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

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour and application of the Convention in practice. The Committee previously noted from the Government’s replies to the list of issues raised by the Committee on the Rights of the Child (CRC) of 15 August 2016 that data from the Department of Labour indicated that 784,000 children were involved in economic activities between 2013 and 2016. The CRC expressed its concern in its concluding observations of 30 September 2016 that the activities of some business enterprises, in particular, those of extractive industries, had a negative impact on the enjoyment of the rights of the child, including through the exploitation of child labour (paragraph 17). It also expressed its concern at the persistent wide engagement of children in child labour, in particular in agriculture (paragraph 65). The Committee requested the Government to strengthen its efforts to ensure the progressive elimination of child labour, and to take the necessary measures to ensure that sufficient up-to-date data on the situation of working children is made available.

The Committee notes the Government’s information in its report that the National Day Against Child Labour has been commemorated in eight of the nine provinces in order to raise awareness against child labour. It also notes the Government’s information in its report under the Worst Forms of Child Labour Convention, 1999 (No.182) that the National Child Labour Programme of Action which is aimed at addressing child labour in the country is being implemented and is now on Phase IV covering 2017–21. The Committee further notes the Government’s information that according to the Survey of Activities of Young People, 2015, (SAYP 2015) of the 11.2 million children between the ages of 7 and 17 years, 577,000 children are involved in child labour, a decrease from 779,000 in 2010. The province of KwaZulu-Natal has the highest rate with about one out of ten children engaged in child labour. Children were mainly involved in production and trade of goods and services, including in private households (52.6 per cent), followed by agriculture (46.9 per cent) and transport services (25.3 per cent). While noting the measures taken and positive results achieved in terms of the reduction of child labour, the Committee requests the Government to pursue its efforts to ensure the progressive elimination of child labour in the country. It further requests the Government to provide information on the measures taken in this regard, including the concrete measures taken within the framework of the Child Labour Action Programme 2017-2021, and the results achieved in terms of the number of children withdrawn from child labour.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 1. National policy designed to ensure the effective abolition of child labour and application of the Convention in practice. The Committee previously noted that, according to the survey on child labour and other work-related activities in South Africa of 2010 (SAYP 2010), the number of children involved in child labour was estimated at 821,000. The survey indicated that these children needed action to be taken.

The Committee notes the Government’s indication in its report that the Department of Social Development (DSD) has developed a draft child exploitation strategy, which defines child exploitation according to the Children’s Act 38 of 2005 as child trafficking, child labour, child pornography and commercial sexual exploitation of children. The strategy is intended to ensure an integrated and intersectoral collaboration and approach between the Government and civil society organizations, with a view to reducing the incidence of child exploitation in South Africa. The Committee also notes that the Child Labour Programme of Action, Phase III (2013–17) has been launched.

However, the Committee also notes the Government’s replies to the list of issues raised by the Committee on the Rights of the Child (CRC) of 15 August 2016 (CRC/C/ZAF/Q/2/Add.1, paragraph 123) that data from the Department of Labour indicates that 784,000 children were involved in economic activities between 2013–16. The CRC expressed its concern in its concluding observations of 30 September 2016 (CRC/C/ZAF/CO/2) that the activities of some business enterprises, in particular, those of extractive industries, have a negative impact on the enjoyment of the rights of the child, including through the exploitation of child labour (paragraph 17). It also expressed its concern at the persistent wide engagement of children in child labour, in particular in agriculture (paragraph 65). While noting the measures taken by the Government, the Committee must express its concern at the significant number of children engaged in child labour. The Committee requests that the Government strengthen its efforts to ensure the progressive elimination of child labour, and to take the necessary measures to ensure that sufficient up-to-date data on the situation of working children is made available. The Committee also requests that the Government provide information on the implementation of the draft child exploitation strategy, once adopted.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1 of the Convention and Part V of the report form. National policy designed to ensure the effective abolition of child labour and application of the Convention in practice. The Committee previously noted Phase II of the Child Labour Programme of Action for the period 2009–12 (CLPA-II) was effectively implemented. The Committee also noted that a labour force survey was conducted in November 2010.

