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3.1.1 Throughout the world there is a general awareness that child abuse and neglect is a serious and growing problem. However, as recently reflected in the media,[19] the rate of child abuse in South Africa is appalling.[20] Furthermore, existing services dealing with sexual offences are fragmented, under-resourced or non-existent. Large parts of the country and especially the rural areas are under serviced. The standards of services vary greatly and there is a shortage of suitably qualified and trained staff. Organisations experience serious financial difficulties.
3.1.2 Because there are no policy guidelines regarding management protocol, there is no guarantee that a child entering the system will be dealt with in terms of the acceptable procedures or protected against further abuse. No co-ordinated and comprehensive prevention and management strategies exist. Consequently there is no guarantee that abused or neglected children will receive adequate service, and the risk of the child being abused in the system (secondary abuse) is very high.
3.2.1 The figures on prevalence are staggering: In 1996, the Child Protection Unit (CPU) alone dealt with 35 838 cases of crimes against children, which represents an average increase of 36% per year since 1993.[21] During 1995 to 1996, the officially reported cases of
3.2.2 Many, if not most, reported cases are dealt with by structures other than the police, particularly the social services. Child Welfare Societies affiliated to the S A National Council for the Child and Family, which form only one of the relevant social service groupings, dealt with an average of 9 398 cases per month involving severe neglect (77%) or physical or sexual abuse (23%). Furthermore, it is a well-known fact that only a very small percentage of crimes against children are reported. Under-reporting and the lack of systematic research, co-ordinated record-keeping and a centralised register are all contributing factors causing the true extent of child abuse and neglect to be unknown.[22] Neither are there common definitions on which to base the collection of data.[23]
3.3.1 Given that many forms of child abuse and neglect are crimes, the relevant aspects of criminal law as well as the associated processes, procedures, structures and resources are crucial components of the child protection system. An overview of newspaper reports show that there is increased awareness in civil society of the phenomenon of child sexual abuse and the inadequacy of the legal and other systems that manage and interact with the sexually abused child and the child’s family. There have also been recent instances reported in the media of some communities taking the law into their own hands and effecting their own justice upon the sexual offender. These incidences highlights a justice system under threat.
3.3.2 Common law covers a wide range of criminal offences including homicide, physical assault, indecent assault, rape and incest, and is the basis for prosecution in offences against children as well as adults in such cases. There is no criminal offence labelled “child abuse”, “child sexual abuse” or even “child neglect” in South African law. Evidence is difficult to obtain, as the offence usually occurs in conditions of secrecy. The State’s case will often rest on the testimony of the victim alone, who frequently is a severely traumatised young child, and sometimes the evidence of the medical practitioner who conducted the medical examination of the victim. Such medical evidence is often non-existent.[24] Even if medical evidence exists, it does not necessarily link the victim to a specific offender. Furthermore, the physical effects of abuse are variable and depend very much on the nature of the abuse and the period over which that abuse has occurred.
