What does the law say about child labour (SD 13)

It is important for employers to know the requirements regarding child labour stipulated in legislation before employing children. A child is defined in South Africa as anyone under the age of 18.

Basic Conditions of Employment Act (BCEA)

The Basic Conditions of Employment Act defines an employee as:

1. any person who works for another person or for the State and who receives, or is entitled to receive, any remuneration, who is not an independent contractor; and
2. any other person who in any way assists in carrying on the business of an employer or carries on the business himself.

Sectoral Determination 13 (SD 13)

Child labour is strictly regulated in Sectoral Determination 13: Agricultural sector. No person may employ a child in farming activities who is younger than 15 years of age; or who is below the minimum school leaving age in terms of any law. Currently, children in South Africa must attend school until the last day of the year in which the learner reaches the age of 15 years or completes grade nine, whichever comes first.

Sectoral Determination 13 further states that no person shall employ a child in work that is inappropriate for a person of that age; work that endangers the child’s life or that endangers the child’s welfare, education, physical or mental health, or moral or social development. This includes work that deprives children of their childhood, their potential and their dignity and is work that is harmful to their physical and mental development. It is work that affects children’s health and personal development and interferes with their schooling and has a negative impact on children’s well-being.

There are further requirements for employers in the agricultural sector when employing a child between the ages of 15 and 18. The child may not work:

• after 18:00 and before 06:00 the next day;
• more than 35 hours in any week (7 hours per day if the child works 5 days a week); and
• with chemicals.

An employer may also not make any deduction for accommodation in respect of a farm worker who is under 18 years of age.

Burden of proof regarding child labour

The employer bears the burden of proving that when a child is employed, the child is not younger than 15. An employer must further be able to prove that a proper investigation has been conducted to determine the age of the child. Such an investigation may be carried out as follows:

• requesting the parents/guardians of the child to provide a copy (preferably certified) of the child’s birth certificate;
• obtaining a copy of the child’s birth certificate or ID document if the child already has one; or
• if none of these documents exist, an affidavit from the parents indicating the child’s date of birth.

It is advisable to request a copy of the birth certificate before the person is employed. The employer is required to keep a record of the name, date of birth and address of every farm worker under the age of 18 for a period of three years.

Employers may not employ children under the age of 15. Employment of children between the ages of 15 and 18 must be carefully considered and only applied in exceptional circumstances.

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