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• Introduction
• 1.1 Introduction
• 1.2 Origin Of The Investigation
• 1.3 The Scope Of The Investigation
• 1.4 Limitations Of The Investigation
• 1.5 The Commission’s Working Methodology

CHAPTER 1

INTRODUCTION

1.1 Introduction

1.1.1 The South African Law Commission’s investigation into sexual offences against children emphasises the need to address the pressing and complex problems relating to the sexual abuse of children.

1.2 Origin of the investigation

1.2.1 The South African Government has made a particularly strong commitment to children. President Mandela with his Cabinet has spearheaded a process to ensure that South Africa’s children are not left behind in the process of reconstruction and development. This commitment reflects the goals President Mandela and Mr F W de Klerk endorsed when they signed the World Summit Declaration on the Survival, Protection and Development of Children on 12 December 1993. In particular it sets into motion the process towards fulfilling the objectives of the UN Convention on the Rights of the Child ratified by South Africa on 16 June 1995.

1.2.2 In 1994, Cabinet established the National Steering Committee on the Development of a National Plan of Action for the Children of South Africa (the NPA). This committee constitutes the Directors-General of the following seven core departments: Health, welfare, education, finance, foreign affairs, justice and the RDP.^[1] Following months of inter-sectoral co-ordination and consultation, a National Programme of Action for Children in South Africa was endorsed and launched by Cabinet on 31 May 1996.

1.2.3 The NPA makes specific provision for the protection of children. The goals relating to child protection measures as contained in the NPA Framework read as follows:

1. To ensure that the best interests of the child are protected within the criminal and civil justice system.

2. To ensure that the child has the right

• to security and the relevant social services
• not to be subject to neglect or abuse
• not to be subject to exploitative labour practices nor to be required or permitted to do work which is hazardous or harmful to the child’s education or well-being
• in criminal matters, to be treated in a way that takes account of his or her age.

3. Within the framework of 1 and 2 above, to

• establish a separate juvenile criminal justice system
• address the problems related to children who are involved in all forms of abuse, including sexual abuse
• protect children from using and trafficking in narcotic drugs
• address problems relating to children of divorcing, divorced or separated parents and to children of single parents
• eliminate any form of racial, gender or geographic discrimination or imbalances still existing in the criminal and civil justice system in respect of children
• promote justice that is sensitive to children, with an emphasis on the training of personnel who work with children in the justice system.

4. In the attainment of the above, to promote and strengthen the partnerships within state departments and between state departments and organisations in civil society which are involved in the administration of justice.

5. To link the entire question of children in the civil and criminal justice system to broader developmental issues.

6. To promote the Convention on the Rights of the Child within the broader framework of a human right culture and to make the public and people in the justice system aware of it.

1.2.4 At a NPA Steering Committee workshop held during February 1995, a task team recommended that the Justice Sectoral Working group should, amongst other things, look at the exploitation, sexual abuse and sentencing of offenders, including children who themselves are offenders. It was further decided that the Commission should be used as the structure through which the envisaged legislative reforms be researched and advanced.

1.2.5 The process was further strengthened by the outcomes of a number of important conferences held during this time. These included a conference on “Sexual offences against children, the legal system and the management of the offender and the victim” presented jointly by the Department of Criminology of the University of Durban-Westville and the Human Science Research Council as well as the SASPCAN conferences of 1993 (Cape Town) and 1995 (Johannesburg).^[2]

1.2.6 During 1996, the National Committee on Child Abuse and Neglect, a multi-sectoral committee functioning under the auspices of the National Department of Welfare was called upon to develop a discussion paper on a Blueprint for an Effective National Strategy on Child Abuse and Neglect (NSCAN).^[3] This document is designed to begin to address the problem areas outlined in Chapter 3 of this issue paper. The Blueprint identifies the following components as being essential to the national strategy: research; clarification of the responsibilities of government and non-governmental structures; the resourcing and co-ordination of all components of the child protection system; the balancing of preventative, development and treatment approaches; reporting and data collection; standardised management protocols; advocacy; policy development and legal reform; and monitoring. The strategy is designed to set up processes in terms of which all of these components will have been addressed in a concerted manner by the turn of the century.

1.2.7 Policy development, reviewing existing and drafting new legislation is at the heart of the above processes. The Minister of Justice endorsed and directed the Commission to conduct this investigation.^[4] In June 1996 the Commission accorded the investigation the highest possible priority rating and recommended that a project committee be appointed to assist the Commission in its task. In December 1996 the Minister appointed the following persons to the project committee:

Ms Joan van Niekerk (Childline, Durban)
Ms Rose September (Institute for Child and Family Development, UWC)
Ms Charlotte McClain (Community Law Centre, UWC)
Ms Edmara Mthombeni (Department of Correctional Services, Westville)
Ms Evanthe Schurink (HSRC, Pretoria)
Mr Thumba Pillay (Practising attorney, Durban)

1.2.8 The Commission’s designated member who acts as chairperson of the committee is Ms Zubi Seedat, a practising attorney from Durban.