The Committee notes that the Government has communicated the results of the survey on child labour and other work-related activities in South Africa of 2010 (SAYP 2010). The SAYP 2010 found, over a period of 12 months, a total number of 268,000 children aged 7–17 years reported at least one kind of “market” economic activities, that is, work for a wage or salary, running of own business, or unpaid work in a family business, which amounts to 2.4 per cent of the total number of all children in this age group. When market and non-economic market work (that is, subsistence farming, collection of fuel and water, production of goods for household use, household construction, and catching of fish or animals for household consumption) are considered together, 31 per cent of children aged 10–15 years and 16 per cent of those aged 7–9 years were engaged in economic work. Overall, 16 per cent of children worked one to six hours on economic work, 5 per cent worked 7–13 hours, and 1 per cent each worked 14–20 hours and more than 21 hours per week. Moreover, a total of 90,000 children reported having been injured in the 12 months preceding the SAYP 2010 while doing an economic work activity. The Committee notes the indication in the SAYP 2010 that while the numbers involved in child labour are relatively low, and seem to have decreased over the years, the number affected – estimated at 821,000 – is large in absolute terms, and that these children need action to be taken. Consequently, the Committee urges the Government to strengthen its efforts to ensure the gradual elimination of child labour. In this regard, it requests the Government to provide information on the adoption of a national policy to combat child labour, including the possible extension of the CLPA. The Committee also requests the Government to continue to supply information on the application of the Convention in practice, including extracts from the reports of the inspection services, and information on the number and nature of infringements reported by these services.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee previously noted that the Government had reviewed and developed policies for Phase II of the Child Labour Programme of Action for the period 2009–12 (CLPA-II). It also noted that ILO–IPEC would be continuing its support for the implementation of the CLPA-II through the project “Towards the elimination of the worst forms of child labour Phase II: Supporting and monitoring the implementation of national plans of action in the three core countries in southern Africa” (TECL II).

The Committee notes the information in an ILO–IPEC report on the TECL II from April 2011 that the CLPA-II is currently being implemented. This report also indicates that, through the TECL II, 32 stakeholders have been trained in South Africa, including officials from the departments of social services, police, trade unions and employers’ organizations, the national prosecution authority, the Department of Labour and partners from implementing agencies. This report further indicates that the public’s level of awareness has been improved on child labour issues through the different activities carried out through the TECL II and the Department of Labour. The Committee encourages the Government to pursue its efforts, within the framework of the CPLA-II and the TECL II, towards the progressive elimination of child labour. It requests the Government to continue to provide information on specific measures taken in this regard and on the results achieved.

Article 7. Light work. The Committee previously noted the absence of regulations on light work, and it encouraged the Government to consider developing provisions regulating light work by children between the ages of 13 to 15 years of age in accordance with Article 7 of the Convention.

The Committee notes that section 4(2)(a) of Schedule 2 of the Health and Safety of Children at Work Regulations states that child a who is under 15 and subject to compulsory schooling may work in performances related to advertising, artistic or cultural activities through a permit granted in terms of Sectoral Determination 10, issued by the Minister of Labour under the Basic Conditions of Employment Act. Section 4(2)(b) further states that such children may also collect contributions on behalf of a fundraising organization; perform voluntary work for a church, charitable organization or an amateur sports club; and, as part of the child’s schooling, perform work that is appropriate for a person of that age which does not place at risk the child’s well-being, education, physical or mental health, or their spiritual, moral or social development.

Part V of the report form. Application of the Convention in practice. Following its previous comments, the Committee notes the information in the Government’s report that through inspections, ten cases of children engaged in farm work were detected and four cases of children engaged in domestic work were detected. The Committee also notes the information in an ILO–IPEC report on the TECL II from April 2011 that a Labour Force Survey was conducted in November 2010 and the age group for interviews was lowered to 5 years to include child labour concerns. This report indicates that the results of this survey will be released in 2011. The Committee requests the Government to provide information from the labour force survey of 2011, particularly information on the employment of children and young persons, including the number of children under the minimum age of 15 who are engaged in economic activities. It also requests the Government to continue to provide information on the application of the Convention in practice, including the number and nature of violations detected in the course of labour inspections related to the employment of children.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 3(1) and (3) of the Convention. Minimum age and determination of hazardous work. The Committee previously noted that, through assistance from the ILO–IPEC project “Towards the elimination of the worst forms of child labour”, the Government had drafted regulations on child labour in South Africa, and it expressed the firm hope that these draft regulations would soon be adopted.

The Committee notes with satisfaction the adoption of the “Regulations on hazardous work by children in South Africa”, on 15 January 2010, which include the Health and Safety of Children at Work Regulations (pursuant to the Occupational Health and Safety Act) and the Basic Conditions of Employment Act Regulations on Hazardous Work by Children. In this regard, it notes that, pursuant to sections 4–10 of the Health and Safety of Children at Work Regulations, no child worker may be allowed to work in jobs with respiratory hazards, in elevated positions, involving the lifting of heavy weights, in a hot or cold environment, in a noisy environment, involving power tools or cutting and grinding equipment. The Committee further notes that these Regulations define a child as a person under 18 years of age (pursuant to section 1(b)) and define a child worker as a child who is employed by or works for an employer for remuneration or works under the direction of an employer or another person (pursuant to section 1(c)).

