Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Articles 1(1) and 2(1) of the Convention. With reference to its comments made under Conventions Nos. 138 and 182, likewise ratified by South Africa, the Committee has noted the Government’s indications in its report that in some provinces there have been reports of a common occurrence during harvesting months, where children are taken out of school and transported in truck loads to farms far away from their places of residence. According to the Government, it is alleged that it is due to collusion between farmers and local chiefs, and in some instances parents, due to poverty, give permission for their children to be used. The Committee has also noted the Government’s statement in the report that labour inspectors are investigating these allegations and requests the Government to provide in its next report information on the results of these investigations.

Article 2(2)(a). In its previous direct request, the Committee asked the Government to indicate what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends. It also requested the Government to supply a copy of provisions applicable to military officers and other career military servicemen as regards their right to leave the service in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length. Noting that the Government’s report contains no such information, the Committee hopes that the Government will not fail to provide the information requested in its next report.

Article 2(2)(c). In its previous comments, the Committee noted that, under section 37(1)(b) of Correctional Services Act No. 111 of 1998, every prisoner must perform any labour which is related to any development programme or which generally is designed to foster habits of industry. The Government indicated in its 2000 report that Department Order B, Service Order (5), details orders of the president for the application of prison labour. Under these Orders, prisoners may be available to private hirers sworn in as temporary correctional officials, thus making it under "public authority" against payment. The Government also indicated that no offender is forced to perform such labour.

The Committee noted that Chapter XIV of Correctional Services Act No. 111 of 1998, allows the establishment of joint venture prisons. The Government indicated in its 2000 report that, as part of the Government’s public/private partnership, there were initiatives relating to two prisons at Bloemfontein and Louis Trichardt which were supposed to be managed as a joint venture between the Department of Correctional Services and the private sector. The prisoners were supposed to work inside the prison premises as part of a structured day programme aimed at the development and training of the individual inmate.

The Committee observed that, under Article 2(2)(c) of the Convention, prisoners must not be hired to or placed at the disposal of private individuals, companies or associations. However, while this Article strictly prohibits that prisoners be hired to or placed at the disposal of private undertakings, the Committee has accepted, for the reasons set out in paragraphs 97-101 of the General Survey of 1979 on the abolition of forced labour, that schemes existing in certain countries under which prisoners may, particularly during the period preceding their release, voluntarily enter a normal employment relationship with private employers, do not fall within the scope of the Convention. As the Committee has repeatedly pointed out, only work performed in conditions of a free employment relationship can be held compatible with the explicit prohibition in Article 2(2)(c); this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of the consent, i.e. the basic obligation to perform prison labour and other restrictions on the prisoner’s freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relation such as a level of wages and social security corresponding to a free labour relationship, to remove the employment from the scope of Article 2(2)(c).

The Committee therefore asked the Government to indicate how it is guaranteed that the person concerned is giving such voluntary consent, and to give details on the guarantees and safeguards established in law and practice. As the Government’s report contains no reply to these comments, the Committee hopes that the information requested will be provided in its next report. The Committee also reiterates its request for a copy of Department Order B, Service Order (5), referred to in the Government’s 2000 report.

Article 2(2)(e). The Committee previously noted from the Government’s report that traditional leaders may ask their community members to perform work. According to the Government, such work performed by the community may not be the sole benefit of the traditional leader and may imply a project that is of benefit to the whole community, e.g. repairing roads and fences, etc. The Government also indicated that in some traditional areas, legislation stipulates that communities must respect traditional leaders and must be obedient to their authority. In the Government’s view, the work exacted from the community members should not be seen as forced labour, but as "customary labour" that is voluntarily performed on a communal basis within a specific community. At the same time, the Government indicates that a problem may, however, arise within a traditional community whether a person cannot be discriminated against for failing to show his obedience and respect for traditional leader.

The Committee recalls in this connection that Article 2(2)(e) exempts from the provisions of the Convention "minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community". Referring to paragraph 37 of the General Survey of 1979 on the abolition of forced labour, the Committee draws the Government’s attention to the criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory labour. These criteria are as follows: (1) the services must be "minor services", i.e. relate primarily to maintenance work; (2) the services must be "communal services" performed "in the direct interest of the community", and not related to the execution of works intended to benefit a wider group; (3) the members of the community or their direct representatives must "have the right to be consulted in regard to the need for such services".

The Committee therefore requests the Government to provide a more detailed information on the nature of works performed by the traditional communities and to indicate what guarantees are provided to ensure that the members of the community shall have the right to be consulted with regard to the need for such works. The Committee again requests the Government to supply a copy of the White Paper on traditional leadership and institutions referred to in the Government’s 2002 report.

Article 25. The Committee previously noted that, under section 48(2) and (3), of the Basic Conditions of Employment Act No. 75 of 1997, a person who for his or her own benefit or for the benefit of someone else, causes, demands or imposes forced labour, commits an offence. By virtue of section 93(2) of the same Act, a person convicted of an offence in terms of section 48 may be sentenced to a fine or imprisonment for a period not longer than three years. While noting the Government’s brief indications concerning the application of the above provisions, the Committee requests the Government to supply information on any legal proceedings instituted as a consequence of their application, indicating penalties imposed and supplying copies of relevant court decisions.