively reviewed and will be replaced by the new Children's Act. It is expected that the Parliament will pass the new Bill shortly. The National Assembly has already adopted the Children's Bill in a second reading. The Bill is due to be submitted to the National Council of Provinces, (the second house in the South African Parliament), in August 2005.

The Child Justice Bill deals with children who have come into conflict with the law and promotes an entirely new approach to managing these children in a constructive framework aimed at diversion from the mainstream criminal justice system, rehabilitation and correction. While passage of the Bill is being awaited, an Interim National Protocol for the Management of Children Awaiting Trial and consistent inter-sectoral collaboration at the national, provincial and local tiers of government, have resulted in practices that largely anticipate the formulations contained in the new Child Justice Bill.

Elements of the Protocol include diversion programmes for children in lieu of prison sentences and the application of alternative sentencing practices aimed at rehabilitation and reintegration into communities. The number of children awaiting trial in correctional facilities, police cells and secure care facilities were reduced on average from 2200 child detainees in 2000, to 1380 in May 2005.

2.2  Child Care Act, 1983

The Child Care Act is the primary legal resource for the protection of children and young people. This Act determines the powers of commissioners of child welfare (magistrates presiding in children's' courts) and governs the operation of children's courts. It also provides for official investigations into cases of alleged abuse and neglect and it regulates out-of-home placements. The Act compels health care professionals, social workers, educators and the managers and staff of children's homes and other care institutions to report suspected ill-treatment of children and young people in their care.

This Act will shortly be replaced by the more comprehensive Children's Act which has as one of its key objectives the holistic protection and care of all children.

2.3 Prevention of Family Violence Act, 1993

This Act is the predecessor to the Domestic Violence Act, 1998 and was replaced by the latter except for sections 4 and 5. Section 4 requires any person in a position of responsibility for a child to report any reasonable suspicion that the child has been abused to a police official, a commissioner of child welfare or a social worker in a designated organisation. This provision runs parallel with section 42 of the Child Care Act, 1983 and can be used as a complementary provision although the Children's Bill may well replace it.

2.4 The Child Care Amendment Act (1999)

The Child Care Amendment Act, 1999 took effect on 1 January 2000. The Child Care Act, 1983 was amended to provide for the protection of children against commercial sexual exploitation. The insertion of Section 50a describes measures for dealing with perpetrators and those who own, lease, manage or occupy property on which the commercial sexual exploitation of children occurs. It also provides for the failure to report such occurrence within a reasonable time.

2.5 The Abolition of Corporal Punishment Act. 1997

This Act repeals any provision that authorises corporal punishment decisions by a court, including a court of traditional leaders. Corporal punishment is also outlawed in schools, out-of-home placements and in correctional facilities.

2.6 The Child Justice Bill

In 1996 the SA Law Reform Commission was commissioned to review the situation of children within the criminal justice system, which resulted in a proposed Child Justice Bill, 2002 that caters for the protection of children accused of crimes. The Child Justice Bill proposes a new minimum age for criminal capacity, the use of individual assessments, the application of new procedures as they relate to children, the use of diversion mechanisms, more appropriately structured child justice courts, alternative sentencing options and a review system for effective monitoring.

In terms of the Criminal Procedure Act, 1977 children younger than 7 years are presumed to lack criminal capacity. Those between 7and13 years are also accorded this lack of criminal capacity but this assumption may be rebutted. Children between 14 and17 years old have criminal capacity and those over 18 are treated as adults.

Whilst awaiting the passage of the Child Justice Bill, by Parliament, an Interim National Protocol for the Protection of Children Awaiting Trial, was adopted by the Ministers of Justice, Social Development, Correctional Services and Safety and Security in 2002. This interim protocol is monitored by the Inter-sectoral Child Justice Steering Committee which is chaired by the Department of Justice. It monitors all children awaiting trial and deals with matters pertaining to their individual wellbeing. The focus of the protocol is to practice diversion methods and to make use of alternative sentencing practices where available.

The National Prosecuting Authority, for example, has issued an instruction to fast-­track the cases of children awaiting trial for more than 3 months. Local case management teams are being established between the various disciplines, to ensure that children awaiting trial are monitored throughout the system. The objective of the Child Justice Bill and the parallel Child Justice System is to divert as many children in conflict with the law as possible from the mainstream criminal justice system.

