Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Minimum Age Convention, 1973 (No. 138) - South Africa (Ratification: 2000)

The Committee notes the information supplied by the Government in its first and second reports. The Committee also notes with interest that South Africa ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), on 7 June 2000. The Committee would like to draw the Government’s attention to the following points.

Article 2, paragraph 1, of the Convention. Scope of application. The Committee notes that section 43(1) of the Basic Conditions of Employment Act (BCEA) provides that no person may employ a child who is under 15 years of age. Section 1 of the same Act defines an employee as: (a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer. The Committee also notes that section 52A of the Child Care Act states that no person shall employ or provide work to any child under the age of 15 years. It therefore appears that the BCEA and the Child Care Act exclude self-employment from their application. The Committee recalls that the Convention applies not only to work under an employment contract but to all types of work or employment. The Committee requests the Government to indicate in its next report any measures taken or envisaged to ensure the application of the Convention to all types of work outside an employment relationship, such as self-employment.

The Committee also notes that section 3(3) of the BCEA provides that this Act does not apply to persons employed on vessels at sea in respect of which the Merchant Shipping Act, 1951 (Act No. 57), is applicable. The Committee requests the Government to indicate the national legislation that fixes the minimum age for admission to employment on merchant vessels.

Article 3, paragraph 2. Determination of types of hazardous work. The Committee notes with interest that under section 85 of the Mine and Health and Safety Act, 1996, no person may cause or permit an employee under the age of 18 years to work underground in a mine and no employee under the age of 18 years may work underground in a mine. The Committee also notes with interest the Government’s statement in its report that the Occupational Health and Safety Act prescribes the circumstances in which children should not work at all. The Government mentions an extensive list of such work including work in formal and informal mining; night work; work involving long hours; use of chemicals or heavy machinery; work in bars, escort agencies, night clubs or workplaces where alcoholic beverages are consumed or sold, etc. The Committee takes note of this information, and requests the Government to indicate which legislative provision contains such a list of hazardous activities prohibited for children under 18 years of age, and to supply a copy of it. It also asks the Government to indicate whether workers’ and employers’ organizations were previously consulted for the determination of such hazardous work.

Article 3, paragraph 3. Exception to the age of 18 years for admission to hazardous work. The Committee notes that according to section 44 of the BCEA, the Minister, on the advice of the Employment Conditions Commission, may 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 education in terms of any law. The Government indicates in its report that the Department of Labour, in consultation with the Employment Conditions Commission, is in the process of developing regulations in this regard. According to the Government’s report, these regulations are envisaged to take place by 2005, in line with paragraph 3 of Article 3. The Committee recalls that Article 3, paragraph 3, of the Convention provides that national laws or regulations or the competent authority may, after consultation with the organizations of employers and workers concerned, where such exist, authorize employment or work as from the age of 16 years on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch activity. The Committee requests the Government to ensure that the abovementioned regulations comply with the requirements of Article 3, paragraph 3, of the Convention, and asks the Government to inform it of developments regarding their adoption.

Article 6. The Committee notes that the Government states in its report that the National Department of Education is responsible for vocational training and for setting standards and guidelines that should be followed by institutions offering vocational training to children at school. The Department of Labour has developed a learnership system which replaced the previous apprenticeship system. The Government states that there is no minimum age for the learnership system, but since children up to the age of 15 are subject to compulsory schooling, learnerships are likely to start from age 15 onwards. The Government indicates that in order to safeguard the interests of young learners, the Department of Labour has made a sectoral determination for learners in learnerships, which sets out the conditions of employment for these learners. The Committee notes that this sectoral determination contains no information related to children. The Committee recalls that under Article 6 of the Convention, the Convention does not apply to work done by persons of at least 14 years of age in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist. The Committee requests the Government to provide information on the system of vocational or technical education, and the conditions prescribed by the competent authorities for any work done by children and young persons as part of vocational or technical education. It also requests the Government to indicate whether the consultations required by Article 6 of the Convention have taken place. 

Article 7. Light work. The Committee notes that in its reports, the Government states that the national laws do not allow the granting of exemptions for the employment of persons between the age of 13 and 15 years as the employment of children of that age is expressly prohibited by national law. The Committee nonetheless observes that according to the 1999 survey of activities of young people, it appears that quite a number of children under 15 years are economically active in some way or another. The Committee recalls that Article 7, paragraph 1, of the Convention provides that national laws or regulations may permit persons from the age of 13 to engage in light work, which is: (a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. The Committee also recalls that according to Article 7, paragraph 3, of the Convention, the competent authority shall determine what is light work and shall prescribe the number of hours during which, and the conditions in which such employment or work may be undertaken. The Committee accordingly requests the Government to indicate the measures taken or envisaged in respect of provisions to determine light work activities and the conditions in which such employment or work could be undertaken by young persons of 13 years or more.

