Finalisation of Budget Report; Constitution of SA Parliamentary National Committee on Population Development; Disucussion on Issues of Child Pornography

Meeting report

WELFARE PORTFOLO COMMITTEE
18 May 1998
FINALISATION OF BUDGET REPORT; CONSTITUTION OF SA PARLIAMENTARY NATIONAL COMMITTEE ON POPULATION DEVELOPMENT; DISUCUSSION ON ISSUES OF CHILD PORNOGRAPHY

Documents handed out:
Committee's Report on Vote 38 Budget
Sex Exploitation of Children (Parliamentary Research article)

Chairperson Saloojee (ANC) indicated that the Committee’s Budget Report had to be finalised as a matter of urgency and gave members time to read through the draft which was distributed at the meeting.  The committee discussed the draft and made certain suggestions. The Committee agreed to the Report with certain suggestions being incorporated.

The Chairperson then indicated that the names have been received of members who will serve on the National Committee on Population and Development, to form part of the African/Arab Forum on Population and Development:
Mr. F. Bhengu, Mrs. J. Chalmers, Ms. M.P. Coetzee-Kasper, Mr. M.W. Duna, Dr. E.E. Jassat, Mrs. M.S. Maine, Mr. E. Saloojee, Mr. R.K. September, Mrs. N.G. Shope, Mrs. A.F. Tambo, Ms. N.M. Tsheole, and Mrs. M.E. Turok (ANC);  Mrs. P.W. Cupido, Mr. C.M. George, Ms. N.T. Madubula, and Mrs. T.J. Malan  (NP);  Mrs. I. Mars, and Rev. M. Abraham  (IFP);  Mr. W.A. Botha  (FF); Dr. B.G. Mbulawa  (DP);   Mr. M.M.Z. Dyani  (PAC);   Rev. K.R. Meshoe  (ACDP).
These names were agreed to and it was also agreed that Dr. S.A. Nkomo will be approached to serve on this committee.  The Chairperson called for nominations for the chairperson of the committee.  Ms. Tsheole (ANC) nominated Mr. Saloojee and Dr. Jassat seconded it.  There were no further nominations and Mr. Saloojee was duly elected to chair the committee.

The committee discussed the issue of child pornography. The chairperson indicated that numerous letters of concern had been received.  He had also had discussions with the Chairperson of the Portfolio Committee on Home Affairs, who indicated that although the Films and Publications Act was passed by Parliament in 1996, it had not been promulgated yet.  The legal person within the Department of Home Affairs who was involved in drafting the Act had also been approached but was unable to be present.  He did , however, provide the Committee with a copy of the Deputy Minister of Home Affairs’ budget speech, wherein an announcement on the issue was made.  The Chairperson also undertook to get an opinion from the Film and Publications Board.

The committee then proceeded to view a video recording of the Carte Blanche programme which brought the issue of child pornography to the fore.  The committee deliberated and agreed to the following:
To consult with the Portfolio Committees on Home Affairs and Justice, as well as other legal experts; to investigate recent breakthroughs around this issue in other countries; to initiate a special parliamentary debate on the issue; to form a subcommittee consisting of all parties to work out a plan of action; and to devote a full committee meeting to this issue as a matter of urgency and as soon as further research and fact finding have been done.

Annexure 1:
REPORT OF THE PORTFOLIO COMMITTEE ON WELFARE AND
POPULATION DEVELOPMENT ON VOTE 38: WELFARE, DATED 12 MAY
1998, AS FOLLOWS:
The Portfolio Committee on Welfare and Population Development, having considered and examined Budget Vote 38: Welfare. begs to report as follows:

The Committee acknowledges Cabinet's prioritisation of the Welfare budget among basic social services. For the 1998/99 financial year, the education, health and welfare budget votes account for 84.1% of the total provincial budget of R91.784 billion. The welfare budget vote comprises 20.1% (R18.434 billion) of the total provincial budget which is a substantial increase from 17.7% (R14.101 billion) of the total provincial budget in 1996/97.

