The trafficking of children for purposes of sexual exploitation

constitutive elements related to offences that are a part of the traffic in and sexual exploitation of
children. This review also includes a focus on the traffic of pornographic images of children. The
review focuses specifically on the South African Constitution and the following laws:
• Child Care Act, No 74 of 1983, as amended 1999
• Basic Condition of Employment Act, No 57 of 1997
• Sexual Offences Act, No 23 of 1957, as amended 1988
• Proposed Draft Sexual Offences Bill, 1999
• Domestic Violence Act, No 116 of 1998
• Prevention of Organised Crime Act, No 121 of 1998, as amended 1999
• Promotion of Equality and Prevention of Unfair Discrimination Act, No 4 of 2000
• Films and Publication Act, No 65 of 1996, as amended 1999
• Aliens Control Act, No 96 of 1991, as amended 1995
• Immigration Bill, 2000
• Refugees Act, No 130 of 1998
The review of the above legislation is limited to offences that are directly related to activities
surrounding the traffic of children for purposes of sexual exploitation.
4.2. The Constitution of South Africa (1996)
The South African Constitution provides in Section 10 for the right to human dignity and states that
'everyone has inherent dignity and the right to have their dignity respected and protected'. Section
12 guarantees the constitutional right of everyone to freedom and security. This includes the right
'to be free of all forms of violence from either public or private sources' (Section 12(1)(c)) and 'not
to be treated or punished in a cruel, inhuman or degrading way' (Section 12 (1)(e). The
constitutional rights defined in the Bill of Rights are applicable to 'everyone' and this includes
children.
Even though children are entitled to all constitutional rights, Section 28 of the Bill of Rights
provides for the special protection of children. According to this provision:
Every child has the right –
(1)(b) … to appropriate alternative care when removed from the family environment
(1)(d) to be protected from maltreatment, neglect, abuse or degradation
(1)(e) to be protected from exploitative labour practices
(1)(f) not to be required or permitted to perform work or provide services that-
(i) are inappropriate for a person of that child's age
(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or
social development.
The Constitution states further in Section 28(2) that 'a child's best interests are of paramount
importance in every matter concerning the child'. Since the Constitution does not provide a
definition of 'a child's best interest' it gives wide scope for interpretation. While the concept can
possibly be interpreted in ways that are contrary to the 'best interests of a child', it also provides
room for the fullest realisation of children's rights. For the child survivor of trafficking for the
purpose of sexual exploitation it provides, amongst other things, for the right not to be victimised
further by the justice system. It further provides for the right of access to places of safety and care
during the process of physical and psychological recovery.
4.3. South African Legislation
The following analysis will focus on legislative measures aimed at the protection, safety and care of
child survivors of trafficking and sexual exploitation. In addition, criminal law provisions aimed at
the prosecution of anyone who is directly or indirectly involved and participates in the sexual
exploitation of children, and those who facilitate and enable in any way the trafficking of children
for the purpose of such exploitation, are analysed. Furthermore, legislation related to foreign
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