Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

1. Articles 1(1) and 2(1) of the Convention. The Committee previously noted the Government’s indications 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 truckloads to farms far away from their places of residence, and that labour inspectors were investigating these allegations. The Committee has noted the information supplied by the Government in its latest report on the results of these investigations. With reference to forced or compulsory child labour, the Committee notes that the Government has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182). In so far as Article 3(a) of Convention No. 182 provides that the worst forms of child labour include "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour", the Committee is of the view that the problem of forced or compulsory labour of children may be examined more specifically under Convention No. 182. The protection of children is enhanced by the fact that Convention No. 182 requires States which ratify it to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly asks the Government to henceforth refer to its comments on the application of Convention No. 182.

2. 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 provide the information requested in its next report.

3. 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.

4. 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.

5. 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 employment from the scope of Article 2(2)(c).

6. 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 once again 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.

7. Community corrections and consent of convicted persons to work for non-public entities. The Committee notes that, under section 51(2) of Chapter VI (Community Corrections) of the Correctional Services Act No. 111 of 1998, no order imposing community corrections may be made unless the person to be subjected to community corrections agrees that it should be made according to the stipulated conditions and undertakes to cooperate in meeting them. Among the stipulated conditions are that the person concerned does community service (section 52(b)), seeks employment (section 52(c)), or takes up and remains in employment (section 52(d)). The Committee recalls that the exception from the scope of the Convention provided for in Article 2(2)(c) of the Convention for compulsory work of convicted persons does not extend to their work for private entities, even if they are not for profit and even if they are under public supervision and control. However, such community work sentences could be imposed if the offender either requests to do such community work, or gives free and voluntary consent to so perform the work. The Committee would appreciate information from the Government, including copies of any relevant interpretive administrative rules and guidelines, concerning the mechanics of the consent procedure prescribed in section 51(2) of the Correctional Services Act No. 111 of 1998 and how it has operated in practice.

8. 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 regarding unlawful discrimination against a person for failing to show his obedience and respect for traditional leader.

9. The Committee notes from the White Paper on Traditional Leadership and Governance, issued in July 2003 by the Minister for Provincial and Local Government, the discussion of the structures of traditional leadership, which states in part:

Traditional leaders administered the affairs of their communities through customary structures. Each structure comprised the traditional leader, headmen and members of the community. Through these structures, a traditional leader coordinated the activities of his/her community, including ploughing and harvesting, hunting, war expeditions, ancestral worship, rituals and other traditional activities. In addition, through these structures, traditional meetings (izimbizo/dipitso) were called where the affairs of the community were discussed and disputes among members of the community were resolved.

The White Paper proposes that pre-colonial tribal councils be established according to custom and be renamed "traditional councils", with functions that include continuing to generally administer the affairs of the community in accordance with custom and tradition. The White Paper, in discussing the accountability of traditional leaders and structures, states that traditional structures must ensure that, at least once a year, a meeting of the whole community is called where the chief and his counsellors report on their activities of the preceding year, and that legislation to regulate the accountability of traditional leadership and authorities, as well as a code of conduct, would be introduced. The Committee notes the Traditional Leadership and Governance Framework Amendment Act, 2003, which embodies proposals in the White Paper, and which provides, among other things, for: recognition of traditional communities (section 2); the establishment by traditional communities of traditional councils (section 3), charged, among other things, with administering the affairs of the traditional community in accordance with customs and traditions (section 4(1)(a)) and performing the functions conferred by customary law, customs and statutory law (section 4(1)(l)); traditional leaders performing the functions provided for in terms of customary law and customs of the traditional community concerned and in applicable legislation (section 19); and codes of general conduct for traditional leaders and traditional councils (schedule).

10. While noting this information, the Committee recalls 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; and (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".

11. The Committee therefore requests once again that the Government provide more detailed information on the nature of works performed by traditional communities, in accordance with customs, customary law and applicable legislation, and that it indicate what guarantees are provided to ensure that the members of traditional communities have the right to be consulted with regard to the need for such works.

12. 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 once again 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.