The Portfolio Committee further acknowledges the increase in the consolidated Welfare budget from R13.3-billion in 1995/96 to R18.6-billion for the 1998/99 financial year, increasing to ~0.7-billion in 2000/2001. Although this represents a substantial increase, the social security portion of the budget accounts for approximately 91.1% of the total welfare budget for the 1998/99 financial year. While this means that statutory obligations (social pensions and grants) may be secured, there is only 8.9% of the consolidated budget available for other welfare services.

The Portfolio Committee again impresses on Cabinet to separate the social security and social services components of the Welfare and Population Development Ministry, into distinct budget votes within this Ministry. In this way, the social services component will be rendered more transparent enabling adequate rather than residual funding, since it is this component of the Ministry that would be most instrumental in implementing the policies and plans of the White Paper for Social Welfare and the White Paper for Population Policy.

The President has dedicated his term of office to the children and youth of South Africa. The Department of Welfare & Population Development plays a lead role in many of the inter-sectoral programmes (listed below) aimed at addressing children’s issues.  Two issues which merit special mention here are street children and the HTV/AIDS epidemic.

At present there are an estimated 10 000 street children in South Africa. These children are vulnerable to gross forms of abuse including physical abuse and sexual exploitation. In the absence of any form of responsible adult supervision, many of these children fall prey to drug and substance abuse, or turn to criminal activities as a means of survival. Research must be done to determine the causes for the escalating number of street children in our country and adequate funding should be allocated to programmes (such as those identified in the National Plan of Action for Children), for the rehabilitation and re­integration of these children into their families and/or communities.

The time for Government to act on the looming tragedy of the HIV/AIDS epidemic is now. Statistics show that the most significant impact of HIV/AIDS is on the younger, reproductively and economically active sector of the population. Projected estimates reveal that by the year 2010, the effects of the HIV/AIDS epidemic will impact severely on our labour market and economy. The possible impacts on the Welfare sector are enormous.  Many AIDS sufferers would become dependent on State grants as they become debilitated by AIDS-related diseases and are unable to work.  Thousands of children would be orphaned by AIDS related deaths.  Welfare responsibilities and programmes within the Inter-Ministerial Committee on HIV/AIDS (Chaired by the Deputy President), need to be clearly defined and implemented.

We have inherited Child Care legislation that is extremely fragmented and deeply flawed. On 12 May 1998, the South African Law Commission launched the First Issue Paper on the Review of the Child Care Act.  This marks an important advance towards the establishment of a comprehensive and relevant new children's statute, one of the priority projects of the Department of Welfare.  It is hoped that adequate funding would be allocated to this project to allow for the full participation of all stake-holders and organs of civil society, that it may culminate in the establishment of a very progressive and humane Child Care Act in the shortest possible time.

The fact that only 8.9% of the consolidated Welfare vote is allocated to the social services component, leaves little scope for increases in subsidies to non-governmental and community based organisations NGO's and CBO's) This may be particularly relevant in the historically under-serviced areas (mainly rural Black communities) where the delivery of services and programmes is heavily reliant on the NGO and CBO sector. If Government is to meet the need for services and programmes, the challenge is to shift expenditure to developmental social services, without jeopardising the much needed social security safety net.

The Department does envisage some degree of savings from the phasing out of the State Maintenance Grant and the clean-up of the SOCPEN 5 system. With regards to the amalgamation of the 14 different pension systems, the clean-up process of the amalgamated data, re-registration and Ghost Buster project initiated by the Department, the Portfolio Committee notes with interest, the following savings: Ghost beneficiaries –R24 360 186, expired temporary disability – R33 026 949, children over 18 suspended -R4 943 646 , other (duplicate payments etc.) - R17 879 441: Total - R8O 2lO 222.  Although the first priority for the allocation of these savings would be to address back­logs and deficiencies in social security, it is encouraging that the Minister for Welfare & Population Development has announced that such savings will be channelled as far as possible, into the social services and developmental programmes of the welfare function. This reflects the policy shift in welfare towards a developmental approach, as eloquently portrayed in the Aim of the National Department of Welfare "To develop a we/fare system on a national level for the development of human capacity and self-reliance of all South Africans” as well as in the policies and plans outlined in the White Paper for Social Welfare and the White Paper for Population Policy. Such additional allocations to the social services component will increase the capacity to implement several priority programmes, including the National Programme of Action for Children, the National Crime Prevention Strategy, Programmes on the prevention of Violence Against Women and Children. the Transformation of the Child and Youth Care System, programmes targeted at the disabled, the mentally handicapped. HIIV/AIDS victims and AIDS orphans. as well as educational support services such as early childhood education.

