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South Africa's supplement to the Initial Country Report
of January 2000 is a follow-up to the Initial Country Report of November
1997.
The questions (issues) here were posed by the UN
Committee on the Rights of the Child as update and further clarification
to the 1997 Initial Country Report.
The Reporting was as follows; -
The Initial Country Report of November 1997 was
submitted to the UN Committee on Child Rights
The NGO's then submitted their First Supplementary
Report in May 1999. |
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NGO's then made their presentation to the Committee in
Geneva
The Committee then posed questions to the government. This publication is then a response to the questions raised by the Committee to government.
GENERAL MEASURES OF IMPLEMENTION
With regard to information provided in paragraphs
8, 13 and 14 of the report, please outline the activities undertaken by
the South African Law Commission to facilitate a review of domestic
legislation and the harmonisation of customary law as it relates to the
Convention. Please also describe the role of customary law in South
Africa and highlight the inconsistencies with the Convention.
Please outline the measures taken or envisaged to ensure the
adoption and implementation of the legislation listed and pending in
paragraph 10 of the report.
Domestic Legislation and Customary Law
1.1 As part of its investigation into customary law
(Project 100), the South African Law Commission is undertaking research
with a view to law reform into the following two areas of domestic
legislation and the harmonisation of customary law as it relates to the
Convention on the Rights of the Child:
In December 1998 an
investigation into customary marriages by the South African Law Commission
culminated in the passage of the Recognition of Customary Marriages Act
120 of 1998. The Act
recognises African customary marriages as valid marriages for the first
time; it also sets the age for marriage at 18 years for both sexes; makes
consent a prerequisite for marriage; and guarantees the wife’s contractual
and proprietary capacity and her right to litigate unassisted.
Curbs are placed on polygamy by the requirement to protect the
property rights of the existing wife, and divorces are to be ordered by a
court of law, which will have jurisdiction to award custody and
maintenance.
The second leg of the
investigation deals with Succession and the Administration of Estates in
Customary Law. This is an attempt to address the commitment of the
government to enact new legislation granting women and girl-children
living under customary law property and inheritance rights.
The patriarchal nature of the African family necessarily means that
succession runs along the bloodline and women and girls are excluded from
inheritance in the intestate estates of their husbands or fathers.
The reality in practice is that women and children are left
destitute when the spouse and father dies intestate.
The position of children in
customary law is being dealt with as part of the investigation into the
Review of the Child Care Act.
1.2
Customary law is an equal component of the South African legal
system. In terms of section
211(3) of the Constitution, the courts must apply customary law when that
law is applicable, subject to the Constitution and any legislation that
specifically deals with customary law.
The Constitution also guarantees, as a fundamental right, the right
to freedom of conscience, religion, thought, belief and opinion.
This does not preclude legislation recognising marriages concluded
under any tradition, or a system of religious, personal or family law, or
systems of personal and family law under any tradition, or adhered to by
persons professing a particular religion, provided recognition is
consistent with the provisions of the Constitution (sections 15(1) and (3)
of the Constitution).
The Law Commission is aware of
the necessity of considering customary law affecting children in the
context of the shift from a small-scale, largely rural and communal
society to an urban, industrialised and individualistic society.
This shift in the social order has been accompanied by the
dislocation of the extended family and corresponding shrinkage of the
network of kin available for the care and protection of a child to the
biological parents or, in a large number of cases, to the mother alone.
However, it is important to
note that the Convention on the Rights of the Child impliedly proceeds
from the idea of the child as an individual with enforceable rights
against the State, the community and the family.
This is in potential conflict with the traditional African world
view and value system, which focuses on the interests of the family group
or household, and treats the child as a member of that household, the
individual child's interests often being subsumed under those of the
family or household as an integral societal structure.
The concept of a
child/minority in customary law
Customary law does not have a
clear definition of a child or precise rules as to when childhood ends and
adulthood commences. Whereas
the Constitution and the Convention on the Rights of the Child provide
that a child is any person under the age of 18 years, the progression from
childhood to adulthood in customary law is not dependent on chronological
age, but is rather determined in phases, not only by physical and
intellectual maturity, but also by initiation, marriage, and the formation
of a separate household. And,
while an African male reaches full maturity under customary law to manage
his own affairs and to participate in the political life of his community
only when he gets married and establishes his own family home, African
women are deemed to be perpetual minors in customary law.
