Meanwhile, he maintains, too few producers fully appreciate the extent of the legislation that already regulates the use of children in productions.
“The recent release of Notes on a Scandal and Blood Diamond, two highly acclaimed movies that make use of child actors who portray children in extremely disturbing circumstances, has once again raise the issue of how or whether children may be used in productions that expose them to violence, sex or other potentially disturbing situations,” he says.
In Notes on a Scandal, a female school teacher has a sexual relationship with one of her pupils and Blood Diamond depicts children in brutally violent surroundings as child soldiers.
“Although the films are bona fide and brilliantly executed, there are legal issues that need to be addressed alongside the ethical and moral ones. In South Africa, a producer could look to the new Children's Act for legal guidance, but that would not be the place to start,” he adds.
Instead, the starting point in this matter is the South African Constitution. Section 28(1)(f) states that every child should not be required or permitted to perform work or provide services that
(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well being, education, physical or mental health or spiritual, moral or social development.
Then there's the Basic Conditions of Employment Act that gives legislative effect to the Constitution in sections 43 and 44.
“The two key Sections are 43(1) and 43(2),” Groenewald continues.
Section 43(2) determines that no person may employ a child in employment that is inappropriate for a person of that age and/or that places at risk the child's wellbeing, education, physical or mental health, or spiritual, moral or social development.
“While there are some basic conditions of employment that may be varied, Section 43(2) is unequivocal – no ifs, ands or buts,” Groenewald says.
Then there's Section 43(1) which determines that no person may employ a child who is under 15 years of age. The Minister of Labour has issued what's known as Sectoral Determination 10 (commonly referred to as ‘SD10') which allows for Section 43(1) to be varied to allow the employment of children in the performance of advertising, sports, artistic or cultural activities.
However, SD10 also requires that before producers can go ahead and employ a child under the age of 15, they must obtain a permit from the Department of Labour. The Department can refuse to issue a permit if it is not convinced that the child's interest would be properly protected.
“It doesn't end there. The Minister of Labour has also issued a Code of Good Practice for the Employment of Children in the Performance of Advertising, Artistic or Cultural Activities. This provides further requirements of which every producer should be aware,” Groenewald continues.
For example, section 5 deals with a child actor's dressing room: ‘No adult shall be allowed to occupy the dressing room simultaneously with the child, except the duly appointed wardrobe mistress and/or parent and/or child minder'.
Producers therefore need to be fully aware of all the general rules applicable to working with children.
So, may a child be exposed to violence, sex or similar situations for the purposes of a movie or other production?
“The answer lies in the following questions: will this negatively affect the child's well being, mental health or spiritual, moral or social development, and is it inappropriate for a child of that age?
“If the answer to these questions is ‘yes', the production will fall foul of the Constitution, the Basic Conditions of Employment Act and SD 10. In other words, it would amount to a criminal offence,” Groenewald concludes.