The 1998/99 budget identifies social security as the primary tool for poverty relief and income distribution in South Africa. Social Security expenditure is 2.5% of GDP and accounts for over 85% of each provincial welfare budget (with the exception of Gauteng -over 80%). Special provisions have been made in those provinces that have experienced substantial over-expenditures (Eastern Cape - 23.83%, Northern Cape - 18.48%, KwaZulu-Natal - 11.07% and Mpumalanga - 11.85%) in the 1997/98 financial year. These over-expenditures have been related primarily to the social security function. Examination of the final allocation by the National and Provincial Treasuries, show that the Eastern Cape, Northern Province. KwaZulu-Natal and Mpumalanga have been allocated respective increases of 36.4%. 16.2%, 18.8% and 25.1% in their welfare budgets for 1998/99. compared to final allocations for the 1997/98 financial year. In these provinces, the social security function accounts for over 90% of the total welfare allocation.  Notwithstanding these adjustments. examination of the National welfare MTEF results (R20.255 billion) and the final national plus provincial allocations (R18.612 billion) suggest that the welfare function may be under-funded by approximately RI .643 billion for the 1998/99 financial year, increasing to a short fall of approximately R3.874 billion in 2000/2001. The allocated amounts in respect of the social security function may therefore be insufficient for the payment of social grants for the full financial year. This situation may further deteriorate with the increase in the social grant tariffs as from 1 July 1998 and possible increases in the number of social grant beneficiaries. This is largely due to the fact that increases in social grants are no longer part of the Top Slice, implying that provinces will now have to finance increases within the MTEF envelope. In this light. the Portfolio Committee supports the inclusion in the National Welfare Department's budget allocation of R100 million in each of the next two financial years for enhancing the financial management of social grants programmes.

Pensions for old age, disability grants and remittances are the main sources of income for over 40% of the poor (poorest 40%) and nearly 50% of the ultra-poor (poorest 20%). The social transfers reach communities which have historically been poorly provided with social services such as education and health. Old age pensions form the largest portion (58.9%) of the social security budget, followed by disability grants (25.8%) and child and family care (12.0%). While the Portfolio Committee acknowledges the enormous resource constraints on the Department, and further welcomes the increase in social grant tariffs, much concern is raised by the fact that grants have been increased by only 4.3% which is 2-3% lower than the prevailing inflation rate. The real decline in the value of the grants will impact heavily on poverty, particularly in rural areas. For new pensioners, the effect may be exacerbated by the fact that the maximum period for which the
Regulations governing the Social Assistance Act allow back-pay to accumulate, is three months.  Inefficiencies or technical difficulties causing delays in the processing of applications may result in beneficiaries having to forfeit payments accrued in excess of three months.

Government's aim to make social security accessible to all who need it, is further enhanced by the introduction of the new Child Support Grant. While severe financial constraints dictate that the amount of the grant is only R1OO per month for a maximum of two children under the age of seven. per family, this grant will reach three million needy children over a five year period, as compared to the now repealed system of State Maintenance Grants which reached approximately 350 000 beneficiaries. The Portfolio Committee hopes that efficient administrative procedures will be put in place to ensure that this grant reaches the maximum amount of children targeted in each year. With the finalisation and implementation of legislation dealing with child maintenance by the Department of Justice, it is hoped that fewer parents will be dependent on the Child Support Grant in future and that this may allow for the tariff of this grant to be increased.