Article 8. Artistic performances. The Committee notes that the BCEA of 1997 provides, under section 50(2)(b), that the Minister of Labour may make a determination in respect of section 43(1) to allow the employment of children involved in the performance of advertising, sports, artistic or cultural activities. The Committee also notes the information provided by the Government in its report according to which the proposed sectoral determination for children in performing arts which is expected to be released in 2003, makes provision for the issuing of permits for record purposes and to ensure compliance with the sectoral determination. The Government indicates that in developing the sectoral determination for children in the performing arts, the department embarked on a process of extensive public participation. The Committee recalls that under Article 8 of the Convention, after consultation with the organizations of employers and workers concerned, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of this Convention, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which and the conditions in which such employment or work is allowed. Recalling that the specified minimum age for admission to employment or work in South Africa is 15 years, the Committee considers that approval for young persons of under 15 years of age to take part in artistic activities should be granted in individual cases, and that permits so granted shall prescribe the number of hours during which and the conditions in which such employment or work is allowed. The Committee therefore requests the Government to continue to provide information on any provision issued under section 50(2)(b) of the BCEA, and to supply a copy of it as soon as it is adopted.

Article 9, paragraph 3. Registers. The Committee notes that section 31 of the BCEA provides for the obligation of every employer to keep a record containing at least the following information: (a) the employee’s name and occupation;(b) the time worked by each employee; (c) the remuneration paid to each employee; (d) the date of birth of any employee under 18 years of age, and (e) any other prescribed information. The Committee notes however that by virtue of section 28 of the BCEA, section 31 does not apply to an employer who employs fewer than five employees. The Committee recalls that Article 9, paragraph 3, of the Convention requires national laws or regulations or the competent authority to prescribe the registers or other documents which shall be kept and made available by the employer, and establishes that such registers shall contain the names and ages or dates of birth, duly certified wherever possible, of persons whom he/she employs or who work for him/her and who are less than 18 years of age. The Committee therefore requests the Government to take the necessary measures to ensure that every employer, regardless of the number of persons he/she employs is required to register such information, and to provide information about these measures.

Part IV of the report form. The Committee notes the Government’s statement in its first report that an employer in the Western Cape was found guilty of employing a 12-year-old girl in the agricultural sector. The Committee also notes with interest the decision taken by the Ceres Magistrates Court mentioned in the Government’s report, "The State vs. Daytona Stud Farm (Pty) Ltd", according to which an employer of children under the age of 15 in the agricultural sector was found guilty and fined on several grounds. The Committee requests the Government to continue stating whether courts of law or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention.

Part V of the report form (read in conjunction with Article 1 of the Convention). The Committee notes with interest that in 1998, the Department of Labour signed a Memorandum of Understanding with ILO/IPEC. The Committee also notes the information provided by the Government in its report according to which the National Programme of Action (NPA) coordinated from the Office of the President of the Republic of South Africa, is the instrument by which the commitments to combat child labour are carried out. The Committee notes that the Department of Labour also facilitated the formation of the Child Labour Intersectoral Group (CLIG), a body consisting of key government departments, non-governmental organizations, and employers’ and workers’ organizations. This body coordinates the work on child labour and is the subcommittee of the National Programme of Action (NPA) on the Rights of the Child. The Government states in its report that in 1998, the Department of Labour facilitated the formation and adoption of a provisional Child Labour Action Programme. The policy identified five primary areas of action: employment law, educational policy, social security, job creation, and social mobilization and information. The Committee notes that the Survey of Activities of Young People (SAYP) was conducted in June and July 1999 by Statistics South Africa with IPEC support. This very detailed survey has shown that more than 2 million children between the ages of 5 and 14 years, and another 980,000 children between the ages of 15 and 17, are in paid labour. The majority of these children work in subsistence farming, trade, commercial agriculture and services. The Government indicates in its report that following the SAYP, an enforcement policy has been developed to guide inspectors on what steps to follow when coming across a child labour case and what measures to take.

The Committee must express its concern over the situation described above and invites the Government to communicate detailed information on the measures taken or envisaged progressively to bring its practice into line with its legislation. The Committee also invites the Government to continue providing information on the manner in which the Convention is applied, including statistical data on the employment of children and young persons, extracts from the reports of inspection services, and information on the number and nature of violations detected involving children.