Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - South Africa (Ratification: 1997)

1. Article 1(1)(a) of the Convention. Sexual harassment. The Committee recalls its previous comments regarding sexual harassment and the adoption of the Code of Good Practice on the Handling of Sexual Harassment Cases. It notes that according to the Government’s report, the Code is merely a guide to assist employers in developing their own codes of practice. The Government’s report goes on to state that the Department of Labour does not have information on the handling of sexual harassment cases since the development of the codes of practice is within the jurisdiction of the employers. The Committee reminds the Government that it has an obligation to ensure the application of the principles of non-discrimination in respect of employment, and is responsible for the supervision and effective enforcement of anti-discrimination laws, including those provisions prohibiting sexual harassment. The Committee asks the Government to monitor the extent to which the Code of Good Practice has been used by employers to develop their own policies, and to collect information on whether such policies have helped to prevent and address sexual harassment. The Committee also asks the Government to supply information on the practical impact of the codes developed by employers, and on any other measures to address sexual harassment in employment and occupation. Please also provide information on any judicial and administrative decisions regarding sexual harassment including on remedies provided.

2. Article 2. Promotion of national policy. The Committee recalls its previous comments on the Promotion of Equality and Prevention of Discrimination Act (“Equality Act”) and the role of the Human Rights Commission (HRC), charged with monitoring the implementation of the Equality Act. It notes that pursuant to section 25 of the Equality Act, the HRC has conducted workshops to raise awareness on fundamental rights, including issues related to employment, with a view to enabling people to use the relevant legislative instruments to protect themselves against unfair discrimination. The Committee also notes that the HRC has established an internal mechanism to deal with issues of unfair discrimination and it is said to have resolved many complaints on that topic, and conducted investigations into cases of alleged unfair discrimination. The Committee asks the Government to provide further information on the activities of the HRC, particularly as regards the number and results of the investigations conducted with respect to complaints of unfair discrimination in employment, the complaints resolved and the assistance provided, including copies of the relevant documents, in so far as they relate to discrimination in employment and occupation. The Committee asks the Government to continue to keep it informed on the measures taken or envisaged to publicize its non-discrimination policy as called for in section 25 of the Equality Act.

3. Equality between men and women. The Committee notes that, according to the Government’s report, women workers are disproportionately found in the least remunerated and lowest ranking occupations. In particular, the largest proportion is found in clerical-related occupations. The Committee also notes that according to the statistical data provided by the Government, there are proportionately more black women found in unskilled occupations than white women (of the total amount of people employed in unskilled occupations, 23.5 per cent are black women and 0.7 per cent are white women). The Committee reminds the Government that occupational sex segregation in the labour market is one of the most common manifestations of discrimination on the ground of sex. The Committee further notes that the case Wallace v. Du Toit concerning a dismissal because of pregnancy, was decided in 2006 by the Labour Court, which held that the dismissal was unfair and unjustified. The Committee invites the Government to look into the underlying reasons for the present occupational segregation and asks the Government to indicate in its next report the measures taken or envisaged to reduce occupational segregation of women in low-skilled jobs and to promote their access to jobs with career opportunities and higher level positions. The Committee also refers to its comments addressed to the Government under the Equal Remuneration Convention, 1951 (No. 100).

4. Equality in employment and occupation with respect to race and colour. The Committee notes that the statistical data provided by the Government show a high concentration of black persons in low-skilled jobs. In particular, whereas only 17.9 per cent of African people are employed in top management occupations, compared to 72.6 per cent of white people, 83.3 per cent of African people are found in unskilled occupations. Moreover, the employment equity reports, referred to by the Government, indicate that in the reporting period of 2005, of all the top management employees recruited, 28.3 per cent were Africans compared to 58.6 per cent white people and, further, termination of employment was highest amongst Africans than in any other population group. The Committee asks the Government to keep it informed on the measures taken or envisaged to address occupational segregation on the ground of race and colour, particularly regarding access of African people to higher level occupations as well as advancement in their professional career.

5. Article 2. National equality policy. The Committee takes note of the information provided by the Government with respect to the composition of the Commission for Employment Equity and the functions which it is called to perform. The Committee also notes that a Code of Good Practice on the Preparation and Implementation of the Employment Equity Plans, as well as a user’s guide, have been developed to assist employers to prepare and implement their plans. In that respect, the Committee takes note of the creation by the Department of Labour of an employment equity database to monitor and evaluate the implementation of the relevant legislation. In particular, according to the data so far collected and the qualitative assessment of all the initiative taken in this regard, the Committee observes that the discrimination awareness programmes, diversity management programmes and other measures were implemented on a very small scale. On the other hand, 72 per cent of employers indicated that they had implemented affirmative action measures in the area of recruitment procedures, while 66.8 per cent reported that they had implemented affirmative action measures in training and development. Moreover, approximately 73.8 per cent of employers reported that they involved their employees prior to the development of their employment equity plans. The Committee would appreciate continuing to receive information on the concrete activities carried out by the Commission for Employment Equity, as well as receiving information on the activities carried out by the Equality Review Committee. In particular, the Committee invites the Government to keep it informed on the evaluation of employment equity plans.