The Committee wishes to express its appreciation for the comprehensive presentation by the National Department of Welfare and Population Development on the Provincial Medium Term Expenditure Frameworks and budgets for the welfare sector for 1998/99 -2000/2001. We commend the Welfare Ministry on considering demographic factors in modelling the budget. creating a uniform budget structure across provinces and thereby establishing benchmarks for future budgeting; and minimising the potential for over-expenditure.

Annexure 2:
PARLIAMENTARY RESEARCH UNIT
ISSUE BRIEF: SEXUAL EXPLOITATION OF CHILDREN

1.         INTRODUCTION
Pretoria News (November 7, 1997) published that a United Nations report on child prostitution and pornography has identified South Africa as an area of special concern".  The report, by Ofelia Calcetas-Santos, said that child prostitution was increasing in all major African cities, but specifically highlighted South Africa's major cities. "In South Africa, particularly in big cities like Cape Town, Durban and Johannesburg, child prostitution appears to be a growing problem linked to the increasing number of street children who have left their homes for economic and social reasons or as a result of the breaking down of families and traditional values."

The report contained shocking information of child trade, abuse, exploitation and prostitution around the globe and issued a clear warning about the growing dangers of the Internet in the sexual exploitation of children.

Ms. Calcetas-Santos reports that the Internet is contributing to a growth in child pornography and prostitution.   She further warns that the information superhighway is being used by paedophiles to contact each other to exchange information relating to their perversions and to find victims. The United States National Centre for Missing and Exploited Children believes that paedophiles often use the Internet because it is anonymous. It is an easier manipulation process. Children don't see any threat since they are led to believe that the person he or she is "talking" to is a peer.

Computers continue to rival television and other pass-times as a primary source of home entertainment for children around the world.  The dangers of the Internet are accentuated by the computer sophistication of the children who use them. These dangers have been highlighted in a number of international cases.

In Australia, a 12-year-old boy committed suicide after discovering that photographs of his sexual abuse by an older man had been posted on the Internet.

A 15-year-old New Jersey (USA) boy, accused of having raped and strangled an 11-year-old neighbour who was selling candy door-to-door in late September,1997, was obsessed with computers. An investigation revealed that the 15-year-old had himself been raped by a Long Island man, whom he had met through the Internet.

Advances in technology have made the creation and distribution of child pornography "easier, cheaper and more difficult to detect." Since no single entity administers the Internet, there is no central point at which all the information is stored or from which it is disseminated. It would therefore not be technically feasible for any one entity to control all of the information conveyed on the Internet.  Furthermore, the lack of accountability makes policing the Internet 'almost impossible." Internet pornography has developed into "a multi-million dollar industry which can be run from within the exploiter's home."

2.         RECENT REPORTS IN SOUTH AFRICA
Cape Argus (22 January, 1997): Art versus porn: sketches of nude kids spark debate. "A Ghanaian-born artist's [Mark Hipper] quest to challenge the norms and morals of contemporary South African society has caused a stir in local art circles, with many critics accusing him of promoting paedophilia and child pornography.

Sunday Tribune (2 March, 1997): Storm of protest over 'child porn' images in Hipper exhibition. "  drawings of a naked young boy with an erection, and a nude young girl fingering her vagina, have angered many who have visited the NSA gallery and totally condemned Mark Hipper's art, which they say is 'downright vile' and 'borders on child pornography'."

The Saturday Paper (10 May, 1997): "Confronted by the sight of young naked children in explicit sexual positions and acts with an older man, the photographic technician was shocked. Two of the Children were girls, another a young boy. They looked about nine or ten years old. In some of the photographs a man, a midget in his thirties, was doing disgusting things (sexual acts) with them." An Mpumalanga man was arrested but by July 26, 1997 he had not been prosecuted.  The Saturday Star (26 July, 1997) reported that the alleged perpetrator "may escape prosecution because of delays in implementing new censorship laws."