3.3.3 The Sexual Offences Act, 1957 covers some specific aspects and forms of child sexual abuse, e.g. child prostitution, procuration or abduction of a minor for sexual purposes, conspiracy or fraud or the use of drugs or alcohol to involve a female victim in sexual activities, and sodomy. In addition, section 14 defines the age of consent, below which some forms of child abuse amount to statutory rape. Several of the relevant provisions of the Act are formulated in archaic terms unsuited to the present context, and or discriminate unfairly between male and female victims. In particular there is dissatisfaction about the discrepancy between the ages of consent applicable to males and females - i.e. 16 and 19 respectively. There is also a contradiction between the age of consent for girls in terms of this Act and the implication in section 14(b)(iii) of the Child Care Act, 1983 that a parent may be found “unfit” if he or she allows a child under eighteen years of age to be exposed to sexual activity. The Act does not address problems such as “sex tourism” which is growing in South Africa. In general the Act is considered to be defective in the protection it affords children.[25]
3.3.4 The Prevention of Family Violence Act, 1993 allows the presiding officer to grant an interdict preventing assaults or threats against an applicant or a child living with either the applicant or offender or both. An offender who contravenes such an order may be arrested. This Act is thus the basis for removing perpetrators rather than victims of child abuse from their homes. Many difficulties are, however, being experienced with the implementation of the Act which is not serving as effective a protective purpose for women as was hoped; it is in addition not in common use as a means specifically of preventing child abuse.[26] An ongoing reluctance in many police officers to involve themselves in issues of family violence is part of the problem, while bureaucratic delays and log-jams are further serious stumbling blocks.[27]
3.3.5 The Films and Publications Act, 1996 prohibits the production, possession and distribution of pornographic material depicting children who are younger than sixteen years, and provides for the protection of children from exposure to pornographic material. There is, however, concern about the role being played by the Internet in disseminating vast amounts of pornographic material for use by paedophiles, and there are calls for controls to be extended to this medium.[28]
3.3.6 It is an unfortunate fact that children (persons under the age of 18 years) also commit offences and even very serious offences. What is even more unfortunate is that our present criminal justice system is not catering adequately or is failing in its treatment of the juvenile offender. This aspect is dealt with in the Commission’s investigation into the juvenile justice system.[29]
3.4.1 Multiple problems are experienced when child abuse cases are brought to court. The special difficulties involved in the present system in obtaining convictions for crimes against children and the resulting collapse of cases lead to ongoing and sometimes heightened risk to the victim and to other children. These relate mainly to (a) the secondary abuse suffered by children who are required to give testimony[30] in adversarial courts which are designed for adults; (b) difficulties associated with the functioning of the courts, including lack of appropriately trained personnel at all phases of the investigative and judicial process; (c) the endless delays and remands due to the congestion of the court system; (d) problems experienced with the law of evidence; (e) the lack of independent (legal) representation for the child victim; (f) the absence of effective policies and procedures for bail and sentencing; (g) the lack of provision to enable victims and their families to survive and to ensure their safety if they pursue criminal charges; and (h) lack of the backup resources needed to enable the courts to make orders which are in the best interests of children and their families.[31]
3.4.2 In cases of a child sexual abuse it is imperative that the child be examined as soon as possible by specialised health care workers to determine the nature of the child’s injuries. In order to protect their children from the secondary trauma of undergoing a medical examination immediately after sexual abuse, parents often refuse to consent to the medical examinations. In some instances, one of the parents is the perpetrator and it is unlikely that such a parent will readily consent to a medical examination. The circumstances under which parental authority can be waived needs to be clearly defined in law and the process needs to be simple and swift.[32]
3.4.3 The criminal law and the criminal procedure, as it currently stands, as a mechanism to protect children from abuse is to a great extent ineffective. Convictions are infrequent, and an acquittal may be seen by the perpetrator as a vindication of the legitimacy of his or her behaviour. This in turn makes therapeutic intervention impossible. Successful prosecutions, on the other hand, do not necessarily act as deterrents but tend instead to confirm the perpetrator in his or her “negative self-image” which is so common to sexual offenders. Finally, prosecutions divide families and what public interest may exist in seeing justice done will be outweighed by a disinclination to submit other people (and especially the breadwinner) to a punitive criminal process.
3.5 Problems with the Child Care Act, 1983 and the children’s courts
3.5.1 Many cases of sexual abuse of children take place in the intra-familial context. These cases then often form the subject of a children’s court inquiry in terms of the Child Care Act, 1983, as well as a criminal process.[33] It is also possible that child sexual abuse might come to light as part of a different judicial process, such as a maintenance hearing, a divorce matter, or at an application for custody or access. Furthermore, these processes might be conducted simultaneously or in parallel. Not only is guidance lacking as to what process takes preference, but it appears that the best interest of the child does not always take precedence. However, we accept that any policy changes suggested in this regard will have to dovetail with the proposed new Family Court structure.