Although, as rites of passage performed to mark a
change in status and position, initiation ceremonies are not in principle
objectionable, such ceremonies may nevertheless have adverse effects upon
children. Firstly, the time spent on the ceremony may interfere with a
child's education and secondly, the physical effects of initiation
procedures may be harmful to a child's health or even fatal.
Legitimacy of children in
customary law
In general terms, the position
of a mother determines the position of a child in the family group.
A child is born to the mother's house and the child's status
remains the same, irrespective of subsequent changes to the mother's
status (e.g. divorce, widowhood, separation from her husband etc).
Thus, where the mother is married in a monogamous customary union,
as she belongs to the father's house, so too is her eldest son normally
the heir and successor to his father; in a polygamous household, the first
wife is usually the chief wife and her eldest son the general heir and
successor. Out-of wedlock
(adulterant) children born to a woman married by customary law 'belong' to
her husband, and the natural father has no rights to the child.
Children born to a widow of an ukungena relationship with one of
her late husband's heirs 'belong' to her house and thus to her late
husband's heir. Children of
an unmarried woman are members of their mother's family group and are
subject to the family head of that group (they become members of their
maternal grandfather's family house).
An illegitimate son cannot inherit from either his natural father
or from his mother and, in the maternal grandfather's family home, he will
only succeed if there are no other male successors at all.
Therefore, although adulterate
and 'illegitimate' children are not discriminated against in customary law
in respect of maintenance and the provision of bride wealth, distinctions
do remain in the field of succession.
It can be argued that these distinctions infringe the child's right
to equality and non-discrimination entrenched in both the Constitution and
the Convention on the Rights of the Child.
“Guardianship” and “custody”
of children under customary law
Provided bride wealth has been
paid the husband and his family group have full parental rights to any
children born to a wife during marriage.
The courts proceed from the assumption that, upon divorce, fathers
will retain their children (or using common law terminology, that
guardianship of a child will remain vested in his or her father).
The allocation of custody of a child upon divorce is determined by
the best interests of the child.
Except in cases involving young children, where mothers are assumed
by the courts to be better suited to be custodians, it appears that any
person who alleges that it would be in the child's interests not to remain
in the father's custody bears the onus of proving that the father is not a
fit and proper person. These
rules are not in all respects consistent with the paramouncy of the 'best
interests of the child principle' in all matters concerning children, as
required by the Constitution and the Convention on the Rights of the
Child.
Transfer of parental “rights”
over children under customary law
In customary law 'adoption' is
a private arrangement involving only the two families concerned and is
usually resorted to in order to provide an heir for a family head who has
no male progeny. The child in
question is usually the offspring of a kinsman.
Nevertheless, children given in adoption do for all intents and
purposes become the child of the adoptive parent, provided that the
customary law formalities are observed.
Payment is sometimes made to
compensate the natural parents for rearing the child, raising the question
whether customary adoption infringes the common law (and statutory)
prohibition on trafficking in children.
Secondly, the private nature of customary adoption does not adhere
to the common law policy (also entrenched in statute) that adoption must
take place under state supervision.
It has, however, been argued that, in view of the recognition in
the Constitution of customary law as a system of law, there is no reason
why recognition should not be given to an adoption under customary law.
Fostering of children is
common in African countries - children are placed in the care of persons
other than their biological parents for a variety of reasons.
In all these cases, there is the intention that the child will
eventually return to his or her own parents, so there is no severing of
relationships with the biological family.
The child retains his or her original legal status, family name and
rights and duties acquired at birth, and acquires no legal rights in the
home of the foster parent. Conversely, the foster parent has no legal
rights or duties towards the child under customary law. This is quite
different from the consequences of a foster care placement in terms of the
Child Care Act, 1983.
The customary law giving of
"isondlo" must not be confused with maintenance. Isondlo denotes
the giving of a beast to compensate the recipient for the rearing of a
child. An unmarried woman's guardian may claim a fine for her first and
second pregnancies from the child's natural father. Once he has paid this
fine, the natural father may claim parental rights to the child and, if he
pays a further beast as isondlo, he is entitled to custody.