2.7. The Correctional Services Act, 1998

Section 7 (2) (b) makes provision for separation of male prisoners from female offenders.

Section 7 (2) (c) makes provision for the protection of children against abuse in correctional facilities by insisting on the separation of child and adult offenders. Section 19 (2) (3) of the Act also provides for the access of children to social services with a view to preventing instances of abuse and exploitation.

Sections 32 and 102 of the Act regulate the lawful use of force and justify certain measures aimed at keeping offenders in safe custody.

Administratively, all incidents of unauthorised or excessive use of force should be investigated immediately, both departmentally and criminally. Strict disciplinary actions are prescribed for officials found guilty of the excessive use of force or the assault of offenders.

The Department of Correctional Services is in the process of retraining officials on the use of force/authority. Revised training programmes focus on human rights education with a move in emphasis from punishment to rehabilitation and correction as a means of reintegrating offenders back into society.

The Department of Correctional Services also has an internal complaints procedure to deal with any act of violence against children.

Other institutions to which official complaints can be directed include:

·         The Judicial Inspectorate.

 

·         The Independent Complaints Directorate.

 

·         The Secretariat for Safety and Security.

 

·         The SA Human Rights Commission.

 

·         The Office of the Public Protector.


2.8. The Domestic Violence Act, 1998

This Act encompasses a substantial broadening of the limited scope of its predecessor, the Prevention of Family Violence Act, 1993 and recognises that domestic violence is a serious social evil and an obstacle to achieving gender equality.

The Domestic Violence Act (DV A) took effect in December 1999. The legislation relies heavily on strong inter-disciplinary coordination and is aimed at providing a victim-centred legal remedy for acts of domestic violence and abuse. The legislation is structured in such a way that it compels all service providers to collaborate on the management of individual cases.

Special protective measures contained in the DV A enable children direct access to legal remedy by not insisting that an adult prefers charges. Section 4(4) determines that: "Notwithstanding the provisions of any other law, any minor, or any person on behalf of a minor, may apply to the court for a Protection Order without the assistance of a parent, guardian or any other person." This implies that any child can approach the court directly for a Protection Order.

In an attempt to secure support for victims, the Act provides that any person making an application for a Protection Order (complainant) may be accompanied by up to three persons. Provision is also made for in-camera proceedings.

The definition of domestic abuse in the Act is broad and encompasses the physical, sexual, psychological and economic nature of abuse. The legislation makes provision for a peace officer to arrest any respondent at the scene of an incident of domestic violence without a warrant if the peace officer reasonably suspects that the respondent has committed an offence containing an element of domestic violence.

It also makes provision for the complainant to apply to court for a protection order. Any other person, including a counsellor, health service provider, and member of the South African Police Service, a social worker or a teacher can bring this application on behalf of the complainant. The Act specifically states that any minor, or any person representing a minor, may also apply to court for a protection order without the assistance of a parent, guardian or any other person.

Furthermore, a court may refuse contact between the child and the respondent, if it considers this measure to be in the best interests of the child. It may also prescribe the conditions under which contact may occur, should limitations on contact be necessary.

On issuing a protection order, the court must also issue a warrant of arrest, the execution of which is suspended, subject to compliance with any prohibition, condition, obligation or order imposed by the court. Another important aspect of the Act is that it empowers a court to order the seizure of arms or dangerous weapons that are in the possession or under the control of the respondent in appropriate circumstances.

Any person who contravenes any prohibition, condition, obligation or order imposed by the court is guilty of an offence and on conviction, is liable to a fine or imprisonment for a period not exceeding 5 years.

2.9. Other legislation passed since 1994 that has a direct or indirect bearing on the protection of children from violence

In 1995 Parliament approved comprehensive amendments to the Criminal Procedure Act and, more specifically, those elements pertaining to conditions of bail. The amendment recognises the right to bail, but sets stringent guidelines prohibiting release on bail when women and children are likely to be at risk at the hand of the accused. The court may also refuse bail when the likelihood exists that the accused might attempt to influence or intimidate a witness, or when threats of violence have been made by the accused.

In 1996 the Commission on Gender Equality Act established the Commission on Gender Equality. In terms of this legislation the Commission has the power to investigate any gender-related issues of its own accord. The Commission may also investigate complaints referred to it and it may attempt to resolve disputes that come before it. Furthermore, the Commission may rectify any act or omission by mediation, conciliation or negotiation and, where necessary, to refer any matter to the South African Human Rights Commission or the Public Protector. The South African Human Rights Commission can, for example, institute court proceedings on behalf of a complainant.