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. In its previous comments, the Committee had noted the various initiatives embarked upon to eradicate child labour in South Africa, such as the Child Labour Programme of Action (CLPA), and the ILO–IPEC project “Towards the elimination of the worst forms of child labour” (TECL) which mainly focused on the implementation of the CLPA. The Committee notes the Government’s information that after four years of implementation of the CLPA, it has currently reviewed and developed policies for the second phase of the CLPA for the period 2009–12 (CLPA-II). The CLPA-II identifies a wide range of child labour-linked activities falling within the mandates of the several government departments and agencies. It aims to strengthen the implementation of several government policies, such as: policies and programmes on poverty, employment, labour and social matters; promoting new legislative measures against child labour and its worst forms; strengthening of national capacity to enforce legislative measures; and increasing public awareness and social mobilization against child labour and its worst forms.

The Committee also notes that, according to the technical progress report (TPR) of 30 June 2008 of the ILO–IPEC TECL project, the major mainstreamed policy under the CLPA is the Child Support Grant (CSG), which addressed child poverty and which has had a positive effect on school enrolment. In 2006, 6,980,088 children were direct beneficiaries of the CSG, and in April 2008 this had increased to 8,216,334 children. According to the TPR of 2008, this grant, which is currently available to children of up to 15 years, shall be ultimately extended to all children up to the age of 18 years, for which discussions are ongoing with the Ministers of Finance and Social Development. Furthermore, the CLPA, with the assistance of the TECL, has also achieved mainstreaming of a tool to prioritize water delivery to areas where many children are in households far from safe sources of water. The Committee further notes that, according to the TPR of 2008, a total of 17,375 children has directly benefited through the TECL project and a total of 6,454 (3,517 boys and 2,937 girls) were either withdrawn or prevented from child labour through educational services or training or through other non-education related services. The Committee finally notes that ILO–IPEC is continuing its support for the implementation of the CLPA-II under the TECL‑II project.

Moreover, the Committee notes that the Government with the assistance of the TECL has drafted the “Regulations on Child Labour in South Africa” which includes the Basic Conditions of Employment Act (BCEA) regulations on hazardous work done by children and the Occupational Health and Safety Act (OHSA) regulations on health and safety of children at work. It further notes the Government’s statement that the Employment Conditions Commission and the Advisory Council on Occupational Health and Safety have approved these draft regulations which are currently in the process of publication in the Government Gazette. The Committee expresses the firm hope that the draft regulations on child labour in South Africa will come into effect in the near future. It requests the Government to provide a copy of these regulations as soon as they have been published. It also requests the Government to provide information on the impact of the CLPA-II on abolishing child labour.

Article 2, paragraph 1. Scope of application. Self-employment. The Committee had previously noted that both the BCEA and the Child Care Act appeared to exclude self-employment from their application. It had also noted the Government’s information that the matter of covering self-employment in the BCEA would be brought before the relevant stakeholders for consideration. Noting that the National Department of Labour, in collaboration with the ILO, had established a technical task team responsible for drafting legislation that adheres to the Conventions ratified by South Africa, the Committee had requested the Government to provide information on whether the draft legislation had taken into consideration the Committee’s comments regarding the application of the labour laws to children who are self-employed. The Committee notes the Government’s indication that the draft BCEA regulations on hazardous work done by children stipulates for a wider scope of application of the minimum age provisions, including an independent worker. It notes that according to Regulations 3(1) and 4 of Schedule 2 of the draft regulations, a child who is under the age of 15 years, or who is subject to compulsory schooling, may not be employed as an employee and may not assist any person to carry out any work or business. The Committee further notes that Sectoral Determinations 6 to 14 covers the employment of children in informal sectors including those concerning the private security sector, domestic worker sector, wholesale and retail sector, forestry sector, farm workers sector, and hospitality sector.

Article 3, paragraphs 1 and 2. Minimum age for admission to hazardous work and determination of hazardous work. The Committee had previously noted that section 141(1)(e) of the Children’s Amendment Bill (B19-2006) contains a general prohibition concerning hazardous work by providing that no person may encourage, induce or force a child, or allow a child, to perform labour that: (i) by its nature or circumstances is likely to harm the health, safety or morals of a child; or (ii) places the child’s well-being, education, physical or mental health, or spiritual, moral or social development at risk. The Committee notes with interest that Regulations 8 and 9 of the BCEA regulations contain a list of 38 types of work prohibited to children under 18 years of age. In addition, “piece work” and “task work” where the remuneration is based on the quantity of work done, and on the completion of set tasks (section 5) and “night work” (section 7) are also prohibited to children under 18 years.