The payment of isondlo thus
results in a transfer of parental rights.
However, in at least one case, the court has extended the scope of
isondlo to include monthly payments of maintenance, thus making the
relationship of this customary law institution to maintenance uncertain.
It has also been argued that the giving of isondlo amounts to the
buying of children.
Capacity to own and administer
property
Children, i.e. all persons who
are not yet deemed to be independent heads of households, have no capacity
under customary law to own and administer property. The family head holds
property for the benefit of the members of the family group - all property
(including the earnings of minor inmates and whatever property they may
acquire) goes into the communal pool and is administered by the family
head in the interests of the members. The family head's 'right' to
property thus imposes on him an obligation to care for the whole family
and to provide bride wealth for his sons.
While the customary law idea
of property is suited to a rural, subsistence economy, the family head's
control over property may, in the modern market economy, operate to the
detriment of economically active children.
It must, however, be remembered that all minors are denied full
control of property - the difference is that at common law this is
justified by the idea that minors are lacking in judgement and in need of
protection, while in customary law a minor's property is pooled for his or
her own benefit and that of the family group.
It is therefore not a foregone conclusion that proprietary
incapacity of minors under customary law necessarily violates the equality
principle in the Constitution.
Contractual capacity and
capacity to litigate
A child's lack of proprietary
capacity is complemented by a corresponding lack of contractual capacity
and capacity to litigate.
This may work to the disadvantage of children if they are incapacitated
beyond a reasonable period of time.
This could be solved by making it clear that any fixed age for the
termination of minority (presently contained in the Age of Majority Act,
1972) applies to persons subject to customary law.
Moreover, in terms of section 11(3) of the Black Administration Act
38 of 1927, children subject to customary law have common law capacities
to contract and to litigate in respect of rights or obligations arising
out of the common law. The
effect of this provision is to subject children to customary law
incapacity only for purposes of typically customary transactions, such as
bride wealth.
Maintenance
Under traditional customary
law, the rule is that all children belonging to a family group are
guaranteed support within the group and by all its members acting jointly.
The duty to support a child is not seen in an abstract sense and a
family head might thus find it difficult to accept that he has to make
cash payments to support a child who is not living with him.
Therefore, although the Maintenance Act 23 of 1963 is applicable to
persons subject to customary law, it is notoriously difficult to enforce
in a customary law context. The enforcement of maintenance obligations and
reform in this sphere of the law is the subject of another South African
Law Commission investigation (Project 100).
1.3
The measures taken or envisaged to ensure the adoption and
implementation of the legislation listed as pending in paragraph 10 of the
report.
(a)
The Powers of Natural Fathers of Extra-marital Children Bill (1997)
was passed as the Natural Fathers of Children Born out of Wedlock Act 86
of 1997. The Act was assented to on 26 November 1997 and commenced on 4
September 1998. The Act has since been amended by the Adoption Matters
Amendment Act 56 of 1998.
(b)
The Divorce Courts Amendment Bill (1997) was adopted as the Divorce
Courts Amendment Act 65 of 1997. The Act was assented to on 13 November
1997 and commenced on 6 April 1998.
(c)
The Assessors Bill (1997) was incorporated in the Magistrates’
Courts Amendment Act 67 of 1998. This Act was assented to on 28 September
1998. The date of
commencement of the Act is to be proclaimed.
(d)
The Witness Protection Programme Bill (1997) was adopted as the
Witness Protection Act 112 of 1998. The Act was assented to on 19 November
1998 and the date of commencement is to be proclaimed.
(e)
The Establishment of Family Courts Bill (1999)
(f)
The Maintenance Amendment Bill (1997) was adopted as the
Maintenance Act 99 of 1998. The Act was assented to on 19 November 1998
and its proposed date for implementation, with the exception of sections 5
and 7(1)(d) and (2) is 26 November 1999.
(g)
The Criminal Procedure Second Amendment Act 85 of 1997 affected
certain amendments to the Criminal Procedure Act, 1997. The amendments
relate to the regulation of detention of arrested persons, of bail
proceedings and imposed certain minimum sentences for certain serious
offences. The Amendment Act was assented to on 26 November 1997 and it
commenced on 1 August 1998.