1.2.9 The Commission takes this opportunity to sincerely thank the members of the project committee for the work they have done.

1.3 The scope of the investigation

1.3.1 This issue paper is titled “sexual offences against children”. As such it covers a range of offences found in various enactments as well as in the common and customary law with a particular focus on children. This reflects the judgment of the community that sexual activity by children, particularly with adults, may be psychologically and physically harmful to them.

1.3.2 There is no statutory definition of child abuse in South African law. The Child Care Act, 1983 does not comprehensively define child abuse but rather provides instances of punishable behaviour.^[5] Nor is the Prevention of Family Violence Act, 1993 of any assistance: It does not define crucial concepts such as “family violence” or “ill-treatment of children”. The term “sexual offence” on the other hand presupposes a clearly defined criminal act.

1.3.3 At this early stage the Commission believes it should not confine its investigation to the narrow realm of existing (statutory) sexual offences against children. It includes the whole spectrum of child sexual abuse both in the intra- and extra-familial context. The Commission believes there is a compelling case for imposing severe legal sanctions on people who exploit children’s dependence or immaturity to engage in sexual activity with them. In our opinion, the issue is not whether the law should prohibit sexual activity with children, but when and how the prohibitions should operate.

1.3.4 On the other hand some overlap with other investigations of the Commission such as those into juvenile justice,^[6] maintenance,^[7] domestic violence,^[8] the review of the Child Care Act,^[9] and sentencing^[10] is unavoidable. To minimize overlap the Project Committee has decided to limit this investigation to sexual offences against children as the Project Committee on Juvenile Justice in their investigation^[11] deals specifically with the juvenile offender. For the same reason this investigation does not deal with the Prevention of Family Violence Act, 1993 as it forms the subject matter of the Commission’s investigation into domestic violence.^[12] Some changes to the law will obviously affect adults as well. Should the Commission recommend changes to the common law of rape, for instance, the impact on adults will also have to be considered.

1.3.5 As the scope of the investigation will have a fundamental bearing on the investigation, we need guidance as to the following questions:

1.4 Limitations of the investigation

1.4.1 It is important to point out that the Commission’s focus is on law reform. We are acutely aware that sexual offences are not committed in a vacuum and that in order to eliminate sexual abuse it is necessary to address and improve the socio-economic circumstances of the majority of our people. We know that the family and the community are central to the well-being of the child and that massive preventative and educational programmes are needed. However, we must warn that the legal system has its own inherent limitations. By transforming what amount to moral precepts into law, the matter does not become simply one of having the will to enforce the law against those who hold out against it.

1.4.2 Inadequacies in the legal system that destabilise or destroy family life cannot be tolerated. Although the legal system cannot, for instance, guarantee stable family environments, healthy family support systems, the protection of children against abuse and neglect, etc., it must reinforce and uphold these values.

1.5 The Commission’s working methodology

1.5.1 The methodology used in this investigation is inclusive of multi-disciplinary and multi-sectoral interests.

1.5.2 This issue paper introduces the investigation into sexual offences against children. Its purpose is to provide a basis for discussion of the topic among all interested parties, including victims and offenders. For this reason this paper does not contain clearly defined recommendations for reform coupled with proposed draft legislation.

1.5.3 In order to facilitate a focused debate, the factual position is first discussed briefly. Where appropriate, this discussion is followed by some questions, boxed in the text. Respondents are invited to respond to the factual position and or to the questions, to comment on any other issues, to suggest solutions, and to indicate whether there are other questions, issues or options that should also be investigated.

1.5.4 Following this issue paper, a discussion paper will be prepared. The discussion paper will take the submissions on the issue paper into account, will contain draft legislation and a comparative study and will again be circulated for general comment. On the strength of these submissions elicited a report will be prepared which will be submitted to the Minister of Justice for his consideration.

[1] The Reconstruction and Development Programme.

[2] Some of the other conferences were “Child prostitution in Southern Africa: A search for legal protection” held at the HSRC on 26 - 28 March 1996 and the conference “Secondary Abuse of the Abused Child” held at the Westville Prison in June 1996.

[3] The Blueprint was drafted by Ms R September and Ms J Lofell.

[4] The Minister of Justice approved the inclusion of the investigation in the Commission’s programme on 13 April 1996.

[5] For example section 50 of the Child Care Act, 1983 provides for punishment of parents or guardians who ill-treat or abandon their children. No attempt is made to define what constitutes ill-treatment. Section 14 of the same Act provides examples of parental behaviour which the Children’s Court can take into account when deciding the fitness or otherwise of a parent or guardian.

[6] Project 106: Juvenile justice.

[7] Project 100: Family law and the law of persons: Maintenance.

[8] Project 100: Family law and the law of persons: Family violence.

[9] Project 110: Review of the Child Care Act, 1983.

[10] Project 82: Sentencing.

[11] Project 106: Juvenile justice.

[12] Project 100: Family law and the law of persons: Family violence.