In 1997 the Divorce Courts Amendment Act opened the then Black Divorce Courts to all races, giving women greater access to less costly divorce proceedings.

In 1997 the Criminal Procedure Second Amendment Act brought about further changes to the bail laws to ensure that persons accused of having committed serious offences are not released on bail, especially offences where women and children are the victims.

In 1997 the Criminal Law Amendment Act was approved by Parliament. Besides giving effect to the Constitutional Court's judgment in respect of the unconstitutionality of the death penalty, this Act provides for the imposition of minimum sentences in respect of certain serious offences such as murder and rape. The criteria that determine the severity of these offences apply when particular circumstances pertain and these may include:­

·         when the death of a woman was caused by a person in the commission of a rape or attempted rape; or

 

·         where the victim was raped more than once; or

 

·         where the rapist has previous convictions for rape; or

 

·         where the victim is under the age of 16; or

 

·         where grievous bodily harm is inflicted.

 

The Witness Protection Act was approved by Parliament in 1998. Offences to which this Act applies include murder, rape, kidnapping and indecent assault.

This legislation provides protection for witnesses that have been intimidated - a common feature in the prosecution of domestic violence related matters.

The Prevention of Organised Crime Act, 1998 introduces measures to combat organised crime, money laundering and criminal gang activities. It prohibits certain activities relating to racketeering, including ongoing, continuous or repeated participation or involvement in certain offences. It prohibits money laundering and criminalises certain activities associated with gangs. The Act also provides for the recovery of the proceeds of unlawful activities and for the forfeiture of assets that have been used to commit an offence. Offences to which numerous provisions of this Act apply include murder, rape, kidnapping, assault with intent to do grievous bodily harm, indecent assault, child-stealing, malicious injury to property and the contravention of section 20(1) of the Sexual Offences Act, 1957.

The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 emanates from section 9 of the Constitution, which deals with the right to equality. The Act consequently deals with prevention and prohibition of unfair discrimination as well as the promotion of equality. The objects of the legislation are, among others, to;­

·         give effect to the letter and spirit of the Constitution;

 

·         prevent and prohibit unfair discrimination and to provide redress in cases of unfair discrimination;

 

·         facilitate South Africa's compliance with international human rights treaty obligations, with specific reference to the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women;

 

·         provide for the eradication of current systemic discrimination which is a legacy of previously legalised discrimination;

 

·         provide for the promotion of equality, prioritising the adoption of measures to advance persons disadvantaged by unfair discrimination; and

 

·         provide for measures aimed at ensuring the eradication of unfair discrimination, hate speech and harassment with special focus on race, gender and disability.

 

Chapter 2 of the Act deals with the prevention, prohibition and elimination of inter alia unfair discrimination and harassment. Besides the general prohibition of unfair discrimination on any of the prohibited grounds, (which is not a closed list, but includes no less than 17 prohibited grounds for discrimination), special attention is given in this Chapter to the prohibition of unfair discrimination on the grounds of race, gender or disability. Sections 7 to 10 highlight unfair discrimination in areas that are not specifically prohibited by the Act and that might be alleged, such as discrimination based on age.

Chapter 2 also prohibits any form of harassment. "Harassment" is defined in Section 1 as "serious, persistent, unwanted conduct which demeans, humiliates or creates a hostile environment or is calculated to induce submission and which is related to sex, gender, sexual orientation or a person's membership of a group identified by one or more of the prohibited grounds".

Chapter 4 of the Act deals with enforcement mechanisms. Disputes arising out of the provisions of this legislation are adjudicated in equality courts. All Magistrates' Courts and High Courts are equality courts and presiding officers adjudicating over these matters are trained for this purpose. The South African Human Rights Commission and the Commission on Gender Equality may also institute proceedings on behalf of litigants in these courts. The equality courts have the power to make a wide range of orders that may vary from orders of a deterrent nature to orders of a restorative or corrective nature.

3. Indicate if corporal punishment of children, in any setting, including in the family, is explicitly prohibited in your legal system. Provide details of any legal defences available to those who administer corporal punishment to 'children, including in the family. Provide information on penalties applicable to those who administer corporal punishment to children, including in the family.