(h) The Higher Education Bill (1997) was adopted as the Higher Education Act 101 of 1997. The Act was assented to on 26 November 1997 and commenced on 19 December 1997.
QUESTION 2
Please provide additional information on the relationship between
the National Programme of Action Steering Committee, the National
Children’s Rights Committee, the Inter-Ministerial Core Group, and the
South African Human Rights Commission.
Additionally, please also outline the activities undertaken by
these agencies and institutions to facilitate the co-ordination,
implementation, monitoring and evaluation of child rights programmes,
policies and legislation, including at the provincial and community
levels. Further, please
provide information on the level of resources (including financial, human
/ and / or technical) allocated for the functioning of these agencies.
It is generally accepted that
one of the most efficient mechanisms for co-ordination of policies and
programmes is through a partnership between government and civil society.
Prior to the elections in 1994, civil society played a significant role in
this regard, but since the first democratic elections, the responsibility
for co-ordination has shifted from civil society to government. Government
has accordingly initiated a number of mechanisms to give effect to its
international commitments. These include the Inter-Ministerial Core Group
(IMC) and the National Programme of Action Steering Committee (NPASC).
The IMC was a group of key
Ministers responsible for children’s issues and services. During the
second term of office of the democratic government, a decision was taken
that the IMC should be disbanded and the NPA should report directly to the
Social Cluster, which is a Cabinet Committee responsible for all social
issues. This was to elevate the stature of the NPA and to allow for direct
reporting to Cabinet through the Minister in the Presidency. This is also
in line with the fact that the NPA’s co-ordination has been moved from the
Department of Health to the Office of the Presidency, in a unit called the
Office on the Status of the Child. A Director heads this Office.
Because the NPA framework was specifically developed as
a process for mainstreaming goals for children, co-ordination through a
central office is appropriate. The NPA has a technical Steering Committee,
which is a co-ordinating and monitoring body. The Steering Committee has
the responsibility for developing and co-ordinating the implementation of
the NPA. It is made up of the directors-general (or their assigned
representatives) of all the relevant departments, representatives of the
nine provincial governments, together with representatives of the National
Children’s Rights Committee (NCRC), the South African Human Rights
Commission (SAHRC), the Youth Commission and UNICEF. The NCRC and the
SAHRC are part of all activities of the NPA.
The NCRC co-ordinates the Advocacy arm of the NPA.
Along with the Steering Committee, there are priority
area groups, which promote inter-sectoral collaboration. There are also
four project groups – Communication and Information; Advocacy,
Participation and Mobilisation; Research, Policy Review, Reporting and
Evaluation; Data Collection and Monitoring – made up of government
departments, NGOs, Commissions and members of civil society. The NPA
itself is tasked with co-ordinating policy and services earmarked for
children (see Appendix A). The key functions of the NPA are to co-ordinate
policy development, monitor implementation of that policy and to evaluate
programmes earmarked for children.
Resources
The NCRC is a non-governmental organisation funded
outside of the government. The NPA has a national structure and structures
in all nine provinces. The NPA, at a national level, is funded by the
budget from the President’s Office. In provinces it is located mainly in
the Welfare and Population Development departments. The funding is drawn
from these departments. Donor funds are also used for specific NPA
activities.
Human resources are located within the various
departments. The NPA is not a stand-alone programme and does not have its
own programmes. The programmes are mainstreamed within government
departments.
The SAHRC has provided resources towards providing
direct services towards dealing with complaints about violations of child
rights. Most programmes carried out by the SAHRC are done so with the
Commission’s resources. Others were supported by outside donors.
Human resources for the SAHRC consist of a commissioner
responsible for child rights nationally; staff of the Commission in
various departments namely; Legal, Research and Advocacy Departments;
provincial commissioners responsible for work at provincial level as well
as staff in four provincial offices of the nine provinces of the Republic.
See Appendix A for an assessment of the NPA: 2000 and
Beyond
See Appendix B for more detail on the Human Rights
Commission
QUESTION 3
Please indicate whether the South African Human
Rights Commission handles complaints of children whose rights have been
violated and if so, please provide examples of its work in this regard. Additionally, please describe the measures taken and/or
foreseen to increase awareness, particularly among children, about the
availability and use of this complaint mechanism.
