Writing legislation that is progressive, comprehensive and attends to the holistic needs of children is not sufficient in itself. The implementation of legislation, making legislation a living reality in the lives of South Africa’s children, requires the monitoring of implementation of legislation and policy and its impact on effective service delivery to children. According to Discussion Paper 103 of the South African Law Reform Commission monitoring is "a continuous follow-up of the activities of government, non-government organisations (NGO’s) and other child related structures to ensure the effective implementation of the Convention of the Rights of the Child and child welfare legislation".

It is of note that some of the progressive legal and policy provisions that do exist to protect children in South Africa are not implemented. For example the use of the intermediary system and closed circuit television that facilitates a child’s giving of evidence in criminal cases of child abuse is only partially implemented, despite the fact that the law providing for this was passed in 1992.

Childline comes across numerous examples of failure to address the needs and rights of children across all sectors of society, including government and civil society.

Appropriate and independent monitoring of the implementation of laws relating to children is essential as it assists in evaluating the gaps in the legislative provisions, gaps in implementation and also what accounts for the gaps in implementation and what can be done to address the issues. Monitoring can also inform legislators as to the need for further law reform – either as a result of the legislation being unworkable or as new problems and challenges arise in the social context that require some legislative intervention.

Monitoring systems need to be independent of the structures that are being monitored. At the Parliamentary Hearings into the sexual abuse of children held in March 2003, it was clear that government departments and the Non-government sector sometimes had differing perceptions of their own, versus the outside view, of their service provision.


The concept of a children’s legislation monitoring mechanism or Children’s Protector is not unique to South Africa. A number of countries have adopted monitoring mechanisms and structures into their children’s legislation in order to ensure meaningful monitoring of the implementation of the legislation and an effective response to problems in implementation.

For example:

In some countries, for example, Sweden and Philippines, children’s rights are monitored by NGO or NGO coalitions.

The development of monitoring structures to oversee the implementation and effectiveness of legislation affecting the lives of children is a matter of concern in a number of countries around the world and has been proposed as an issue for debate at the 16th International Congress on Child Abuse and Neglect to be held in York, UK. 2006. "…… the role of Ministers for Children and Commissioners or Ombudsmen for Children raises the question of a session which looks broadly at how each country can develop structures which support children's well-being and raise their status in law and policy and in the minds of the people to the point that their abuse becomes less likely and, ideally, unthinkable."


In South Africa there is no comprehensive and independent monitoring system that focuses exclusively on the rights of children and the implementation of legislation and policies that impact on the lives of children.

Structures that have a partial monitoring function include:

  1. The National Programme of Action Steering Committee, located in the Office on the Rights of the Child. This Committee consists of senior representatives from all government departments that have an impact on children’s lives as well as a single representative from the NGO sector. The NPA has established a Data Collection and Monitoring Task Group for the specific purpose of monitoring the implementation of the Convention on the Rights of the Child and the Africa Children Charter.
  2. The South African Human Rights Commission, established in terms of the Country’s Constitution. A Committee on the Rights of the child has been established within the SA Human Rights Commission. This committee has the functions (inter alia) of advising the SAHRC on child rights issues and on strategic planning for implementing the protection and promotion of the rights of the child and to ensure that violations of children’s rights are investigated and dealt with. However the Commission has not established monitoring mechanisms at any level of government.
  3. The Parliamentary Joint Monitoring Committee on Children, Youth and Persons with Disabilities. The function of this committee is to monitor and evaluate progress with regard to the improvement in the quality of the life and status of children, youth and disabled persons, with special reference to the Government’s commitments in respect of any applicable international instruments and to duties and responsibilities in respect of any applicable legislation. However its monitoring and evaluating role requires further development and the spread of its activities over children, youth and disability issues means that its effectiveness in relation to children will be much diluted.


The SA Law Reform Commission’s Draft Children’s Bill contains a Chapter (22) that proposes the Development of an Office of the Children’s Protector. This proposal was actively supported by many respondents to the Commission’s Discussion Paper 103 of 2001. The draft legislation provides for the establishment of this office as body, operating independently of the Department of Social Development.