All forms of corporal punishment have been outlawed except for the defence of reasonable chastisement of a child in the home/family (The Abolition of Corporal Punishment Act, 1997). Recent deliberations by Parliament's Portfolio Committee on Social Development have concluded that this remaining common law defence should be outlawed and a clause to this effect has been inserted in the soon to be approved Children's Bill. Penalties applicable are similar to those that apply to the crimes of assault, assault with grievous bodily harm (GBH) and attempted murder and murder. Sentences could include imprisonment, compensation-orders, contribution-orders and interdicts as well as the loss of parental rights and responsibilities.

4. Provide information on whether the penal code permits corporal punishment and/or capital punishment as a sentence for crimes committed by under 18 year olds.

Sections 10, 11 and 12 of the Constitution of the Republic of South Africa outlaw corporal and capital punishment and provide as follows:

Section 10: Human dignity: Everyone has inherent dignity and the right to have their dignity respected and protected;

Section 11: Life: Everyone has the right to life;

Section 12: Freedom and security of the person: Everyone has the right to freedom and security of the person, which includes the right­

·         not to be deprived of freedom arbitrarily or without just cause;

 

·         not to be detained without trial;

 

·         to be free from all forms of violence from either public or private sources;

 

·         not to be tortured in any way; and

 

·         not to be treated or punished in a cruel, inhuman or degrading way.


In terms of the Criminal Law Amendment Act regarding Minimum Sentences, life sentences do not apply to children under the age of eighteen (18). Sentencing is monitored by the Department of Justice and Constitutional Development and the National Prosecuting Authority may take the matter on review or appeal.

Provision is also made for automatic review by a High Court Judge of any sentence involving imprisonment for a child.

5. Provide details on whether bullying/hazing and sexual harassment are explicitly addressed by legislation.

Bullying and hazing are specifically addressed by the SA Schools Act, 1994 which prohibits it. Sexual Harassment has also been outlawed in various pieces of Labour legislation an example of which is the Basic Conditions of Employment Act. The Safe Schools Policy and the Policy to address Sexual Violence in Schools both deal with matters of bullying, hazing and sexual harassment. The Departments of Education, Safety and Security, Health, Justice and the National Prosecution Authority collaborate inter-sectorally on the Safe Schools project and the programme aimed at eliminating Sexual Violence in schools.

6. Provide information on the way in which harmful or violent traditional practices, including but not limited to female genital mutilation, child marriage or honour crimes are addressed in your country.

The proposed new Children's Bill makes provision for the protection of children from social, cultural and religious practices that are detrimental to their well­being, health or dignity. Specifically it provides that:

Every child:­

·         Below the minimum age set by law for a valid marriage has the right not to be given out in marriage or engagement; and

·         Above that minimum age has the right not to be given out in marriage or engagement without his or her consent.

Furthermore, the Bill prohibits genital mutilation or the circumcision of female children as well as virginity testing of children. Taking into consideration the child's age, maturity and stage of development, every child has the right to refuse circumcision.

A male child who has been subjected to circumcision against his will may also lay a charge of assault or indecent assault with the intent to do grievous bodily harm, as the case may be. These charges may be preferred against the person that performed the circumcision; or a person that is under obligation to protect that child from maltreatment, abuse or degradation.

7. Provide information on the applicability of specific provisions to address all forms of violence against children" to non-citizens and stateless children, including asylum seekers and displaced children. If specific provisions do not apply to such children, provide details of protection offered to them.

The Constitution: Chapter 2, Section 18 defines the term "children" to mean all children and every one under the age of 18, not only South African citizens. The protective measures in this document are therefore applicable to all children living in South Africa.

The Child Care Act, 1983 stipulates that non-citizens and stateless children, including asylum seekers and displaced children have the right to all measures designed to protect all children. Additional legislation that applies is listed below:

The South African Immigration Amendment Act, 1994: The preamble, paragraphs N, 0 and P include children as part of immigration system. The Act provides for the protection of the human rights of foreigners. This includes an obligation that the country educates civil society on the rights of foreigners and refugees. In protecting foreigners, the Act ensures that: (1) A human rights-based culture of enforcement is encouraged; (2) international obligations of the Republic are complied with; and (3) civil society is educated on rights of foreigners and refugees.