6. Article 3(a). Cooperation with the social partners. The Committee notes the general information provided by the Government with respect to the functions to be fulfilled by the National Economic Development and Labour Council (NEDLAC). In the absence of information on the specific activities carried out by NEDLAC, the Committee again invites the Government to supply such information.

7. Article 3(e). Access to vocational training. The Committee notes that the National Skills Development Strategy (NSDS) was reviewed and phase two of this strategy, covering the period April 2005–March 2010, was launched by the Minister of Labour in 2005. The emphasis is maintained on the training of black persons, women and people with disabilities, as well as adding young people of all categories in the scope of the strategy. The Committee further notes that an independent research project is in the process of evaluating the impact of such training in relation to the placement results in employment and learning opportunities. The Committee asks the Government to continue to keep it informed on the outcomes of the second phase of the NSDS and to provide a copy of the findings of the independent research project when it is concluded. Moreover, the Committee reiterates its previous request that the Government provide indication of the number of unemployed black people, women and people with disabilities who received training and sustainable employment in connection with the programmes carried out.

8. Article 4. Individual suspected or engaged in activities prejudicial to the security of the State. The Committee again invites the Government to supply information on the practical application of this Article and on the procedures establishing the right of appeal to competent bodies, as contemplated by the Convention.

9. Article 5. Special measures. With regard to its previous request for information on the specific affirmative action measures taken to remedy the effects of past employment discrimination against black people, women and disabled persons, the Committee notes that the Government has put into practice a number of social and skills development programmes, such as the Hummer Project for unemployed youth or the Unicraft Centre for people with disabilities, aimed at disabled people or unemployed youth, mostly black persons and women. The Committee invites the Government to continue to focus on affirmative action measures in order to overcome the persistent effects of past patterns of discrimination against black persons, women and people with disabilities, and to monitor the impact of these measures. It also asks the Government to keep it informed on the further skills development programmes carried out and the progress achieved, including statistical data, disaggregated by race, gender and occupational level.

10. Persons with disabilities. The Committee notes the reference made by the Government to the Code of Good Practice on Managing Disability which was developed by the Commission for Employment Equity to assist employers with guidelines on equitable management of disability issues in the workplace. The Committee also takes note of the Integrated National Disability Strategy which shall direct all government responses to people with disabilities. The Committee asks the Government to supply a copy of the Code of Good Practice on Managing Disability and keep it informed as to the extent to which it is applied by employers in dealing with disability issues in the workplace. The Committee also invites the Government to provide information on the practical impact of the Integrated National Disability Strategy.

11. Indigenous peoples. The Committee notes that according to the report on the Mission to South Africa of the UN Special Rapporteur on the situation of indigenous peoples, there are six large groups in South Africa who identify themselves as indigenous, namely three main San peoples (!Xun, Khwe and Khomani), various Nama descendants (Khoekhoen), the Griqua, the Koranna descendants and the “revivalist Khoisan” (E/CN.4/2006/78/Add.2). They all tend to be highly marginalized and concentrated at the lower end of the socio-economic scale. The Committee also notes that in 2000 the South African Human Rights Commission prepared an extensive study on indigenous peoples’ rights and in 2004 the Government Cabinet adopted a memorandum that would lead to an official policy on recognizing “vulnerable indigenous communities”. Additionally, the Committee notes that according to the 2003 Report of the African Commission on Human and Peoples’ Rights on indigenous populations/communities, South Africa provides an “encouraging example of an attempt to safeguard the land rights of indigenous communities” (p. 34). The Committee, however, notes that in its 2006 Concluding Observations on South Africa the UN Committee on the Elimination of Racial Discrimination (CERD) voiced its concern about the situation of indigenous peoples in South Africa and recommended that the Government take special measures in that regard (CERD/C/ZAF/CO/3, paragraph 19). The Committee recalls that Article 5(2) of the Convention contemplates the adoption of special measures to meet the particular requirements of persons who are generally recognized as requiring special protection, such as indigenous peoples. The Committee would therefore appreciate being informed by the Government on the special measures taken or envisaged to address the discrimination historically suffered by indigenous peoples in employment and occupation. It also asks the Government to provide copies of the study on indigenous peoples’ rights undertaken by the South African Human Rights Commission and to supply information on whether the official policy on recognizing vulnerable indigenous communities has been adopted. Should this be the case, please provide a copy of this policy.

12. Part IV of the report form. Enforcement. The Committee notes the extensive information on judicial decisions concerning discrimination in employment and occupation provided by the Government. Nevertheless, the Committee observes that according to the 2006 CERD general observations on South Africa there exist major difficulties in access to justice, especially for members of the most disadvantaged groups, including indigenous peoples, and those unfamiliar with English or Africaans (CERD/C/ZAF/CO/3, paragraph 24). The Committee invites the Government to continue to provide information on relevant court rulings. Noting the difficulties faced by some groups in accessing  justice, the Committee asks the Government to provide information on any measures taken or envisaged to address this problem.

13. Part V of the report form. Practical application. The Committee notes that the National Policy Framework on Women Empowerment and Gender Equality has now institutionalized gender mainstreaming. It also notes the general description of the tasks to be performed by the Commission on Gender Equality, the Office on the Status of Women, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, included in the Government’s report. The Committee would appreciate receiving information on the practical activities carried out by these bodies and the impact of the National Policy Framework on Women Empowerment and Gender Equality.