Handling of Complaints of Children who have been
Violated
The Commission conducts a variety of studies. Recently,
a major study on racism in schools was conducted, and a national
conference to explore practical ways of dealing with racism in schools was
organised. Another study
conducted was at a place of detention in the Western Cape as well as at a
school for children living with autism.
The SAHRC is in the process, in collaboration with the
CARAS Trust Foundation, of conducting anti-racism training for its staff.
This will culminate with similar training programmes for schools.
Another investigation was carried out into a school for learners with
disabilities.
The initiatives of the Commission over the past two
years are set out under the prescribed mandate of the Commission, namely,
promoting, protecting and monitoring human rights.
For purposes of this report, initiatives specific to child rights
are reported on.
The Child Rights Committee of the South African Human
Rights Commission was appointed in terms of section 5 of the Human Rights
Commission, Act 54 of 1994. The committee consists of child rights
activists and professionals who advise the commission on various issues
and support its work on child rights.
Recognising the need to develop effective and efficient
mechanisms for children, the SAHRC has initiated an investigation to
determine why mechanisms developed to deal with the problem of child
sexual abuse do not work in the interest of children. It is hoped that
this investigation will provide indications of systemic problems on which
the Commission can make recommendations for changes. The investigation
will go on into the year 2000 when public hearings will be held to gather
more information from the providers and users of services.
QUESTION 4
Please indicate whether indicators have been
developed and desegregated data collected on the status of children,
especially the most vulnerable groups.
Further, please describe the extent to which these indicators and
data are used in the formulation of policies and programmes for the
effective implementation of the Convention.
Indicators and Desegregated Data
Indicators have been developed, and there are a number
of current initiatives for the collection of desegregated data on the
status of the child, particularly the most vulnerable group.
A Children’s Statistical Newsletter covers progress in
compiling statistics on children, report on databases held by researchers,
NGOs, CBOs etc. The issues are bi-monthly and are a collaborative effort
between Stats SA, South African Data Archives and the Office on the Status
of the Child in the Presidency. It is a tool for the building of the
decentralised database.
QUESTION 5
In the light of article 4 of the Convention,
please specify the percentage of the national budget allocated to
children’s programmes, including in the health, education and social
welfare sectors, and indicate whether there is an intention to increase
the allocation to the maximum extent of the available resources?
In light of information provided in paragraph 21 of the report,
please also provide additional information on the extent to which
international co-operation is used for children’s programmes.
Please also provide an update on the South African Children’s
budget study launched in relation to the
First Call for Children and indicate whether any of the
recommendations form this study have been implemented.
Percentage of National Budget for Children’s Programmes
Expenditures
DEFINITION OF THE CHILD
QUESTION 6
Please describe the measures taken and / or
foreseen to raise the legal minimum age for criminal responsibility.
Further, please indicate whether the state party envisages
increasing the legal minimum ages for marriage and sexual consent of girls
to the equivalent of that for boys. In light of information provided in
paragraphs 51-52 of the report, concerning the definition of the child,
please provide information on the measures taken to ensure consistency
between domestic law and common law and with the Convention.
6.1 Disseminating the CRC
The President’s State of the Nation’s Children Report,
to be launched in March/April 2000, along with a photography exhibit
depicting the lives of children will further highlight children’s rights
in South Africa.
Government departments are also involved in public
awareness campaigns as they pertain to their departments. In most
departments, public outreach and training workshops are used to
disseminate relevant information. The Department of Justice, for example,
has embarked upon an extensive public awareness campaign, the purpose of
which is to educate and inform the child about her rights in relation to
the justice system.
SADC Conference
on the Elimination of Violence Against Women and Children.
