CHILD LABOUR

Ronaldah Lerato Karabo Ngidi

ATTORNEY: CENTRE FOR CHILD LAW
UNIVERSITY OF PRETORIA
 CHILD LABOUR

INTRODUCTION

Child labour can be broadly defined as child work which is not in line with
the child’s age and maturity and which affects the child’s enjoyment of
his or her fundamental civil; political or economic; social and cultural-
rights and which also affects the child’s broad right to survival and
development.

International law prohibits child labour under numerous instruments. In

South Africa Labour- and Children’s legislation also prohibits and
criminalises child labour.
1. DEFITIONS OF CHILD LABOUR

1.1 UNITED NATIONS CONVENTION ON THE RIGHTS OF THE

CHILD OF 1989

Article 32

(1)State parties recognise the right of the child to be protected from

economic exploitation and from performing work 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.
 (2) State parties shall take legislative, administrative, social and
educational measures to ensure the implementation of the present
article. To this end, and having regard to the relevant provisions of
other international instruments, state parties shall in particular:

(a) Provide minimum age or minimum ages for admission to

employment;
(b) Provide for appropriate regulation of the hours and conditions of
employment;
(c) Provide for appropriate penalties or other sanctions to ensure
effective enforcement of the present article.
1.2 AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE
CHILD

Article 15
(1) Every child shall be protected from all forms of economic
exploitation and from performing work that is likely to be harazadous or
to interfere with the child’s physical, mental, spiritual, moral, or social
development.

(2) State parties to the present Charter take all appropriate

legislative and administrative measures to ensure the full implementation
of this Article which covers both formal and informal sectors of
employment and having regard to the
 relevant provisions of the International Labour Organisation’s
instruments relating to children, State Parties shall in particular:
(a) provide through legislation, minimum wages to every
employment;
(b) provide for appropriate regulation of hours and conditions of
employment;
(c) provide for appropriate penalties of other sanctions to ensure
the effective enforcement of this Article;
(d) promote the dissemination of information on the hazards of
child labour to all sectors of the community.
1.3 WORST FORMS OF CHILD LABOUR CONVENTION 182
(ILO CONVENTION)

Article 3

For the purpose of this Convention, the term the worst form of
child labour comprises:

(a) all forms of slavery or practices similar to slavery, such as the

sale and trafficking of children; debt bondage and serfdom and
forced or compulsory labour, including forced recruitment of
children for use in armed conflict;
(b) the use, procuring or offering of a child for prostitution, for the
production of pornography or for pornographic performances;
 (c) the use; procuring or offering of a child for illicit activities, in
particular for the production and trafficking of drugs as
defined in the relevant international treaties;
(d) work which, by its nature or the circumstances in which it is
carried out, is likely to harm the health, safety or morals of
children.

Articles 4; 5; 6; 7 and 8 of the Convention set out the

obligations of which include legislative steps; government programmes of
action; provision for penal sanctions and stresses the importance
of education in eliminating the worst forms of child labour.
1.4 THE CONSTITUTION OF SOUTH AFRICA

Section 28(e) states that every child has the right to be protected from
exploitative labour practices

Section 28(1)(f) states that every child has the right not to be required or
permitted to do work or perform services that-
(i) are inappropriate for a person of that child’s age;
(ii) place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development.

 In terms of the Constitution a child is a person under 18 years of age, thus

provides for protection to all children regardless of age.
(3) A person who employs a child in contravention of subsection (1)
or (2) commits an offence.

Employment of children of 15 years or older

44. (1) Subject to section 43(2), the Minister may, on the

advice of the Commission, make regulations to prohibit or place
conditions on the employment of children who are at least 15 years of age
and no longer subject to compulsory schooling in terms
of any law.

(2) A person who employs a child in contravention of subsection

(1) commits an offence.
1.5 THE CHILDREN’S ACT 38 OF 2005

Section 305 of the Act provides for prohibited offences

against children and one of these is child labour.
1.6 BASIC CONDITIONS OF EMPLOYMENT ACT (South
Africa)
Section 43

43. (1) No person may employ a child—

(a) who is under 15 years of age; or
(b) who is under the minimum school-leaving age in terms of any
law, if this is 15 or older.9
(2) No person may employ a child in employment—
(a) that is inappropriate for a person of that age;
(b) that places at risk the child’s well-being, education, physical
or mental health,
or spiritual, moral or social development.