The Sunday Tribune (13 July, 1997): "Last month in Ladysmith, 8O cases of indecent assault involving children [from infants to teenagers] were reported. This week a young man (Jakobus Johannes Roesch, 26) was sentenced for soliciting a young boy to commit indecent acts." The accused pleaded guilty and his sentence includes house arrest and community service in the municipality of Colenso for 2 080 hours, serving not less than 20 hours per week. In addition he must undergo psychological treatment at a minimum of one consultation a week and he must visit a psychiatric clinic. He must be under the supervision of a social worker as well as the supervision of the Department of Correctional Services.

Eastern Province Herald (20, 23 September, 1997):  "An Internet child-porn racket allegedly run by a Port-Elizabeth fast-food operator was smashed by police and customs    A large quantity of pornographic material on computer and on video - much of it involving children - was seized."  "Promotional documents for the Internet web site show that the child porn involved boys and girls as young as 12. It is believed that most of the pornographic material was being imported into the country illegally through the Internet, but police are concerned that local children may also be involved." It is suspected that after the material was down-loaded in Port Elizabeth, the porn was redistributed to customers throughout South Africa and the world via Internet. The web site contains the following warning and disclaimer: "the following pages contain graphic images of nude young girls and boys of legal age in their own country, often engaged in sexual activity with another and are intended for viewing by a specific adult audience only. It may be illegal to download, or even view many of these pictures in your country.  We do not hold ourselves liable for any consequences of you viewing or downloading any of the images... .You proceed at your own risk."

While pornography is no longer illegal in South Africa, it is an offence to import material without clearing it through the publications Control Board, which strictly prohibits child pornography.  The problem in this case was that the new Publications Control Board was not in place at this time.

Saturday Star (27 September, 1997): "Internet child porn racket discovered and smashed in PE". "De Marco, a veteran private investigator stumbled across the web site by chance during investigations into a Port Elizabeth-based pedophile ring, including high profile people in the city, preying on kids aged between 6 and 14."

Sunday Times (28 September, 1997): "Fears have been raised that South African Children are being photographed and marketed on pornographic Internet web sites, following the discovery of a child computer-porn ring being run from a Port Elizabeth business." "The site features images of boys 'and girls as young as six engaged in sexual acts with adults."

Sunday Times (1 March, 1998): Police raid escort agency after granny's tip-off. "A grandmother's complaints about nude photographs of her 14-year-oId granddaughter [and another 14-year-old girl] have led to an investigation into child prostitution at a Bloemfontein escort agency   the girls had been lured into the club where they were served alcohol. Sex orgies had been arranged in which the two girls performed for men who paid for the service... police are looking for the men involved."

Rapport (18 January, 1998): Hof hoor van video's, seksdade by skool. Evidence was heard at the Johannesburg court of an ex-deputy principal of the Randburg High School watching pornographic videos with school boys between 13 and 18-years-old. Mr. Petrus van Dyk (40), is also charged with indecently assaulting the boys. Mr. Van Dyk has pleaded not guilty on 22 charges.

Saturday Star (7 March, 1998): Former pupil tells of sex sessions with deputy principal. "A former Randburg High schoolboy told yesterday how the flattering attention he received from the school's popular deputy principal turned into a three-year-long relationship involving oral sex, mutual masturbation and French kisses   The relationship... began when he was 14..."

Star (25 April, 1998): "Loopholes in law make it difficult to charge major international dealer." Because of loopholes in the law, police were forced to release a 29-year-old Italian-South African suspected of being a major player in an international child porn network. "The [investigating] team has sent letters to the Justice Ministry in a bid to get the passing of the Films and Publications Act expedited." Police confiscated 60 computer disks each containing "images of children, some as young as 2, engaged in sexual acts with adults of the same or opposite sex and with other children."

'The matter was turned away after the attorney-general found that, under the new Film and Publications Act, which has not been fully promulgated, 'no provision could be made for an arrest'." The problem faced by police is that ..... the Publications board has not been convened" The material can therefore not be classified in order for the Attorney-General to proceed with the case. This report further states that "although laws concerning child pornography were gazetted four months ago, they are not yet in place.."