Article 3, paragraph 3. Exception to the age of 18 years for admission to hazardous work. In its previous comments the Committee had noted 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 that the Department of Labour was in the process of drafting regulations pertaining to children between 15 and 17 years. The Committee notes that the draft OHSA regulations on the Health and Safety of Children at Work contain provisions for the protection of child workers in hazardous works and prescribes conditions for the performance of such work by child workers (for example, work in elevated positions, lifting of weights, work in a cold, hot, or noisy environment, and to use power tools and cutting or grinding equipment). A “child” according to this regulation means persons under the age of 18 years, and a “child worker” is any child who: (i) is employed by, or works for, an employer and who receives, or is entitled to receive, any remuneration; or (ii) who works under the direction or supervision of an employer or any other person. The minimum age for employment or work being 15 years, it appears that the provisions referring to “child workers” under the OHSA regulations applies to children between 15 and 18 years of age. The Committee notes, however, that according to Regulation 2(2)(b) of the OHSA regulations, “no provision in these regulations may be interpreted as permitting the employment of a child who is 15 years of age or older and is not subject to compulsory schooling in any work which is prohibited in terms of any law”. The Committee recalls that according to the provisions of Article 3(3) of the Convention, the performance of types of hazardous work is only authorized for young persons between 16 and 18 years of age under strict conditions respecting protection and prior training. The Committee therefore requests the Government to take the necessary measures to ensure that the performance of hazardous types of work as indicated under the draft OHSA regulations are authorized only to children of at least 16 years of age, subject to conditions of protection and prior training. The Committee hopes that draft regulations will take into account the principles recalled above and it requests the Government to provide information on any progress made in this respect.

Article 7. Light work. The Committee had previously noted the absence of regulations on light work in the current relevant legislation. It had also noted that, even though South African domestic employment law prohibits the employment of children below the age of 15 years, the CLPA reported that 728,000 (6.8 per cent) children aged 5–14 years were found to work three hours or more per week, and 266,000 (2.5 per cent) to work 12 hours or more per week. It had therefore requested the Government to specify whether the necessary steps to regulate light work by children of at least 13 years of age were being taken within the framework of the draft legislation prepared by the Technical Task Team.

The Committee notes the Government’s statement that the draft regulations on child labour regulate the minimum age and light work by children under 15 years of age. The Committee notes the Government’s reference to Schedule 2, Regulation 4, which states that, “a child who is under 15 years of age or is subject to compulsory schooling may not be employed as an employee and may not assist any person to carry on their business. However, a child worker who is under 15 or subject to compulsory schooling may work in performance of advertising, artistic or cultural activities through a permit granted in terms of Sectoral Determination 10, issued by the Minister of Labour under the BCEA”. This regulation further allows children under 15 years of age to do voluntary work for a church or charitable organization, or as part of his/her schooling to do work that is appropriate for a person of that age. It also notes that Regulation 6(3) of the BCEA regulations further regulate work by children of at least 15 years of age. The Committee observes, however, that the above regulations do not regulate the employment of children of 13 to 15 years of age for light work. The Committee once again recalls that under Article 7 of the Convention, national laws or regulations may permit the employment or work of persons 13 to 15 years of age for light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, their participation on vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. The competent authority shall also prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee therefore once again strongly encourages the Government to include provisions regulating light work by children of 13 to 15 years of age in the relevant regulation, in accordance with Article 7 of the Convention.

Article 9, paragraph 3. Registers of employment. The Committee had previously noted that section 31 of the BCEA requires every employer to keep a record containing a list of information on his/her employees, including the date of birth of any employee under 18 years of age. It had noted, however, that according to section 28 of the BCEA, section 31 does not apply to an employer who employs fewer than five employees. The Committee notes the Government’s information that the provision requiring an employer who employs fewer than five employees to keep records of the date of birth of any employee under the age of 18 years who is covered by Sectoral Determinations 6 to 14 in the private security sector, domestic worker sector, wholesale and retail sector, forestry sector, farm workers sector, and hospitality sector.

Part V of the report form. Application of the Convention in practice. The Committee notes that according to the statistical information provided by the Government, 16 cases of violations of child labour in the agricultural sector were registered, out of which 14 cases were investigated, six cases prosecuted, and a fine of 5,000 rand (ZAR) (US$672) was imposed in one case. The Committee also notes that according to the TPR of June 2008 of the TECL Programme, implemented by ILO–IPEC, the report and findings of the Labour Force Survey (LFS), carried out in March 2006 by Statistics South Africa, have been finalized which give an updated and comprehensive figure on child labour in the country. The Committee requests the Government to supply a copy of the report of the LFS survey of 2006. It also requests 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 reports of inspection services and information on the number and nature of violations detected involving children.