The main functions of the Children’s Protector as envisaged in the Children’s Bill is "without fear, favour or prejudice monitor the implementation of this act by –

  1. organs of state in all spheres of government
  2. Persons and non-government organisations involved in the protection and well-being of children"

The powers and functions of the Office of the Children’s Protector are summarised as:

It is clear that the Bill intended for the Children’s Protector to monitor both state and civil society in order to ensure implementation of a comprehensive, holistic and children’s rights based Children’s Act.

It is also clear, that in a society in which the majority of the country’s children were historically disadvantaged, and which has no formal mechanism that allows children themselves an effective voice when their rights are violated, some form of monitoring mechanism has to be established.

This submission supports the creation of a Children’s Protector to monitor the implementation of the Children’s Bill as well as to monitor and bring to government’s attention any deficiencies in law, policy and implementation of law and policy that compromises the rights of children as subscribed to in South Africa’s commitment to international Conventions and Protocols, the National Constitution and domestic legislation relating to children.


    1. That the chapter in the SA Law Reform Commission on the Child Protector be re-inserted into the Bill in its entirety. OR
    2. The functions of the Child Protector be assigned to a body with a human and/or child rights monitoring function.





The need for an integrated approach to the holistic management of children’s issues, the promotion of the well being of children and the protection of children’s rights has long been recognised both internationally and nationally. Many sectors are involved in ensuring that children’s rights and well being are promoted and protected, and that these may be compromised by competing demands for resources, the sometimes differing perspectives of the different sectors as to what constitutes the "best interests of children", and a lack of understanding of the roles and contribution of sectors.


Some of the key issues and challenges relating to implementing the country’s ratification of the United Nations Convention on the Rights of the Child, the African Charter on the Rights of Children and the clause relating to the rights of children in the Bill of Human Rights in the National Constitution centre around the lack of coordination of services – both preventive and protective – to children, as well as comprehensive and integrated budgeting for these services. Each sector tends to work in isolation from the other, leading to the duplication of some services and shortfalls in others. Individual sectors may also be reluctant to commit resources to activities that require inter-sectoral collaboration.


Although the National Programme of Action Steering Committee exists in the Office on the Rights of the Child in the National Presidency and calls on government departments to "give priority to children in every decision about how to spend government funds", this structure, through its own activities and the activities of provincial programmes of Action serves to facilitate communication and the sharing of information, embark on activities that promote advocacy, participation and mobilisation, assist with research, policy review, evaluation, data collection and monitoring. It is clear that this structure has a data collection and monitoring function, and not a service delivery function. Thus the inter-sectoral coordination of and actual service delivery to children does not fall within the ambit of this structure.


The concept of inter-sectoral and inter-disciplinary protocols and frameworks that promote working together in order to provide holistic children’s services has been developed in both national and international forums and literature. It is of note that a number of countries have developed inter-sectoral strategies and protocols designed to facilitate the effective implementation of legislation and policy relating to children, as well as legislation that supports such strategies and protocols.

The Proposed National Strategy on Child Abuse and Neglect developed through the participation of the National Committee on Child Abuse and Neglect noted that "Government Departments at all levels, in partnership with the broader public must plan inter-sectoral preventive strategies which are designed to strengthen family and community life and to promote homes, schools, neighbourhoods and communities which are safe for children and which promote their full and healthy development" However despite the recognised need for a National Strategy on Child Abuse and Neglect, this has not yet been finalised and subscribed to in South Africa, thus underlining the problems of commitment to inter-sectoral working together. It is therefore clear that, by giving the need for inter-departmental, inter-sectoral collaboration recognition in legislation through provision for a National Policy Framework, the concept of working together to protect the rights of children will have a greater chance of becoming a reality.

As a result of submissions, research and their analyses of the needs of the children of South Africa the Final Report of the S A Law Commission on the Children’s Bill noted that "The Commission is convinced that prevention and early intervention strategies can only be delivered effectively as part of an integrated, inter-sectoral, inter-departmental framework."


