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A situation where a 'found' child has been subjected to exploitation and through activities related to trafficking brought into South Africa would indicate that such a child is 'a child in need of care'. This means, that a child in these circumstances, with the assistance of the Children's Court, would be able to apply for refugee status. Especially, since it is in the 'child's best interest' not to be sent back into conditions which would most likely allow for trafficking for the purpose of exploitation all over again. Section 3 of the Act defines the circumstances under which a person qualifies for refugee status. It states in Section 3(a) that a person is eligible to apply who “Owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable, owing to such fear, unwilling to return to it.” It could be argued, that children who are victims of trafficking in persons belong to a 'social group' and 'owing to a well-founded fear' (i.e. to be subjected to exploitation again) are 'unwilling to return' to their country of origin.

The films and publications act, 65 of 1996 as amended 2004 - Child Pornography The Films and Publications Act 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 materials. The broad definition of 'publications' makes this Act also applicable to computer software, soundtracks as well as 'any figure, carving, statue or model'. The Act’s definition also includes, 'any picture intended for exhibition through the medium of any mechanical, electronic or other device'. 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 that 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'.

What to do about Trafficking in persons - Resource Manual produced by Molo Songololo & UNODC


Resource Manual  
Resource Manual  

What to do about Trafficking in persons - Resource Manual produced by Molo Songololo & UNODC 1 Produced by © Molo Songololo 2007 A resou...