The Committee encourages the Government to take into consideration, before the adoption of the relevant regulations, the Committee’s comments on discrepancies between the national legislation and the Convention.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report. It requests the Government to provide further information on the following points.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. In its previous comments, the Committee had noted the various initiatives embarked upon to eradicate child labour in South Africa. The Committee notes the Government’s information that it has been reviewing and updating the departments’ responsibilities as outlined in the Child Labour Action Programme (CLAP), which is now known as the Child Labour Programme of Action (CLPA). It notes that a second draft of the CLPA has been discussed by the Implementation Committee and adopted in April–May 2007. Furthermore, according to the Technical Progress Report (TPR) of the ILO/IPEC Project Towards the Elimination of the Worst Forms of Child Labour (TELC), a major national awareness campaign on child labour is in full swing, including school outreach programmes, radio advertisements and extensive radio interviews. The Committee also notes that an ILO/IPEC action programme was implemented in 2006 to study the effects of excessive water fetching on children and their education. Finally, the Committee notes the adoption of the first part of the Children’s Act, No. 38 of 2005, which covers issues over which the national Government has jurisdiction, and which aims to eventually replace the Child Care Act. The Committee takes due note of this information and requests the Government to continue providing information on national policy measures designed to ensure the effective elimination of child labour, and on the results attained.

Article 2, paragraph 1. Scope of application. Self-employment. The Committee had previously noted that both the Basic Conditions of Employment Act (BCEA) and the Child Care Act appeared to exclude self-employment from their application. It had noted the Government’s information that although currently there are no measures taken by the South African Government to extend the application of the Convention to include all types of work, including self-employment, the South African Government has a wide range of existing programmes aimed at directly and indirectly improving the situation of its children, such as poverty eradication programmes. The Committee had also noted the Government’s information that the matter of covering self-employment in the BCEA will be brought before the relevant stakeholders for consideration. The Committee notes that the National Department of Labour, in collaboration with the ILO, has established a Technical Task Team responsible for drafting legislation that adheres to the Conventions ratified by South Africa, including Convention No. 138 of the ILO. This Technical Task Team, which consists of eight members representing Government, workers’ and employers’ organizations, has developed a document with three categories in order to address the issues of child labour: (1) the summary of the legislation; (2) the draft legislation; and (3) guidelines for employers to adhere to the standards set by the legislation. The Committee requests the Government to provide information on whether the draft legislation has taken into consideration the Committee’s comments regarding the application of the labour laws to children who are self-employed. It furthermore requests the Government to supply a copy of the document prepared by the Technical Task Team, which was not attached to the Government’s report.

Article 3, paragraphs 1 and 2. Minimum age for admission to hazardous work and determination of hazardous work. Following its previous comments, the Committee takes note that section 141(1)(e) of the Children’s Amendment Bill [B19-2006] contains a general prohibition concerning hazardous work by providing that no person may encourage, induce or force a child, or allow a child, to perform labour that (i) by its nature or circumstances is likely to harm the health, safety or morals of a child; or (ii) places the child’s well-being, education, physical or mental health, or spiritual, moral or social development at risk. According to the Children’s Act, which the Children’s Amendment Bill aims to modify, a child is defined as being any person under the age of 18 years. Furthermore, the Committee notes the Government’s information, in its report under Convention No. 182, that the draft regulations determining the types of hazardous work were presented to the Advisory Council on Occupational Health and Safety for their consideration and endorsement. In this regard, the Committee takes note of the list of the 24 types of hazardous work prohibited to children under 18 years, provided by the Government in its report under Convention No. 138. It asks the Government to indicate which legal provision contains the abovementioned list.

Article 3, paragraph 3. Exception to the age of 18 years for admission to hazardous work. In its previous comments, the Committee had noted 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 that the Department of Labour was in the process of drafting regulations pertaining to children between 15 and 17 years. The Committee had expressed its hope that the Government, in adopting the regulations pursuant to section 44 of the BCEA, would take into consideration that the performance of types of hazardous work is only authorized for young persons between 16 and 18 years of age, in accordance with the requirements of Article 3, paragraph 3, of the Convention. The Committee requests the Government to provide more detailed information on whether the draft legislation prepared by the Technical Task Team, mentioned in the comments above, deals with the authorization for young persons between 16 and 18 years of age to perform certain types of hazardous work. If so, the Committee asks the Government to indicate whether the said draft legislation has taken into consideration the requirements of Article 3, paragraph 3, of the Convention.