Section 48 prohibits all forced labour.

2. IMPLEMENTATION

In recognition of international obligations to eliminate child labour

there are certain practical mechanisms in place towards that State
Parties to the abovementioned conventions have undertaken.

2.1 International Programme on the Elimination of Child

Labour (IPEC)

This is a programme of the International Labour Organisation

which was established in 1992. The overall goal of IPEC is
the progressive elimination of child labour to be achieved
through the strengthening the capacity of countries to deal
with the problem and promoting a worldwide movement to
combat child labour.
 The IPEC currently operates in 88 countries and it is the
largest programme of its kind globally and the biggest single
operational programme of its kind. According to IPEC, child
labour not only prevents children from acquiring skills and
education they need for a better future, it is also
perpetuates poverty and effects national economies
through losses in competitiveness, productivity and potential
income.

Child labour can be combated through withdrawing children

from child labour, providing them with an education and
assisting their families with training and employment
opportunities contribute directly to creating decent work for
adults.
 The ILO’s latest global estimates on child labour indicate that in Africa progress
towards the elimination of child labour is lagging behind other regions in the
world.
 Sub-Saharan Africa has the greatest incidence of economically active children-

26.4% of all 4-14 year olds compared to 18.8% for Asia and the Pacific and
5.1% for Latin America.
 The persistent challenges of widespread and extreme poverty, high population

growth, the AIDS pandemic, recurrent food crises, and political unrest and
conflict clearly exacerbates the problem.
 Millions of children are victims of the worst forms of child labour and of particular

concern is child trafficking, the use of children in armed conflict, hazardous work
in agriculture, commercial sexual exploitation and domestic labour.
Children in Kwazulu-Natal farms-in their own families or
employed.
2.2 TOWARDS THE ELIMINATION OF THE WORST FORMS
OF CHILD LABOUR(TECL)

 This is a programme that supports South Africa, Botswana,

Lesotho, Namibia and Swaziland in their efforts to prevent and
eliminate child labour, and forms part of IPEC.
 These countries have committed themselves to end the prostitution of
children, child trafficking, the use of children to commit crime and other
worst forms of child labour.
 South Africa already had a comprehensive Child Labour Programme of
Action (CLPA) which TECL is strengthening this programme and its
implementation.
 The TECL first phase came into operation in 2004 and ended in June
2008. The second phase is between 2008 and 2012.
3. CHALLENGES

 Article 31 of the ACRWC provides, amongst others, for a child’s duty to

work for the cohesion of the family, the child’s duty to assist the family
in times of need and the child’s duty to serve his or her national
community by placing his or her physical and intellectual abilities at its
service.

 Eliminating child labour is not as simple as prohibiting it through

legislation. Children work for different reasons, such as poverty, lack of
skills and training for adults, schools being far way from them, etc.
Therefore where one intends to intervene to put to an end to child
labour, the surrounding circumstance of the child as a whole should be
considered.
 In a case of the worst forms of child labour such as child prostitution,
slavery, trafficking it is true that no compromise should be made in the
protection of the concerned children.

 Children used by adults to commit crime (CUBAC) is part of the worst

forms of child labour which TECL aims to eliminate. A recent South
African case illustrates how this can be used to protect a child.

 In an unreported case of S v Mfazwe and Others ( Case number 07/06,

in the CPD, 28 June 2007) the court gave recognition to the fact that
the youngest accused (16 years at the time of the commission of the
offence) could be seen to be a child used by an adult to commit a crime
which had been classified by the International Labour Organisation as a
worst form of child labour.
 In this high profile case a woman had hired others to murder her
boyfriend’s baby. They were all convicted of murder but the two
youngest (both below 18 years at the time of offence) escaped the
minimum sentence of life imprisonment, both received 15 year
sentences.

 The Community Law Centre of the University of Western Cape made

submissions to the court explaining the international law relating to
CUBAC.

 Waglay J stated as follows: ‘When sentencing children and juveniles,

especially where payment was offered to them to commit an offence,
courts should see these children and juveniles not only as perpetrators
of the offence but also victims of a serious form of exploitation.”