The use, procuring or offering of a child by others for illegal activities, especially the production or trafficking of drugs, is defined as a worst form of child labour. In South Africa these work-related activities of children often constitute potentially serious crimes, for example, drug trafficking, the use of children by housebreaking syndicates and involvement in illegal gang-related activities. Illegal activities referred to here are those other than CSEC and pornography, which have already been discussed at 5.3. As with CSEC of children, the other illegal activities should be regarded first as crimes rather than child labour. Again, this does not distract from the importance of protecting and supporting children involved in these activities, and their rehabilitation, in as far as they have been engaged in illegal activities.
There is little data available on children working in illegal activities. The illegal nature of these activities means they are unlikely to be reported in surveys, and the current embargo on crime statistics in South Africa contributes to the lack of information. According to the Victims of Crime Survey 1998, 28.5 percent of individuals and 44 percent of households experienced at least one incident of crime in the 5-year period from 1993 to 1997. Through such surveys it is possible to profile the victims of criminal activities, but it is a lot more difficult to profile the perpetrators. A large proportion of offenders are therefore never caught, let alone sentenced. One can therefore study statistics on arrests and convictions, but it must be recognised that these numbers will severely understate the extent of the problem. The following information is of relevance here:
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146 150 children were arrested in 2002 (Report on the new Child Justice Bill, 2003). This is projected to increase to 174 000 by 2005 (DJ, 2003). The number of arrests, even though they probably are an undercount of children actually in conflict with the law, indicates that children involved in crime in South Africa poses an extremely serious problem. If one assumes each arrest accounts for one child, then 1.3% of South African children from age 7 to 17 are in conflict with the law.
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The Western Cape has the highest number of youth offenders apprehended followed by Gauteng and KwaZulu-Natal. The provinces with the highest percentage of child arrests relative to the number of children in the province are the Western Cape (3.9%), the Northern Cape (3.3%) and Gauteng (2.2%).
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In the costing of the Child Justice Bill it has been projected that the breakdown of child cases by crime category will be: economic crimes 62% of child crime; aggressive crimes 32%; sexual crimes 2.5%; and narcotic-related crimes 2%.
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There were 4 111 children in custody on 31 March 2002, 56% who were unsentenced (Table 2). The age profile of children sentenced to imprisonment shows that by far the majority are 16 and 17 years old. The very high numbers of 18, 19 and 20 year olds also reflects the high proportion of this age group engaged in criminal activities and convicted, many of whom may have entered into crime when they were below the age of 18.
Table 2. Juveniles in custody as at 31 March 2002
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As at 31 March 2002
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Age
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Unsentenced
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Sentenced
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Total
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7-13
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11
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7
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18
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14
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166
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29
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195
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15
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370
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172
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542
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16
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790
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514
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1 304
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17
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985
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1 067
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2 052
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Sub-total
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2 322
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1 789
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4 111
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18
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4 558
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3 347
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7 905
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19
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3 738
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4 541
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8 279
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20
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3 234
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4 818
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8 052
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Sub-total
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11 530
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12 706
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24 236
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Total
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13 852
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14 495
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28 347
| Causes of crime can be related to socio-economic conditions prevailing throughout the country, with the high levels of unemployment, poverty and inequality providing conditions conducive to criminal activities that involve relief from both poverty and boredom. One channel through which much crime involving children is directed is through youth gangs. It has been estimated that in the Western Cape alone there are more than 80 000 gang members, with more than half in the age range of 13 to 19. A high correlation between gang membership and involvement in crime in the province is also likely. For example, victims of crime in the Western Cape perceived 41% of burglaries and 40% of murders to have been gang-related.
No research results are available on the proportion of children involved in crime who have been used by others in that regard. It is likely, however, to be significant. In provinces where gang-related activities are prevalent many children are likely to be used by others, sometimes by fellow children, to commit gang-related crimes.
Most policy measures addressing illegal work-related activities are part of the Department of Justice’s general strategies for dealing with children involved in criminal activities. These include distinguishing between activities where children are victims (such as most cases of prostitution, trafficking and other forms of abuse) and those where they have been perpetrators or intermediaries. Where children are the perpetrators, a programme of diversion is being put in place. Diversion is where alternatives are found to the jailing of children, one example being community service.
Some suggested actions for addressing CSEC are also applicable to other illegal activities and should be considered for both situations. They are not repeated here.