Article 7. Light work. The Committee had requested 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. The Committee had noted that, even though South African domestic employment law prohibits the employment of children below the age of 15 years, the CLAP reported that 728,000 (6.8 per cent) children aged 5–14 years were found to work three hours and more per week, and 266,000 (2.5 per cent) to work 12 hours and more per week.

Noting the absence of information on this point, the Committee once again recalls that the specified minimum age for admission to employment or work in South Africa is 15 years. It reminds the Government that, by virtue of Article 2, paragraph 1, of the Convention, no one under 15 years of age shall be admitted to employment or work in any occupation. It also recalls that, by virtue of Article 7, paragraphs 1 and 3, of the Convention, national laws or regulations may permit persons from the age of 13 years to engage in light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the authority or their capacity to benefit from the instruction received. 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 asks the Government to specify whether the necessary steps to regulate light work were taken within the framework of the draft legislation prepared by the Technical Task Team, mentioned above. Moreover, while noting the absence of regulation of light work in the current relevant legislation, the Committee is nonetheless of the view that the admission of children from 13 years to perform light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, will permit them to help their parents in undertakings, mostly in the rural areas, while also enabling them to attend school. Therefore, the Committee strongly encourages the Government to include provisions regulating light work in the relevant legislation, in accordance with Article 7 of the Convention, if it has not already been done in the draft legislation prepared by the Technical Task Team.

Article 9, paragraph 3. Registers of employment. The Committee had previously noted that section 31 of the BCEA requires every employer to keep a record containing a list of information on his/her employees, including the date of birth of any employee under 18 years of age. It had noted, however, that according to section 28 of the BCEA, section 31 does not apply to an employer who employs fewer than five employees. The Committee had noted the Government’s information that the Sectoral Determination on the small business sector regulates this provision. Noting the absence of information on this point, the Committee once again requests the Government to indicate whether the Sectoral Determination on the small business sector requires the employer to keep registers containing the names, ages and dates of birth of persons whom he/she employs or who work for him/her and who are less than 18 years of age, in conformity with Article 9, paragraph 3, of the Convention.

Part V of the report form. Application of the Convention in practice. The Committee takes note of the child labour statistics provided by the Government for 31 March 2006 to 1 April 2007. According to those statistics, seven violations of the legislation concerning hazardous work and 12 violations for domestic labour have been reported after inspection. Furthermore, 13 cases have been recommended for prosecution, two defendants have been found guilty, and six cases are currently proceeding in courts. The Committee also notes that, according to the TPR of March 2007 of the TECL Programme, implemented by ILO/IPEC, updated national data on child labour is expected from the Labour Force Survey (LFS) that was run in March 2006 by Statistics South Africa (StatsSA). The LFS has collected information about respondents aged 10 and above and included a section of questions specifically focusing on child-labour-related issues. The Committee 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 reports of inspection services and information on the number and nature of violations detected involving children. Moreover, the Committee requests the Government to supply a copy of the LFS survey run by StatsSA once it is finalized.

The Committee also requests the Government to keep it informed of progress made in enacting the draft labour legislation prepared by the Technical Task Team. In this regard, it hopes that due consideration will be given to all the outstanding comments made by the Committee.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes the Government’s statement that, since 1995, South Africa has committed itself to the eradication of child labour. The signing of the MOU with the ILO in 1998, the SAYP of 1999, and the CLAP of 2003, are examples of initiatives embarked upon to eradicate child labour. In conjunction with these processes, a multi-sectoral and interdisciplinary child labour enforcement strategy was developed in 2002, and inspectors of the Department of Labour and other key relevant role players were trained nationally. It also notes the Government’s statement that the South African child rights programming institutional framework has undergone transformation. As a result of the process of transformation, finalized at the beginning of 2005, the National Programme of Action is now referred to as the National Children’s Rights Advisory Council, which consists of all national government departments and civil society. Moreover, in June 2003, the Child Labour Action Programme Implementation Committee (CLAPIC) was formed in order to intensively drive the process of finalizing the Child Labour Action Programme (CLAP). Members of CLAPIC include the Departments of Labour, National Treasury, Office on the Rights of the Child, Social Development, Health, Youth Commission, Agriculture, organizations of community and development interests, organized business and organized labour. The role of CLAPIC is to ensure that departments represented on the structure implement the action steps that they identified as their contribution towards eliminating child labour. The Committee takes due note of this information and requests the Government to continue providing information on national policy measures designed to ensure the effective elimination of child labour, and on the results attained. 