3.         LEGISLATION IN SOUTH AFRICA
The Film and Publications Act (No.65 of 1996) was passed in November 1996. The object of the Act is "to regulate the distribution of certain publications and the exhibition and distribution of certain films, in the main by means of classification, the imposition of age restrictions and the giving of consumer advice, due regard being had to the fundamental rights enshrined in the Constitution of the Republic." This Act repeals, among others, the Indecent of Obscene Photographic Matter Act (No.37 of 1967).

With regards to issues of child pornography (including Internet pornography), the following sections of the Film and Publications Act (1996) are relevant:

Section 1: Definitions
Section 1 (vi): "computer software" means a programme and associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows interactive use.

Section 1 (ix) (a) in relation to a film, and [(b) in relation to a publication]: without derogating from the ordinary meaning of the word includes [display in pubic, or sell, hire out or offer or keep for sale or hire and, for purposes of section 26 (1)(a) and (b), includes hand or exhibit a film [or display a publication] to a person under the age of 18 years.

Section 1 (xii) "film" means (a): any sequence of visual images recorded on any substance, whether a film, magnetic tape, disc or any other material, in such a manner that by using such substance such images will be capable of being seen as a moving picture; (c): any picture intended for exhibition through the medium of any mechanical, electronic or other device

Section 1 (xv) "publication" means (f): computer software which is not a film.

Section 1 (xviii) "visual presentation" means.... a drawing, picture, illustration, painting or photograph produced through or by means of computer software on a screen or a computer print-out.

Clauses (1) (a) and (2) of schedule 1 and clause (1) of schedule 6 and schedule 11, read with sections 25 (a), 26 (1) (a) and (4), 27 (1), 28 (1) and 30 (1).

Schedule 1: XX CLASSIFICATION FOR PUBLICATIONS
A publication shall be classified as XX if, judged within context-
Clause (1) it contains a visual presentation, simulated of real of-
 (a) 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 a lewd display of nudity;

Clause (2) it or any independent part thereof, describes predominantly and explicitly the acts defined in clause (1) (a).

Schedule 6: XX CLASSIFICATION FOR FILMS
A film shall be classified as XX if, judged within context, it contains a scene or scenes, simulated or real, of any of the following:
(a)        clause (1) 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 a lewd display of nudity;

Schedule 11: SEXUAL CONDUCT
For the purpose of these Schedules "sexual conduct" means genitals in a state of stimulation or arousal; the lewd display of genitals; masturbation; sexual intercourse, which includes anal sexual intercourse; the fondling, or touching with any object, of genitals; the penetration of a vagina or anus with any object; oral genital contact; or oral anal contact.

Section 25:  Prohibition of distribution of publications contrary to classifications
Section 25. Any person who knowingly -
(a)        distributes or advertises for distribution a publication classified as XX in terms of a decision of the Board which has been published in the Gazette;
shall be guilty of an offence.

Section 26: Prohibition relating to exhibition, distribution or advertisement of films
Section 26 (1) Any person who knowingly -
(a)        exhibits in public or distributes any film which has not been classified by the Board, or which has been classified as XX in terms of a decision of the Board which has been published in the Gazette;

shall be guilty of an offence.

Section 26 (4) (a) Any person who knowingly broadcasts a film which has been classified as XX in terms of a decision of the Board which has been published in the Gazette; or who knowingly broadcasts a film which has not been classified but which falls within Schedule 6 read with Schedule 9, or Schedule 10, shall be guilty of an offence.

(b) A person shall not be convicted of a contravention of paragraph (a), unless the State either proves the classification concerned or proves that the Board has not given a decision which is to the effect that the film referred to in that paragraph does not fall within Schedule 6 read with Schedule 9, or Schedule 10.

(c)No prosecution shall be instituted in terms of this section without the written authority of the Attorney-General concerned.

Section 27: Possession of certain publications and films prohibited
Section 27 (1) Any person who knowingly -
(a)        produces, imports or is in possession of a publication which contains a visual presentation referred to in paragraph (a) of clause (1) of Schedule 1, read with Schedule 5; or
(b)        produces, imports or is in possession of a publication which contains a visual presentation referred to in clause (1) of Schedule 6, read with Schedule 9,
shall be guilty of an offence.