The Law Commission’s Draft of the Children’s Bill therefore contains an entire chapter on the Inter-sectoral Implementation of the Legislation, providing for the following:

  1. The implementation of the Act by Organs of state at national provincial and local government levels, subject to a National Policy Framework.
  2. The Minister of Social Development must prepare a National Policy Framework to guide the implementation, enforcement and administration of the Act in order to secure the protection and well-being of children in South Africa.
  3. The National Policy Framework and any amendments must be published in the Government Gazette.
  4. The National Policy Framework to bring together all organs of state at all levels of government, all designated child protection organisations and all NGO’s involved in implementing government or government-aided programmes and projects concerning children.

The draft provisions specified the content of the National Policy Framework, stating that the Policy must be coherent, provide for an integrated, co-ordinated and uniform approach by all structures, and be consistent with the provisions of the Children’s Bill (Act).

The Core Components provided for included

The Development of the National Policy Framework was to be through a consultative process that included Cabinet Members whose departments are affected by the framework, organs of state in other spheres of government and public participation.

Public participation was provided for through the publication of the proposed framework in the government gazette and a summary of the proposed framework in the national media, inviting the public to present oral representations or objections to the Minister, who was required to give due consideration to all representations or objections presented across all sectors and role-players.

This provision thus provided the framework for the entire implementation of the Children’s Bill.

Arguments relating to the inclusion of the National Policy Framework in the Children’s Bill:



1. There is provision for inter-departmental working together in the Constitution (Chapter 3). To include a national policy framework in the Bill is therefore a duplication and redundant.

1.1. The Constitution establishes the broad principle of inter-sectoral cooperation but not the specifics. The Children’s bill is so complex and comprehensive that a specific National Policy Framework is required.

1.2. The Constitution does not include the NGO’s that will facilitate and contribute to the implementation of the Act. A National Policy Framework thus has to be developed that is inclusive of the NGO sector and the arrangements around the purchase of services from this sector.

1.3. Although this Chapter exists in the National Constitution, Practice indicates that inter-departmental cooperation in providing for children is not happening. It is clear that there is duplication of services across departments, gaps in services, and differences in practice and resourcing across the Provinces instead of having some basic national norms.

2. It will delay the implementation of the Bill as it will take too long and hold up the implementation of the Act generally.

2.1. In the Sexual Offences Bill the Minister of Justice is instructed to draft the NPF for Sexual Offences within a 6 month period. Can the Children’s bill not set a time frame?

2.2. The Children’s Bill once passed into an act can be progressively implemented. The development of the NPF need not delay the implementation of other sections of the Act.

3. The NPF is unaffordable – the consultation process may be expensive

3.1. The NPF will in the long term save resources as services will be better coordinated and also contribute to the prevention of duplication of services – thus saving money.

3.2. It could also facilitate improved management of donor funding and ensure that donor funding is directed to where it is most needed.

3.3. It would facilitate a fairer distribution of purchase of services thus reducing the costly competition for funding that sometimes occurs in the private sector.

4. The Bill does, in some clauses, refer to national strategies and mechanisms in relation to specific provisions, for example early childhood development, section 92.

4.1 However these sections are linked to fragmented provisions in the bill. There is a need to develop a comprehensive national policy framework to avoid further fragmentation of services and provisions. Having a number of national policy frameworks relating to different sections of the Bill may contribute to further fragmentation and wasted resources, and further compromise holistic developmental services to children.


5. The NPF would substantially contribute to a reduction in the secondary abuse and neglect of children as services would be well coordinated, role-players would understand and have an appreciation of each other’s role, gaps in the services etc.


7. A consultative process will facilitate more rapid implementation and ownership of the Children’s Act.




It is of note that the concluding observations of the United Nations Committee on the Rights of the Child noted that it was "also concerned about the lack of inter-ministerial coordination between those ministries responsible for the implementation of the Convention (on the Rights of the Child)……The Committee recommends that the State party strengthen its efforts to ensure greater coordination between those ministries and departments responsible for the implementation of the Convention.