Article 2, paragraph 1. Scope of application. 1. Self-employment. In its previous comments, the Committee had noted that both section 43(1) of the Basic Conditions of Employment Act (BCEA) and section 52A of the Child Care Act prohibit the employment of a child under 15 years. It had noted, however, that both the BCEA and the Child Care Act appeared to exclude self-employment from their application. The Committee had asked the Government to indicate 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 notes the Government’s statement that child labour is a complex and multidimensional phenomenon which is a result of many varied factors such as poverty, high adult unemployment rates, and the increase in the number of child-headed households due to the escalation of HIV/AIDS. It is therefore inevitable that children will consider self-employment as a means of survival for themselves and their families. It notes the Government’s information that, although currently there are no measures taken by the South African Government to extend the application of the Convention to include all types of work, including self-employment, the South African Government has a wide range of existing programmes aimed at directly and indirectly improving the situation of its children, such as poverty eradication programmes. The Committee also notes the Government’s information that the matter of covering self-employment in the BCEA will be brought before the relevant stakeholders for consideration.

The Committee asks the Government to provide information on any relevant impact of the range of programmes aimed at directly or indirectly improving the situation of self-employed children, including the measures envisaged in the Child Labour Action Programme (CLAP) of 2003 on reducing the number of self-employed children under 15 years. It also asks the Government to provide information on any steps towards the inclusion of self-employment in the BCEA. The Committee finally asks the Government to provide information on the situation of self-employed children, in particular with regard to their age, number and the types of work they undertake, as well as their involvement in types of hazardous work.

2. Employment on merchant vessels. The Committee had previously noted 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 of 1951 (Act No. 57) is applicable. The Committee had requested the Government to indicate the national legislation that fixes the minimum age for admission to employment or work. The Committee notes the Government’s information that the Merchant Shipping Act fixes the minimum age for admission to employment on merchant vessels at 16 years. The Committee takes due note of this information.

Article 3, paragraph 2. Determination of hazardous work. The Committee had previously noted that, by virtue of section 85 of the Mine and Health and Safety Act of 1996, no person may cause or permit an employee under 18 years to work underground in a mine, and no employee under the age of 18 may work underground in a mine. The Committee had also noted the Government’s information that the Occupational Health and Safety Act prescribes the circumstances in which children should not work at all. It noted the Government’s reference to a list of types of hazardous work prohibited to children under 18 years. The Committee had asked the Government to indicate which legal provision contains such a list and to supply a copy of it. The Committee notes that no information is provided in the Government’s report on this point. The Committee once again asks the Government to indicate whether any list of types of hazardous work which are prohibited for children under 18 years of age exists in the relevant legislation and to supply a copy thereof. If not, the Committee reminds the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of employment or work which, by their nature or the circumstances in which they are carried out, are likely to jeopardize the health, safety or morals of young persons under 18 years, shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist. It accordingly asks the Government to provide information on the measures taken or envisaged to determine the types of hazardous work in accordance with Article 3, paragraph 2, of the Convention.

Article 3, paragraph 3. Exception to the age of 18 years for admission to hazardous work. The Committee had previously noted 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. The Committee notes the Government’s statement that the Department of Labour is in the process of drafting regulations pertaining to children between 15 and 17 years. The terms of reference for the drafting were presented to the Employment Conditions Commission (ECC) in May 2005 and subsequently approved. The regulations will be drafted through a process of consultations with the organizations of employers and workers concerned and other relevant stakeholders and it is envisaged that consultations will be finalized in October/November 2005.

The Committee once again reminds the Government that, under the terms of Article 3, paragraph 3, of the Convention, national laws or regulations may, after consultation with the organizations of employers and workers concerned, authorize the performance of types of hazardous work by young persons between 16 and 18 years of age, on condition that the health, safety and morals of the young persons concerned are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity. It also recalls that this provision of the Convention consists of a limited exception to the general rule of the prohibition placed upon young persons under 18 years of age, and not a total authorization for the performance of types of hazardous work from the age of 16 years. The Committee therefore hopes that the Government, in adopting the regulations pursuant to section 44 of the BCEA, will take into consideration that the performance of types of hazardous work is only authorized for young persons between 16 and 18 years of age in accordance with the requirements of Article 3, paragraph 3, of the Convention.

Article 7. Light work. The Committee had previously noted that national laws do not allow the granting of exemptions for the employment of children between the ages of 13 and 15, as the employment of children of that age is expressly prohibited by national law. It had nonetheless noted that, according to the 1999 Survey of Activities of Young People (SAYP), quite a number of children under 15 years appeared to be economically active in some way or another. The Committee had requested 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. The Committee notes the Government’s information that, even though the SAYP of 1999 reveals that a number of children were economically active, South African domestic employment law prohibits the employment of children below the age of 15 years, and this includes the performance of light work. It notes the Government’s information that the children identified by the SAYP were compelled by economic circumstances to engage in some form of economic activity for survival purposes. However, the Committee takes note of the situation reported in CLAP that 728,000 (6.8 per cent) children aged 5-14 years were found to work three hours and more per week, and 266,000 (2.5 per cent) to work 12 hours and more per week. The Committee also notes that the majority of children aged 5-14 years found working come from deep rural areas.