The South African Immigration Amendment Act, 2004: Section 9 stipulates that: Any decision in terms of the Act (other than the decision contemplated in subsection 1 of this Act dealing with the decision of entry or refusal of foreigners by Minister) that materially and adverse1y affects the rights of any person, shall be communicated to that person in the prescribed manner and shall be accompanied by the reason for that decision.

·         The South African Refugee Act controls and protects the rights of refugees. Chapter 5 provides all refugees full legal protection which includes all rights set out in Chapter 2 of the Constitution and the right to remain in the Republic in accordance with the provisions of this Act. Refugees are entitled to qualifying documents, education and heath services. Section 32 of the Act provides that any child and mentally disabled person that qualifies for refugee status in terms of Section 3 and who needs care must be assisted when applying for asylum. It also provides that children must be brought before the Children's Court for protection.

Chapter 3 deals with the protection and control of Asylum Seekers, including children. Children under the age of 16 are exempted from furnishing photographs / identification during application for asylum.

South African Citizenship Act, 1995: In terms of Section 10 of this Act a minor who returns to the Republic may retain his or her South African citizenship upon attaining 18 years of age if he or she was outside the Republic.

8. Provide information on any difference in the definition of violence and the applicable legal framework according to:

·         The sex or sexual orientation of the victim and/or of the perpetrator;

 

·         The age of the victim and /or of the perpetrator;

 

·         The relationship between the victim and the perpetrator, including, but not limited to infanticide, sexual violence in marriage, incest and sexual abuse within the family, and physical chastisement. )


Presently, common law still differentiates between males and females in this regard. In addition the Sexual Offences Act, 1957 determines that rape can only be perpetrated by men and that females are the inevitable victims. In practice, these rules of evidence, have been broadened to include the social nature of such crimes and this is reflected in the new Sexual Offences Bill. This legislation is currently under consideration by the Portfolio Committee of Justice & Constitutional Development.

This Bill is a distinct departure from its predecessor in that it provides for a non-­gender-specific definition of rape. Until this legislation is passed the sexual assault of a male is adjudicated under the indecent assault charge, which is a far less serious offence than rape. In addition, domestic violence that may occur in same-sex partnerships is covered under the Domestic Violence Act.

9. Provide information on any recent comprehensive review of the legal framework to address violence against children.

The Sexual Offences Act, 1957 has undergone a comprehensive review by the South African Law Reform Commission who, after broad consultation, referred a draft Bill to the Minister of Justice for consideration. The Bill was approved by Cabinet and then forwarded to Parliament for final deliberation and passage. The Bill is substantially different to the existing legislation and addresses specifically issues related to sexual violence against children.

9.1 The Sexual Offences Bill

The proposed legislation contains the following elements:

·         Rape is no longer defined as unlawful sexual intercourse between a man and a woman. Instead, the Bill defines rape as an unlawful act of sexual penetration. Acts of sexual penetration are regarded as prima facie unlawful when committed under coercive circumstances, under false pretences, or with persons incapable in law of comprehending the act of sexual penetration.

·         The Bill creates two new statutory offences of "sexual violation" and "oral genital sexual violation". The sentences for contraventions of these offences are on par with those proposed for rape.

·         The Bill introduces a new crime dealing with acts of sexual penetration or indecent acts with consenting children. The legislative proposal is gender neutral and makes no distinction between acts committed against boys and girls. The proposal merely refers to children between the age of 12 and 16. It is further recommended that the defences available under the old law be repealed and replaced by the defence that the accused was deceived into believing the child (between the ages of 12 and 16 years) was over the age of 16 years and that that belief was reasonable.

·         The Bill defines a new crime - that of child prostitution. This is to replace the current provision in the Child Care Act dealing with the commercial sexual exploitation of children. Included in this new offence, is the prohibition of the organisation and promotion of child sex tours. The Bill asserts that it is an offence to intentionally commit a sexual act with a child; or to accept any reward or compensation for such an act; to arrange such a transaction between a child and another person; and to keep a brothel or in any way offer or facilitate the commercial sexual exploitation of a child.


Due to the numerous problems in practice that have been brought to the attention of the Law Reform Commission, it was found that the adversarial system of criminal procedure and related rules of evidence are not suitable for the prosecution of sexual offences (particularly involving children). The following elements are contained in the proposed legislation:

·         The creation of a category of vulnerable witnesses that will include all complainants in sexual offences cases. These vulnerable witnesses will be afforded new protective measures extending beyond those currently provided by the Criminal Procedure Act.