Section 28: Distribution of certain publications prohibited
Section 28 (1) Any person who knowingly distributes a publication which contains a visual presentation or a description referred to in Schedule 1, read with Schedule 5, shall be guilty of an offence.

Section 30: Punishment
Section 30 (1) Any person found guilty of a contravention of section 25(a), (b) or (c), 26(1)(a), (b) or (f), 26(4), 27(1), 28 or 29 may be sentenced to a fine or to imprisonment for a period not exceeding five years, or where the court convicting such a person finds that aggravating factors are predominant, both such fine and such imprisonment.

4. CONCLUSION
It would appear that the Films and Publications Act (No. 65, 1996) clearly provides for the prosecution of perpetrators guilty of production, possession and/or distribution of pornographic material (films and publications including any electronic medium) involving a person (or persons) who is, or is depicted as being, under the age of eighteen.

Conviction and prosecution is however dependant on the classification of the material by the Film and Publication Board. Although the Executive Committee of the Board assumed office on March 16, 1998, the 28-member Board have apparently not taken up official duties at this time. This has been cited as the main reason why many of the accused in the aforementioned cases in South Africa, have not been prosecuted.

According to the Star (25 April, 1998), a spokesperson for the Publications Board said that police could prosecute suspects under the Criminal Procedure Act and need not wait for the Board to be convened. A legal expert in the Department of Home Affairs claims that The Criminal Procedure Act makes provision for the prosecution of individuals in possession of child pornography or who are found to be dealing in such material. In the case of the Johannesburg Internet designer (see section 2) however, police claim that the suspect was treated in terms of existing legislation which  at this stage does not make provision for a prosecution.

Regarding the Port Elizabeth case, the Deputy Minister of Home Affairs states that there was a violation of the Publications Act of 1974, which is apparently still applicable. The Deputy Minister has requested the Films and Publications Board to investigate the matter further with the prosecuting authorities in the Eastern Cape to ascertain why the offender was not prosecuted under the 1974 Act.

There seems to be little or no provision for actual censorship on the Internet. Given the vast amounts of data that is processed and exchanged via Internet every minute, it is practically impossible to effectively police the Internet. Internet specialists say that there is no foolproof way of protecting children from the smut and sleaze that can be easily transmitted through e-mail and the Internet.

In England and Australia, there are "watch-dogs" who keep an eye on what appears on the Internet and in so doing try to prevent the introduction of unsuitable material. The Australians are moving towards the establishment of a National Intelligence Project to investigate the infiltration of the Internet by paedophiles. In the United States of America, the Federal Bureau of Investigations has created a specialised research service called "Innocent Images Only."  According to the American National Centre for Missing and Exploited Children, the programme has found 70 perpetrators since 1994.  In South Africa, Rapport (5 October, 1997) reported that Ms. Helen Starke, Director of Social Welfare Services said that recommendations for the establishment of a national register of paedophiles in South Africa were submitted to Minister Geraldine Fraser-Moleketi and that the Minister would make a decision and announcement regarding its implementation. It is uncertain whether a national register is being established at this time.

Internet activists and children's organisations agree that the solution to the dangers of the Internet lies in education. Education not only for the children but also for the parents. Several filter servic6s allow parents to deny minors access to pornographic or indecent sites, or to block the transmission of certain keywords determined by parents. But this only protects children from access to unsuitable material. The sexual exploitation of children must be dealt a heavy blow.  The media are powerful tools of mass communication nationally and internationally.  Their potential to protect children from sexual abuse and exploitation should be explored thoroughly.

In terms of legislation, stricter sentences should be applied to those found guilty of possession, distribution or production of child pornography in order to discourage such practices. Mandatory reporting (to the Films and Publications Board) of the suspicion of involvement in practices of child pornography should be effected.