Some of the policy measures already in place are the following:
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The Interim Protocols for the Management of Children Awaiting Trial was adopted by the DJ, DSD, DCS and SAPS in June 2001.
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The DSD and the NProsAuth have drawn up a Drug Master Plan for South Africa, which is a programme to address the production, trafficking and use of drugs.
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The DCS are taking various measures to keep children – especially those under 14 – out of prison. This includes referrals back to DJ for fast-tracking of cases of children awaiting trial and for diversion.
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Within the JCPS cluster there is an investigation into the responsibilities of the different departments with respect to prisoners awaiting trial. Existing policy of the DCS does not make provision for access for education and vocational training for awaiting trial prisoners and the responsibility has also not been assigned to another department. This is because DCS is only mandated to rehabilitate convicted offenders and people presumed innocent, such as those awaiting trail, do not require rehabilitation. This policy should be reconsidered since children sometimes spend significant periods in custody while awaiting trail.
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Only administrative support is offered to unsentenced prisoners if at the time arrest they were registered student in which case DCS will facilitate that they continue with the studies and ultimately write examinations. The total number of prisoners involved in education and training programmes for 2001/2002 were 25 345 against a daily average prison population of 172 000. Separate figures for children in custody involved in education and training were not available.
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The policy and funding of the DCS does make provision for compensation for work done by children (or adults) in prison. Work includes cleaning and maintenance tasks.
South Africa has developed a Child Justice Bill that is progressive in its approach to children in trouble with the law. The recommendations below echo the approach in this Act. DJ is the lead Department relating to the implementation of the Child Justice Bill and diversion programmes in terms of the Bill. The Department of Justice also chairs an Intersectoral Child Justice Steering Committee, which includes the Departments of Social Development and the National Prosecuting Authority.
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Regarding the involvement of children in production and trafficking of drugs and other illegal activities, an important element of investigation and prosecution should be finding and prosecuting adults (or sometimes other children) using the children or benefiting from the children's illegal activities, if any. Lead institution: DJ*. Secondary institutions: NProsAuth (prosecution of those using children) and SAPS (identification of those using children who are in conflict with the law, and investigating cases against them). New policy? Policy proposed in the Child Justice Bill, but not yet finally adopted. Once off cost: moderate, but already costed through the Child Justice Bill process. Recurrent cost: moderate to significant saving, if effective, as costed in the Child Justice Bill process. Eg, by imprisoning perpetrators behind the children, fewer children should be lured criminal activities. Time line: within one year of adoption of policy.
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Where children commit crimes, the diversion of such child offenders away for prison (including community service) should be the preferred option for children. Where appropriate, prosecution of a child should be converted to a children's court inquiry, after conviction.Lead institution: DJ*. Secondary institutions: DSD* (assistance with diversion), NProsAuth* (prosecution of those behind children, and diversion programmes), SAPS (identification of those using children who are in conflict with the law, and investigation of cases against them) and DCS. New policy? Policy proposed in the Child Justice Bill, but not yet finally adopted. Once off cost: moderate, but already costed through the Child Justice Bill process. Recurrent cost: Moderate. It should eventually ease spending pressure on SAPS, by the imprisonment of the perpetrators behind the children in conflict with the law. The effect of diversion programmes should be to ease the strain on the budget of DCS. In due course therefore moderate to significant saving, if effective, as costed in the Child Justice Bill process. Time line: within one year of adoption of policy.
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Formal education or vocational training should be offered to all children whose sentence involves deprivation of liberty, including those held while awaiting trail. In terms of existing policy education and training is seen as a form of rehabilitation. DE has already embarked on curriculum development and conversion of facilities for children. Lead institution: DrE. Secondary institutions: DCS*, DSD*. New policy? Yes, regarding children awaiting trial. No, regarding children convicted and held in custody. Once off cost: Moderate. Recurrent cost: significant. Time line: within two years of adoption of policy.
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Authorities holding children in custody should be allowed to continue requiring of them to work. Work is preferable to children being bored and feeling useless. However, policy should be formulated on when children deprived of their liberty may be required to work, and when such work should be remunerated. This policy should be in line with national and international protective laws on children. Lead institution: DCS (prisons), DrE (reform schools). Secondary institutions: DSD. New policy? Yes. Once off cost: minimal. Recurrent cost: minimal. Time line: within two years of adoption of policy.
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Measures regarding illegal activities addressed elsewhere include:
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Training materials and programmes of law enforcement agencies should highlight the requirements in (56) and train them in methods to achieve this aim. See (28)
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