·         The abolition of the cautionary rule with regard to children and other complainants in sexual offence cases.

 

·         Reconsideration of the similar fact rules with regard to sexual offences, more readily allowing the admission of such evidence where it is relevant to the case.

 

·         Reconsideration of the Jules with regard to previous consistent statements. A judicial officer should no longer draw negative inference from the fact that the complainant did not lay the complaint at 'the first reasonable opportunity.

 

·         Hearsay evidence of children has been revisited in an attempt to more readily allow admissibility of such evidence.


The Portfolio Committee on Justice and Constitutional Development is considering the Criminal Law Amendment (Sexual Offences) Bill, 2003. The Department of Justice and Constitutional Development chairs an interdepartmental Steering Committee for the planning, costing and implementation of the proposed legislation.

In a parallel process aimed at addressing an escalating trend in violent crimes against women and children, the South African Cabinet has established an Interdepartmental Management Team to promote an Anti-Rape Strategy, under the chair of the Sexual Offences and Community Affairs (SOCA) Unit of the National Prosecution Authority.

Fifty Three (53) dedicated Sexual Offences Courts have been established at a Regional level, countrywide. Case rolls at these courts deal exclusively with sexual offences. Specially trained and dedicated magistrates and prosecutors handle the sexual offences in a more victim-centred way. Additional Courts are established where no permanent courts can be established immediately.

There are 15 such Additional Sexual Offences Courts operating at the moment. The South African Government and the Justice Ministry is in the process of developing and implementing plans to ensure equal access to resources for all Regional Courts dealing with sexual offences cases.

Conviction rates in the dedicated courts have risen to 64%. This increase is a significant improvement over the 48% prosecution rate achieved in non­ specialised regional criminal courts. In addition the average case turnaround time in the specialised courts has been reduced from 285 days to 142 days.

9.2 The Child Justice Bill

Child Justice Bill, 2002 proposes a new minimum age for criminal capacity, the use of individual assessments, the application of new procedures as they pertain to children, the use of diversion mechanisms, more appropriately structured child justice courts, alternative sentencing options and an effective review and monitoring system.

9.3 Review of the Child Care Act and the Children's Bill

An exhaustive process of review, research and, consultation led to the , development of the new Children's Bill. The Children's Bill is nearing finalisation and approval by Parliament. Given the broad scope of the preparatory investigation, the Bill contains a wide range of measures designed to protect and defend the rights of children. Some of the relevant aspects of the Bill are highlighted below:

·         The Bill addresses the question of the best interests of the child, children's rights and the responsibilities of children.

 

·         It deals with the diversity of family forms in South Africa with a shift in focus from parental power to parental responsibility. The Bill also deals with the acquisition of parental responsibility by persons other than biological parents and the termination of parental responsibility.

 

·         It recognises prevention and early intervention services as vitally important components of a child's development.

 

·         Formal measures for the protection of children from abuse and neglect are the central focus of the new legislation. Exploitation and abandonment, being forms of abuse and neglect respectively, are included within the ambit of this legislation. The Bill further addresses issues such as the protection of the health rights of children, the protection of children as consumers, children in need of special protection, and the protection of children affected by the divorce or separation of their parents.

 

·         The Bill deals with the temporary care of children by persons other than their parents or ordinary caregivers and refers specifically to the following forms of substitute care: foster care, adoption, and residential care. More specifically, it addresses aspects such as professional foster care, cluster foster care, parental rights and responsibilities, rights and responsibilities of foster parents, the foster care grant, who may be adopted, who may adopt, subsidised adoptions, the rights of children to care and protection in residential care facilities, minimum standards and quality assurance in residential care, and funding of residential care.

 

·         The new legislation addresses international issues affecting children. These include, inter alia, inter-country adoptions, cross-border trafficking in children, child abductions and matters pertaining to refugee children.

 

·         It retains the existing court structure but grants more extensive powers to Judicial Officers on matters pertaining to children. The Bill also addresses the matter of child-support grants and social security for children. In addition, a monitoring system is established to ensure the effective implementation of the new children's statute.

 

·         The Bill specifically addresses the care of sexually exploited children. In this regard, the references to child prostitution, child pornography and child trafficking focus on the child as a victim and as being in need of care.

