The trafficking of children for purposes of sexual exploitation

• Films and Publication Act, No 65 of 1996, as amended 1999
The Films and Publications Act (1996) aims to provide for the classification of certain films and
publications and deals with matters arising from the production, possession and distribution of such
classified films. The broad definition of 'publications' makes this Act also applicable to computer
software, soundtracks as well as 'any figure, carving, statue or model'. On the other hand, 'any
picture intended for exhibition through the medium of any mechanical, electronic or other device' is
included in the Act's definition of 'films'.
The classification or even refusal thereof for 'publications' and 'films' is aimed at regulating
distribution of films and publications based on fundamental constitutional rights.
Schedule 1, Section 1(a) of this Act allows for the classification of 'publications' if
it contains a visual presentation, simulated or real of a person who is, or is depicted as being, under
the age of 18 years, participating in, engaging in or assisting another person to engage in sexual
conduct or lewd display of nudity.
The same criterion applies to 'films' as described in Schedule 6, Section 1(a) of this Act.
This means, that any form of pornographic 'film' or 'publication' depicting children would be
classifiable. This could include a catalogue or pamphlet which advertises children for the purpose of
sexual exploitation. However, a very narrow definition of sexual conduct limits the applicability of
the above criterion.
The possession (Section 27) and distribution (Section 28) of child pornographic publications and
films are offences. Section 27(a) prohibits any person knowingly producing, importing or being in
possession of child pornography, while Section 28(a) prohibits the distribution of child
pornography.
However, the above classifications and restrictions do not apply 'in respect of a bona fide scientific,
documentary, literary' 'film' or 'publication', (Schedule 5 and Schedule10) which leaves a broad
scope of interpretation and potential misuse, since it could be argued that the portrayal of child
pornography is 'scientific' or 'documentary'.
The Act further fails to address the use of a child or child's image for purposes of sexual
exploitation on the Internet. This would mean that while possession and distribution of a
'publication' and 'film' portraying child pornography is prohibited, the import, distribution and
possession of child pornography through the Internet is not an offence.
Especially with regard to trafficking of children for purposes of sexual exploitation the Internet is
one the main tools facilitating activities related to trafficking. Children are 'offered' on the Internet,
places where sexual exploitation occurs use the Internet to advertise, and 'clients' are using the
Internet to 'buy' children for purposes of sexual exploitation.
• Aliens Control Act
The Aliens Control Act (1991, amended 1995) together with the Immigration Bill and the Refugees
Act are of importance in relation to cross-border, regional and international, trafficking of children
for the purpose of sexual exploitation. These legislative procedures can be applied for the
prosecution (e.g. the 'removal' from or prohibition of further entry into South Africa) of foreign
criminal offenders and therefore be regarded as protective measures for sexually exploited and
trafficked children. However, the same measures can be and are applied to victims of trafficking
and survivors of sexual exploitation. This means that the foreign child trafficked into South Africa
for the purpose of sexual exploitation is prosecuted under the same provisions as the trafficker and
'sent back' to the country of origin. It can be argued that this is a violation of the child's
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