The Committee recalls that the specified minimum age for admission to employment or work in South Africa is 15 years. It reminds the Government that, by virtue of Article 2, paragraph 1, of the Convention, no one under 15 years of age shall be admitted to employment or work in any occupation. It also recalls that, by virtue of Article 7, paragraphs 1 and 3, of the Convention, national laws or regulations may permit persons from the age of 13 years to engage in light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the authority or their capacity to benefit from the instruction received. 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 requests the Government to take the necessary steps to ensure that no children under 15 years are admitted to work. While noting the absence of regulation of light work in the relevant legislation, the Committee is nonetheless of the view that the admission of children from 13 years to perform light work which is: (a) not likely to be harmful to their health and development; and (b) not such as to prejudice their attendance at school, will permit them to help their parents in undertakings, mostly in the rural areas, while also enabling them to attend school. Therefore, the Committee strongly encourages the Government to include provisions regulating light work in the relevant legislation, in accordance with Article 7 of the Convention.

Article 8. Artistic performances. Following its previous comments, the Committee notes with interest the Government’s information that Sectoral Determination 10, regarding children in the performance of advertising, artistic and cultural activities, was promulgated in July 2004 pursuant to section 50(2)(b) in order to assist the Department of Labour with the employment of children under 15 years within the advertising, artistic and cultural industries. It notes the Government’s information that it is required by law that before engaging children in performances, employers must apply in writing to obtain a permit from the Department of Labour. In order to facilitate the processing of applications, an electronic system was automated by the Department of Labour. In addition, a national register is kept and updated on a monthly basis. The Committee notes the Government’s statement that, to date, a total of 1,261 applications have been processed involving 5,457 children in this sector. The Committee notes that Sectoral Determination 10 regulates conditions for the employment of children in the performance of advertising, artistic and cultural activities, such as: the stipulation of a written contract of employment with the parent or guardian of the child, specifying all data of the child and the conditions of work; regulations on payment; conditions and hours of work; and offences and penalties related to the inobservance of the Determination. The Committee takes due note of this information.

Article 9, paragraph 3. Registers of employment. The Committee had previously noted that section 31 of the BCEA requires every employer to keep a record containing a list of information on his/her employees, including the date of birth of any employee under 18 years of age. It had noted that, according to section 28 of the BCEA, section 31 does not apply to an employer who employs fewer than five employees. The Committee had accordingly asked 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. The Committee notes the Government’s information that the Sectoral Determination on the small business sector regulates this provision. The Committee requests the Government to indicate whether the Sectoral Determination on the small business sector requires the employer to keep registers containing the names, ages and dates of birth of persons whom he/she employs or who work for him/her and who are less than 18 years of age, in conformity with Article 9, paragraph 3, of the Convention.

Part IV of the report form. The Committee notes the Government’s information that, through training and support, inspectors of the Department of Labour are being empowered to present thoroughly investigated and researched cases before the courts in order to ensure a successful prosecution and conviction of offenders. It notes the Government’s information that one case was investigated in the north-west farming sector regarding the owner of a farm in the Tosca area. He was found guilty and fined 15,000 rands in the Vryburg Magistrates Court for using children as labourers. The Committee asks the Government to continue providing information on any decisions handed down by courts of law or other tribunals involving questions of principle relating to the application of the Convention.

Part V of the report form. In its previous comments, the Committee had expressed its concern at the situation reported in the SAYP in 1999 that more than 2 million children between the ages of 5 and 14 years are in paid labour. The majority of these children work in subsistence farming, trade, commercial agriculture and services. The Committee notes the Government’s statement that the Government of South Africa concurs that additional research should be conducted as a matter of urgency in order to ascertain what the picture of child labour looks like in the country. Discussions are under way within the Government in respect of collecting data on children’s rights issues, including child labour. It notes that according to CLAP, a follow-up to the SAYP should be done as soon as possible to assess the changed situation, especially in the context of the HIV/AIDS pandemic, and to assist with monitoring and evaluation. The Committee notes the Government’s information that the Department of Labour conducts blitz inspections of child labour. The last blitz inspections were conducted in 2005. The Committee 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 inspections services and information on the number and nature of violations detected involving children. 

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

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.