The Committee also expressed its concern about the "insufficient efforts made to ensure the adequate distribution of resources allocated for children’s programmes and activities". The Committee further "encourages" …the prioritising of budgetary allocations and distributions to ensure implementation of the economic, social and cultural rights of children to the maximum extent of available resources..".

It is clear that the National Policy Framework, as envisaged in the Law Reform Commission Draft of the Children’s Bill, is an essential component of meeting the South Africa’s obligation to fulfil its ratification of the Convention of the Rights of the Child.


Unfortunately the entire chapter on the National Policy Framework contained in the SA Law Reform Commission’s Draft of the Children’s Bill has been removed in its entirety in the subsequent drafts of the Bill.

It is difficult to understand the rationale behind the removal of this chapter from the Bill other than to hypothesise that implementing such a framework would require resources and would also require the planned allocation of resources for successful implementation.

This is seen as a retrogressive step that will impact negatively on the implementation of the Children’s Bill once it has become law.

It also undermines the possible commitment of the allocation of funding across sectors to ensure that adequate service delivery to children is manageable. This is particularly important and concerning when seen in the light of other provisions retained in the Bill which make it clear that the private welfare sector will carry responsibility for large portions of service provision, for example in the area of child protection.

Removal of this chapter from the Bill is removing the heart and brain of the Children’s Bill and will severely compromise its implementation, and ability to function as an enabling, protective and comprehensive statute for the children of South Africa.


Our urgent request is that this chapter be reinstated in the Children’s Bill in its entirety.


Johannesburg Child and Family Welfare Society.






Prepared by Joan van Niekerk, Childline SA

9th August 2004


The Children’s Bill and Sexual Offences Bill were developed by the SA Law Reform Commission. The Project Committees working on these two critical pieces of draft legislation recognised potential areas of overlap in relation to the care and protection of children, and therefore regularly consulted on the development of draft provisions in order to prevent such overlap.

However subsequent to the handing over of the two Bills to their respective departments, Social Development and Justice, both Bills have undergone considerable changes and there appears to have been no continuation of the process of consultation relating to the two Bills and the prevention of overlap.

Below is a tabulated comparison of the two Bills in relation to how they both "knit together" in order to provide comprehensive care and protection of children and some areas of potential overlap.

It is also relevant to consider the provisions of the Child Justice Bill in that this draft bill relates to children in trouble with the Law.


Children’s Bill

Sexual Offences Bill


Provides for the promoting, protecting and monitoring of the sound physical, intellectual, emotional and social development of children.


Provides for the protection of complainants of sexual offences and their families, and condemns offences of a sexual nature, more specifically those committed against children.

2. The National Policy Framework


Proposed in the original SALRC Bill in order to facilitate the implementation of the Bill. This has been removed in subsequent drafts.

2. The National Policy Framework (S38)

This was proposed in the Law Reform Commission Draft and has been retained and expanded in the subsequent drafts but has omitted consultation with civil society organisations in the development of the policy.

This National Policy Framework contains the following elements:

  1. National objectives
  2. Priorities and strategies
  3. Performance indicators
  4. Framework for cooperative governance
  5. Allocation of supportive and supporting roles and responsibilities
  6. Measures to ensure adequate funding.
  7. Must be published in Gov Gazette
  8. 5 yearly reviews


The provision for an intersectoral Mechanism to co-ordinate the child Protection System has been removed from the Bill – in the SALRC Draft of the Bill this was Section 113A and provided for (inter alia):

i. National needs analysis to inform budget estimates.

ii. Inter-sectoral task teams

iii. Monitoring and coordinating structures at Provincial level.

iv. Training

v. A comprehensive plan for the financing of Child Protection Services.


The Establishment of an Intersectoral Committee (Section 39) providing for:

i. representation from key government role-players.

ii. Responsibilities, functions and duties of the Committee.

iii. Provision for meetings.

(please note the inclusion of civil society representation has been omitted although recommended in the SALRC draft Bill.)