 

·         Through this legislation the common law defence of the right to reasonable parental chastisement is abandoned. This measure has been welcomed and will protect children from serious breaches of their physical integrity. In effect, the bill criminalises certain forms of parental chastisement.

 

·         The Bill further provides that all children over the age of 12 years may consent to HIV testing, with proper pre- and post-test counselling. It also provides for confidential access to condoms for all sexually active persons, regardless of age. It further regulates safety provisions at places of entertainment

 


The far-reaching implications of the new legislation have necessitated the establishment of an inter-sectoral Committee to oversee the costing, planning and implementation of the Bill.

9.4 Films and Publications Amendment Act. 2004

This legislation amends the Films and Publications Act, 1995. Key changes in this legislation include the following:­

·         The definition of child pornography is amended while the provisions for the possession of pornographic materials are further regulated. In addition new definitions with regard to sexual conduct are also imposed. These amendments increase the effectiveness of the legislation by broadening the range and scope of the legislation.

 

·         New sections have been inserted that provide for the regulation of internet-linked aspects of pornography. Jurisdiction, presumptions and burden of proof considerations are also modified in the Amendment. These changes are aimed at addressing existing gaps with respect to crimes relating to violence against children committed via the Internet.

 

The Films and Publication Board is a statutory body established by the Films and Publication Act, 1996. The primary role of the Films and Publications Board is to classify films, videos, DVD's, computer games and certain publications for suitable viewership in relation to the age of the child.


10. Provide information on any studies and surveys, which have been undertaken to assess the impact of legal measures to address violence against children (Civil society).

See attached reference list

11. Identify those parts of the court structure in your country tasked with addressing violence against children. Indicate if your family or juvenile courts have specific responsibility for this issue.

11.1 All courts have the responsibility to protect the rights and wellbeing of children. High Courts are the upper guardians of children; while the Constitutional Court is the highest legal authority on all maters. The role of the Constitutional Court for the purposes of this report refers specifically to the protection and promotion of children's rights, particularly those prescribed in the Bill of Rights.

11.2 Existing courts and their responsibilities towards children:

·         Children's Courts: these courts protect neglected, abused and exploited children and remove them from abusive situations.

·         All Magistrates' Courts are Children's Courts in terms of the existing Child Care Act, 1983. There are 747 magistrates' courts countrywide.

·         Family Law Centres: These centres focus on dealing with family matters in a one-stop service centre approach that provides an appropriate court environment with the associated and necessary support services. Matters pertaining to Divorce, Maintenance (Parental Child Support), Domestic Violence and Child Care are processed in the Family Court Centres. There are five pilot centres at the moment and the concept will be extended to each province (9) by 2007.

·         Child Justice/Juvenile Courts: The purpose of these centres is to divert children in conflict with the law from the mainstream criminal justice system. Three One Stop Child Justice Centres serve as pilots and further rollout is planned on an incremental basis as the sustainability of the project is determined.

 

Sexual Offences Courts: The Department of Justice, the National Prosecution Authority, the Judiciary, the Legal Aid Board and Justice College collaborate to sustain and improve service levels at the 53 permanent and 15 additional existing Sexual Offences Courts. Their primary motivation is to protect the rights of victims/survivors of sexual violence by minimising secondary victimisation.

The environment in these courts is victim-friendly and best practice protocols are maintained through a monitoring and report­ back system. Where dedicated courts have been established, such cases are heard in the ordinary Regional Criminal Courts. In order to improve access to equal justice in all Regional Criminal Courts, the resources allocated to dedicated Sexual Offences Courts, will be mainstreamed to all Regional Courts on an incremental and sustainable basis.

12. Provide information on any legislatively defined minimum age required for valid consent to sexual activity. Is this age different for girls and boys? Is this age different in respect of heterosexual and homosexual activities?

The Sexual Offences Act provides that the minimum age for consensual sexual activity - for boys - is 14 years and 16 years for girls. The new Sexual Offences Bill will address this discrepancy, guided by section 9 of the Constitution, which inter-alia, outlaws age and gender discrimination.

13. Provide information on the minimum age of marriage for women and men

Presently in South Africa, all persons, whether male or female attain the age of majority at twenty-one years of age. The Age of Majority Act, 1972 provides for the special declaration of a minor to be a legal major. Persons who have attained the age of eighteen years may apply to the provincial division of the High Court of South Africa to be declared a legal major. In the new Children's Bill the age of majority for both male and females is 18 years.