At present both the common law and the Sexual offences Act (No.23 of 1957) affect the related questions of age and sexual offending. According to the First Issue Paper on the Review of the Child Care Act, the following observations are pertinent to the process of integrating legislation and matters concerned therewith:
*           there are gaps, flaws and inconsistencies in the relevant legislation
*           discrepancy between the age of consent for boys (19) and girls (16)
*           questions are raised about "rules of evidence" which are specific to sexual abuse cases and to children's evidence in such cases

In the Action Plan to Prevent and Combat the Commercial Sexual Exploitation of
Children, the Department of Welfare has identified the following objectives as
critical factors which need to be addressed:
*           the establishment of international and national co-operation
*           the development of prevention strategies and identification of children at high risk
*           provision of early intervention
*           enhancement of protection through policy
*           legislation and programmes
*           advocacy
*           community mobilisation and monitoring
*           the creation of specialised units and personnel
*           safe shelters for children
*           enhancement of recovery and re-integration of children

The big questions internationally are: 1) How to balance the freedom of expression (a Constitutional right) with issues of censorship; and 2) Whether modern technology, in particular the Internet, can be controlled and regulated without infringing on an adult individual's rights to privacy and freedom of expression. Where children are concerned, the rights of the child to be protected from maltreatment, abuse or degradation should be paramount.

May, 1998

Annexure 3:
THE FILMS AND PUBLICATIONS ACT (1996)
As the honourable members know, the Film and Publications Act was passed in November 1996. Part of the requirement of this legislation was that a set of procedures had to be followed in the appointment of the Boards. First, a panel vetted by Cabinet had to be appointed to advertise and select persons to be considered by the President for appointment on the Boards. when we passed the legislation in 1996, we were convinced that where a delicate matter of balancing the freedom of speech of individuals and the protection of children arise, the selection of persons to carry through this balancing act had to be done very carefully. Given our history, the part played by censorship therein, and the resultant aversion to government interference in freedom of speech, we had to be guided by a set of procedures which would ensure that the concerns of all affected parties are carefully considered before a final decision could be made. It seemed only sensible that this long and arduous route had to be followed.

I hope that this answers the question posed quite often these days regarding the delay in the promulgation of this legislation.

The Board has now been appointed.  The Executive Committee of the Board, which consists of a Chief Executive Officer and two senior officers, assumed office on March 16, 1998. These full-time officers have since been introduced to the Portfolio committee and have met with the other Board members.

Madam Speaker, I am convinced that we have assembled an efficient Board which is not only broadly representative of South African society, but also fits the high standards of expertise required by the Act. I would like to assure Parliament that we have men and women of integrity to decide on what is not acceptable for our children. The Film and Publications Board has done an amazing amount of work since its appointment.

The Board has had meetings with film and video distributors and has formulated a suggested tariff and regulation structure. With the new tariffs, the Board projects an increase of its annual income from R36O,OOO to about R3, million per annum.  This increase in income, notwithstanding, the Board's budget requirements will not lessen. The tasks of the Board have broadened from the classification procedure to include the provision of more detailed consumer advice and information, the maintenance of an active dialogue with the community, and the regulation of the expanding adult material market. Indeed, a substantial amount of the Board's energies will be invested in dealing with the complaints lodged by the general public, if the experience over the last two months is an indication of further developments.

'Madam Speaker, I am concerned about recent events which clearly indicate that there are some unscrupulous elements who are trying to abuse the period of transition from the old to the new control system by flooding the market with child pornography and unauthorised material.

The Port Elizabeth case, which was detailed on Carte Blanche, is the most vivid example of this period of transition of our laws, by abusing child pornography available on the Internet. Quite clearly, in this case there was a violation of the 1974 Publications Act, which is still applicable.

I, together with the Board have been dismayed at the manner in which the matter was handled by the courts. The court should have prosecuted the offender. I have requested the Films and Publications Board to take up the matter with the prosecuting authorities in the Eastern Cape, as a matter of great urgency.

Clearly, Madam Speaker, the matter of child pornography on the Internet has to be given some priority. Internationally there is a growing concern about this avenue over which we seem powerless. I have been heartened by recent breakthroughs in Belgium and other countries in containing this issue.

I have therefore decided to appoint a task team which will examine ways in which we could police the Internet, and propose necessary amendments to our existing legislation, so that we can close this gap and protect our children from pornography.