Training for personnel in the Children’s Court: These provisions – Sections 70 to 74 in the SALRC version of the Children’s Bill, have now been removed from the current version.


Provision for National Instructions and Directives (Section 42) This provision includes provision for training on national instructions, social context training and the provision of norms, standards and procedures for all role-players including those in the Justice system.


Childrens rights to health care – Section 22 of the SALRC draft has now been reduced to information on health services. This is unfortunate as the original draft provided access to the prevention of Ill-health and disease. This is particularly concerning as child victims of sexual assault are particularly vulnerable to injury and infection.


Victims (both adult and child) Rights of access to Health Care also removed from the SALRC draft of the Sexual Offences Bill (sections 1h and 21) This is particularly concerning as child victims of sexual assault are particularly vulnerable to injury and infection.


The obligation on internet service providers to take all responsible steps to block access to child pornography – Section 239 – now removed from the Bill.

This may be provided for in the Films and Publications Amendment Bill of 2004.


Section 9 of the most recent draft of the Sexual Offences Bill criminalises the exposure or display of pornography to a child.

This provision may be superfluous if dealt with in the Films and Publications Bill of 2004.


These vary according to the situation – this variation is appropriate according to age and maturity of the child and the particular decision being made.

However a child’s consent to his/her own adoption has been removed from the Adoption section, removing a right afforded to children for the past 4 ˝ decades at least.


This is pegged at 16 years – and has not changed from the earlier legislation. Sexual penetration of a child under the age of 12 years is rape, regardless of "consent"/gender of the child and regardless of whether sexual penetration is vaginal, anal and/or oral and effected by a penis or an object.


Sections 280 to 284 deal with child trafficking. It is appropriate that these provisions remain in the Bill as they relate to the protection of trafficked children and how they should be dealt with by the Children’s Court. Criminal issues relating to trafficking are presently an investigation by the SALRC who are considering the development of specific legislation to deal with trafficking generally.


Section 24 of the latest version of the Sexual Offences Bill criminalises trafficking for the purpose of sexual exploitation. This provision is totally inadequate and it is recommended that it is omitted from the Bill as it pre-empts the outcome of the special investigation of the SALRC.


This provides for

  1. The purpose of such a register – S118
  2. The Contents of the register and entries on the register – S119
  3. The Process of finding someone unfit to work with children – S 120



  5. Disputes over entries in the register and the rights to appeal entry on the register – S 121







  7. The finding of a person unfit to work with children to be reported to the Register (DG of DSD) – S 122
  8. Consequences of entry of name on the register – S 123





  10. The disclosure of entry of a persons name of the register by the person unfit to work with children – S 124


  12. Access to the register – S 125. This is limited – and this is acceptable – however it is difficult to understand why the Department of Education – above other government departments such as health should have conditional access.


  14. Establishment of information in Part B of the register – S 126. This sets out how a person will apply for information from the register – whether this be a prospective employer or a person applying to see if his/her name is on the register. No certificate is provided for in this section – it is desirable to have an official response in writing. The time period for the DG to respond to the query is also too lengthy – 21 working days – if a children’s facility has to employ staff on an urgent basis this is unrealistic – children cannot wait for care.
  15. The prohibition of disclosure of names on the register, the Register is confidential – S 126
  16. The removal of a person’s name on the register – S128. This section is most inadequate – the process is too open and could lead to person’s names being removed from the register inappropriately and to the detriment of children.
  17. There is no provision for this in the Children’s Bill – the implication is that a person’s name could appear on this register without their knowledge.
  18. The Children’s Bill does not contain a similar clause – it is recommended that such a clause be inserted into the Bill.