Section 24 of the Marriage Act, 1961 (Marriage of minors) states that no marriage officer shall solemnise a marriage between parties of whom one or both are minors unless the consent which is legally required for the purpose of contracting the marriage has been granted and furnished to him/her in writing. The Act, stipulates in terms of the prohibition of marriage of persons under certain ages that:

(i) No boy under the age of 18 years and no girl under the age of 15 years shall be capable of contracting a valid marriage except with the written permission of the Minister of Home Affairs or any duly authorised official, should he/she consider such marriage desirable; and

(ii) If the Minister or any duly authorised official so directs, it shall be deemed that he/she granted written permission to such a marriage prior to the solemnisation thereof. The Children's Act in progress also refers to the same stipulations.

The Recognition of Customary Marriages Act, 1998 includes three requirements for the validity of customary marriages. One of these requires that both persons must be above 18 years.

The new proposed Children's Bill includes provisions for the marriage of minors. Section 12 (2a and 2b) provides that: Every child - below the age set by law for a valid marriage - has the right not to be given out in marriage or engagement; and above that minimum age has the right not to be given out in marriage or engagement without his or her consent.

14. Provide information on legislation and other measures to prevent the commercial sexual exploitation of children, including through prostitution and other unlawful sexual activities. Provide details on means to ensure that child victims of such exploitation are not criminalized. Provide information on legislation or other measures to prohibit all forms of sale or trafficking in children, including by their parents.

The proposed Children's Bill and Sexual Offences Bill both contain .provisions that address the commercial sexual exploitation and trafficking of women and children. The Sexual Offences Act, 1957 criminalises the establishment or operation of brothels. The Victim's Empowerment Programme provides support for children who become victims of sexual abuse or violence. The Child Justice Bill and parallel Child justice System also prescribe restorative measures for the rehabilitation of child perpetrators.

The provisions of the Anti-Trafficking investigation performed by the South African Law Reform Commission, has been implemented in practice while awaiting finalisation of the proposed legislation.

The Child Labour Action Plan - chaired by the Department of Labour - has also identified Commercial Sexual Exploitation of Children, as a primary area of focus and the inter-sectoral Action Plan proposes preventative measures and special interventions aimed at eliminating this base and cruel form of child labour.

15. Provide information on legislation and other measures to prohibit the production, possession and dissemination of child pornography. In particular, please provide information on any controls on pornography produced and/or disseminated via the internet.

15.1 The Films and Publications Act1 1996

The Films and Publications Act prohibits the production, possession, importation and distribution of pornographic material depicting persons that under the age of 18 years. It also provides for the: protection of children from exposure to pornographic material. One of the primary objectives of this legislation is the protection of children against sexual exploitation or degradation in publications, in films and on the Internet.

The Films and Publication Act has also been amended to make investigations and prosecution of Child Pornography offenders more effective. The Act has also broadened its definition of child pornography and imposes harsher sentences for offenders.

There is, however, concern about the vast and growing amount of pornographic material that is distributed via the Internet. The Act is being reviewed by the Department of Home Affairs to make better provision for the prosecution of Internet-related offences.

In celebration of the International Day of the Child (1 June 2005), the Department of Home Affairs held a two day conference to address the issue of Child Pornography. The theme of the workshop was: Action against the exploitation of children through pornography. Civil society organisations have also partnered with government to unite against child pornography, and a toll free number has been generated for urgent information and reporting purposes.

16. Provide information on any legislation or guidelines to protect children from injurious information and material transmitted through the media, Internet, videos, electronic games, etc.

The Films and Publications Act, 1996 establishes guidelines for the Classification of Films and Interactive Computer Games (Schedules 3 and 8). These guidelines impose restrictions on the distribution of injurious information, material transmitted via the media, and electronic games that could be harmful to children. The Department of Home Affairs and the South African Police Service are monitoring the cell-phone industry closely to assess children's access to harmful information via that medium.

At a recent conference convened by the Department Of Home Affairs, the major cell-phone companies . were requested to present and defend their positions on children's access to injurious information and material transmitted via cellular telephones.

Reporting obligations relating to violence against children

17. Provide information on legislation, regulations or administrative directives requiring reporting of all forms of violence against and abuse of children in all settings to appropriate bodies. If reporting legislation, regu