The Department of Justice co-ordinated the SADC
Conference on the Prevention of Violence Against Women held in Durban on
5-8 March 1998. The Conference reaffirmed the commitment of SADC countries
that ratified CEDAW on the implementation of General Recommendation No.19
of CEDAW that recognises that Violence Against Women is a form of
discrimination against women and children. At this conference the adoption
of certain measures was recommended and the Department committed itself
to:
Ensuring that the human rights of women and children
are promoted and protected within the Department and the criminal and
civil justice system;
Ensuring that women and children have the right:-
to the
security and freedom of the person;
not to be
subjected to any form of violence or abuse;
not to be
subjected to any form of discrimination on the basis of their gender;
to ensure
that women and children have practical access to justice;
to be
treated by the criminal justice system in a way that takes account of and
is
sensitive to their diverse needs; and
to
facilitate the implementation of substantive equality clauses entrenched
in the Constitution and
the human rights instruments ratified by South Africa in so far as
they impact on children and gender.
6.3
16 Days of Activism on No Violence Against Women and Children
The sixteen days of activism formed part of ongoing awareness
activities on violence against women and children. Other activities have
included a popular summary of the draft bill on domestic violence, open
court days and outreach through various media with emphasis on the radio.
The Domestic Violence Act was one of the key focal points in the 16 Days
of Activism.
6.4
The Train Campaign: Blow the Whistle on Violence Against Women and
Children
Activities during
Constitutional Week
The government launched an
educational campaign on Violence against Children on 26 April 1998.
Government personnel distributed posters and pamphlets to schools
and information sessions were also held where judges, magistrates and
prosecutors participated.
Two posters were developed.
One poster focussed on child abuse in general and the protection of
children’s rights to safety and the other poster focussed on Violence
against the Girl Child and the protection of the girl child. The campaign
culminated on 10 May 1998.
Maintenance Issues
The issue of maintenance has been another key area of
focus in the work of the government. Initial focus was on facilitating the
fast tracking of the Maintenance Act. Other initiatives included the
development and launch of a maintenance pamphlet targeting mindsets, and
the launching of a communication campaign on the Act and pamphlet in June
1998.
The Department also compiled a
video presenting information on the new Maintenance Act.
This video will be distributed to all the sub-offices and
magistrate courts, where it will be shown in the waiting rooms. It is also available to be used by NGOs, for presentations to
the public.
National Policy
Guidelines on Victims of Sexual Offences
These Policy Guidelines
together with a victim brochure has been developed and distributed during
1998. The guidelines are utilised by service providers in the criminal
justice system to promote an efficient, effective and responsive service
delivery to victims of sexual violence.
They also promote the reduction of secondary victimisation often
experienced by victims of sexual offences within the criminal justice
system.
Violence Against Children
Extensive outreach/awareness
raising campaigns on Children and the Law has also been launched. The government has spearheaded an educational campaign on
violence against children. The outreach initiative on children has also
focussed on general awareness of the law, the administrative process and
its implications for the human rights and well being of children.
Government developed and
launched an information kit entitled “Law Talk for Children: Play Your
Part”. The information kit/booklet educates children about their rights
and responsibilities on how the legal system works and how the courts
protect the rights of children. The booklet has been distributed to
various NGO’s and CBO’s that work with children. There are firm plans from
government to use this booklet as part of the school curriculum.
The Law Talk for Children
programme has also included an art campaign that involves school-going
children. Schools are selected where children there in take part in an art
competition based on their understanding of the justice system.
Another initiative that has
been launched is “Busi goes to court”.
This is an information booklet, in the format of a colouring book,
which explains all the procedures children will encounter within the
criminal justice system. It
also explains the roles and duties of the various court officials.
Child Protection
Week
The government is planning
activities pertaining to Child Protection Week countrywide, during the
week 31 May to 6 June 1999, with specific emphasis on 1 June 1999.
The theme of the week is: “I’m a Cool Kid - Respect me, Protect me,
Care for me, Educate me, Listen to me”. Government departments will take
responsibility to promote specific sub-themes.
This is the second child protection week held in the country.
Art Competitions
The target group for these
competitions is schools, grades 4 to 7.
Through awareness raising campaigns, the children are informed
about their rights and responsibilities, which entails their role in the
community and schools.
Training for all relevant officials in the Department
of Justice is also viewed as a priority in ensuring improved and effective
service delivery. Justice College, a government training institute,
already offers training on substantive and procedural law relating to
violence against women and children. In this regard, prosecutors and
magistrates among others, receive training on how to deal with violence
against children and women.
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