This provides for

  1. The establishment of the Register – S 25
  2. The Objects of the register – S 26

  4. The Contents of the Register – S 27. Here the Sexual Offences Bill has two useful additions – criminal case reference numbers and aliases of offenders.
  5. Persons whose names must be included in the register – S 28. There are some inclusions in this section that could well be included in the parallel sections in the Children’s Bill – such as already convicted offenders and offenders who suffer from mental illness and/or mental disability that prevents trial processes.
  6. Persons whose names must be included in the register – the process that must be followed – S 28.
  7. Consequences of entry on the Register – S 30 – Prohits the employment of certain persons who have been convicted of sexual offences against children and criminal sanction.
  8. Disclosure that one’s name is in the Register – S 30 (3)




  10. Access to the Register - Application for information from the register – S 31








  12. Establishment of information that a person’s name is on the Register – S30. Section 31 also provides for the issuing of certificates stating whether a person is recorded in the register.













  14. The prohibition of disclosure of information on the Register, the Register is confidential – S 32
  15. Removal of a person’s name from the Register – S 29 – the provisions in this section are not adequate





  17. S 28 (c ) provides for the court to explain the contents and implications of being on the register to the offender.


  19. Section 33 of the Bill prescribes the development of certain regulations for the Sex Offender Register.



S 61 does provide for the use of the intermediary in the Children’s Court however there are no guidelines set out to assist the Court in making the decision as to when the intermediary should be used. It is essential that some guidelines be inserted into the legislation itself or into the regulations.


The original provisions in the Amendments to the Criminal Procedure Act No 51 of 1977 remain the same. The extension of these provisions in order to afford vulnerable witnesses greater protection from secondary victimisation and intimidation in Court have been withdrawn pending further debate.



    1. Neither sets of provisions relating to the register are adequate. However the register of persons unfit to work with children has broader application and therefore should be expanded to include the provisions of the Sex Offender Register rather than the Sexual Offences Bill establishing yet another offender register. This was the original decision of the SA Law Reform Commission Project Committees on the two Bills. It is not only sexual offenders who may be unfit to work with children – physical and emotional assaults on children may be as damaging as a sexual assault and it makes sense that these persons be included on such a register.
    2. Furthermore it is important to bear in mind that the SAPS already maintains a register of all convicted persons for all crimes and that rather than establishing another register – which is costly and therefore wasteful of resources, legislators should explore the possibility of expanding the purpose and function of this register. Only registering sexual offenders is very limiting especially in a climate in which plea bargaining is being encouraged – sometimes quite appropriately so, even in the instance of a sexual offence. This means that some sexual offenders may, for example, in the instance of a child being too traumatised/unable to testify for any other reason in court, be offered the opportunity to plead guilty to a charge that may not reflect on a sexual offenders’ register in order to bring the offender into the Correctional Services System.
    3. Neither register looks at the issue of access to information about children through computer records etc. Prohibiting direct access to children is not sufficient. One has to also protect children where an offender has indirect access to information about children. An example might be of a computer hard or software technician who sets up/services in any way the records of an organisation working with children. This gives an enormous amount of information on children to such a person. For example Childline has confidential reports on children for court on its computers. Some potential offenders might actively seek this information out as sometimes vulnerable children are more susceptible to being sexually exploited.
    4. In both sets of provisions there is a problem in that whilst a person is awaiting the outcome of an appeal or review their name does not appear on the register. There should be a process for temporary registration pending the outcome of an appeal/review. These processes take a long period of time during which offenders may have considerable access to children.
    5. The above sets of provisions do not take into account offenders – usually child offenders but sometimes adults who accept a diversion agreement/contract as an alternative to a trial process. It is essential that these offenders are also included on a register. The Children’s Bill register could be more easily accommodated to allow for this.
    6. Of particular concern are the processes in both sets of proposed legislation with regard to the removal of a persons name from the register. In the Sexual Offenders Bill the process of consulting with a professional on this issue is discretionary on the part of a judge in chambers, and there is a very limited pool of professionals from whom a report may be requested by a Judge or magistrate. It is essential that this be expanded to include social workers and possibly other professionals who have expertise in this area – who provide the bulk of Offender Rehabilitation services in this country. It is also recommended that if the Offender has participated in a rehabilitation programme, the professionals involved in the implementation of this programme be consulted, as well as an external assessor.