3.5.2 Children’s court inquiries have their own problems. At the child’s first appearance in the children’s court, the commissioner will decide whether the child is to be the subject of an inquiry which may drastically affect his or her long-term future and, in the short-term pending the inquiry, the commissioner may well decide to have the child detained in a place of safety.
3.5.3 It is a matter of concern that the Child Care Act, 1983 does not afford a child (if old enough and otherwise competent) a clear right to describe his or her circumstances and wishes at both the “opening” and the inquiry should he or she wish to do so. This is an example of the lack of child-centredness in the Child Care Act, 1983.[34]
3.5.4 There are still some basic difficulties which arise with regard to the right to legal representation for children in Children’s Court inquiries.[35] Not only is legal representation still discretionary, but the guidelines for Commissioners of Child Welfare who do consider the issue of legal representation for children (which guidelines were included in the February 1996 draft), have been omitted from all subsequent versions.[36] Furthermore, a key legislative mechanism designed to test the efficacy of decision making in this regard, namely the court’s obligation to record reasons for not providing legal representation for a child, has also not been included in the final Act.[37]
3.5.5 Child commissioners who are particularly concerned about the serious interference with the rights of the child by the deprivation of liberty tend to allow a maximum of about eight weeks between the initial appearance and the date set down for the inquiry. The purpose of having a delay between the two dates is to allow the designated social worker to undertake an investigation into the child’s circumstances. Research has shown, however, that many commissioners do not insist upon an early date for the inquiry.[38] This leads to the situation that the time period between the commencement and the finalisation of the inquiry varies between eight weeks and approximately sixteen weeks, or even longer. Given the fundamental nature of a child’s right to liberty, any delay in finalising of court proceedings is a matter for serious concern.
3.5.6 This difference in approach by child commissioners underlies an even greater concern. Child commissioners are not specifically trained to deal with children or to solve problems within the family. This is not surprising considering that the majority of commissioners are drawn from the ranks of the magistracy.[39]
3.5.7 Even after the children’s court has made an order for the placement of a child, uncertainty about his or her future often remain. When the court has ordered that the child be sent to a children’s home or school of industries in terms of section 15(c) or (d) of the Child Care Act, 1983, respectively, the Director-General of Welfare has to find a place for the child in such an institution. Most unfortunately, it often takes the Director-General so long to find such a place that even after two years (the maximum period for which a children’s court order may run) the child is still awaiting placement. So serious and widespread has this problem become that section 15 of the Child Care Act, 1983, was drastically amended in 1991 to permit the Minister to effect a change to a children’s court placement in a home or a school of industries in order to try to facilitate some kind of long-term institutional accommodation as soon as possible.[40]
3.5.8 However, it would appear that those children who do manage to find a place in a home or a school of industries may not necessarily be better off. A recent report to Cabinet by the Inter-Ministerial Committee on Youth at Risk reveals the shocking state of affairs in many state-controlled places of safety which fall under the jurisdiction of the Department of Welfare.[41] Punitive disciplinary regimes, widespread use of isolation cells, unhygienic sanitary facilities, claims by children in all the residential facilities visited of physical and sexual abuse, render the inspection of such places and minimum standards of care imperative. Although the Act continues to provide for extension of the inspection procedures to state-run children’s institutions, the legislation does not really enhance the establishment of an effective, efficient and accountable monitoring system.[42]
3.6 Conclusion
3.6.1 From this brief overview it is clear that the investigation into sexual offences against children needs to address a multitude of problems. In order to solve these problems innovative and appropriate action is needed.
[19] “7 000 Children abused in 3 years” Sowetan, 4 September 1996, p. 2; “Staggering statistics on child and teenage sex” Pretoria News, 9 September 1996, p. 5; “Strategy to protect children from violence, rape and abuse” The Star, 11 September 1996, p. 2; “Child sex crimes on priority list” The Citizen, 11 September 1996, p. 10; “Child prostitution is on the rise - report” Pretoria News, 21 August 1996, p. 11; “The horror of child abuse” The Star, 23 August 1996, p. 16; “Paedophilia a growing business as both demand and secrecy escalates” The Star, 20 August 1996, p. 8.
[20] Evanthe Schurink “Statistics of shame: SA child protection system disintegrating” 1996 (4) In Focus Forum 6.
[21] See also, “Misdaad teen kinders styg 108%” Beeld, 8 April 1997 p. 2; “Child abuse ‘a disgrace’” The Citizen, 8 April 1997, p. 3; “Lenient treatment for child abuse offenders” Pretoria News, 10 April 1997, p. 7.
[22] Evanthe Schurink “Statistics of shame: South Africa’s child protection system disintegrating” 1996 (4) In Focus Forum 8.
[23] Levett “Contradictions and confusions in child sexual abuse” 1991 (4) SACJ 11.
[24] In most instances of indecent assault of children, no medical evidence is available. Sexual fondling of a child, for instance, leaves no physical injuries but may leave emotional scars.
[25] Protecting our Children: Blueprint for an effective national strategy on child abuse and neglect (third draft) p. 10.
[26] See also the Commission’s Discussion Paper 70 on Domestic Violence.
[27] Protecting our Children: Blueprint for an effective national strategy on child abuse and neglect (third draft) p. 10.
[28] Protecting our Children: Blueprint for an effective national strategy on child abuse and neglect (third draft) p. 11.
[29] Project 106: Juvenile justice.
[30] Including the question of whether children should direct evidence at all.
[31] Protecting our Children: Blueprint for an effective national strategy on child abuse and neglect (third draft) p. 11.
[32] See also section 39 of the Child Care Act, 1983.
[33] Only a limited number of criminal cases reported actually reaches the criminal trial stage.
[34] Carmel Matthias and Noel Zaal “Can we built up a better Children’s Court? Some recommendations for improving the processing of child-removal cases” 1996 Acta Juridica 53.
[35] Julia Sloth-Nielsen and Belinda van Heerden “The Child Care Amendment Act 1996: Does it improve children’s rights in South Africa?” 1996 (12) SAJHR 649 - 651. See also Carmel Matthias and Noel Zaal “Can we built up a better Children’s Court? Some recommendations for improving the processing of child-removal cases” 1996 Acta Juridica 56 - 58.
[36] Article 12.2 of the UN Convention on the Rights of the Child prescribes that children shall be provided the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. Article 37(d) of the same Convention inter alia provides that every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance. See also Article 4.2 and Article 17.2.(c)(iii) of the African Charter on the Rights and Welfare of the Child, 1990 for similar provisions.
[37] Julia Sloth-Nielsen and Belinda van Heerden “The Child Care Amendment Act 1996: Does it improve children’s rights in South Africa?” 1996 (12) SAJHR 650.
[38] Carmel Matthias and Noel Zaal “Can we built up a better Children’s Court? Some recommendations for improving the processing of child-removal cases” 1996 Acta Juridica 54.
[39] In terms of section 6(1) of the Child Care Act, 1983 every magistrate shall be a commissioner of child welfare for the district of which he or she is a magistrate.
[40] Carmel Matthias and Noel Zaal “Can we built up a better Children’s Court? Some recommendations for improving the processing of child-removal cases” 1996 Acta Juridica 60: “It is a sad reflection on the overloaded state institutions for children, and also on the efforts of those who work under the Director-General of Welfare and Population Development, that such provisions should be thought necessary. Sections 15(5)(a) and (b) of the Child Care Act constitute a legislative admission of a welfare system that is breaking down, and a condonation of inefficiency that erodes what should be a basic right on the part of needy children to receive care in appropriate institutions.”
[41] “In whose best interests”, Report on Places of Safety, Schools of Industry and Reform Schools, dated July 1996.
[42] Julia Sloth-Nielsen and Belinda van Heerden “The Child Care Amendment Act 1996: Does it improve children’s rights in South Africa?” 1996 (12) SAJHR 652 - 653.
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