Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Forced Labour Convention, 1930 (No. 29) - South Africa (Ratification: 1997)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Strengthening the legal framework. The Committee previously noted the adoption of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007, which contains transitional provisions relating to trafficking in persons for sexual purposes (sections 70 and 71). It also noted that a Bill to address trafficking in persons was prepared in 2008 by the South African Law Commission on Trafficking in Persons. It expressed the hope that comprehensive legislation on trafficking in persons would soon be adopted, and requested information on measures taken in this regard.

The Committee notes with regret an absence of information on this point in the Government’s report. The Committee also notes that the Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations of 5 April 2011, urged the Government to expedite the adoption of a Bill specifically to address human trafficking (CEDAW/C/ZAF/CO/4, paragraph 28). The Committee requests the Government to take the necessary measures to ensure that comprehensive anti-trafficking legislation is adopted in the near future. It requests the Government to provide information on progress made in this regard in its next report.

2. Law enforcement. The Committee previously noted that, according to the International Organization for Migration (IOM), South Africa is a source, transit and destination country of trafficking for men, women and children.

The Committee notes the Government’s statement, in its report to CEDAW of 23 March 2010, that studies on trafficking in South Africa indicate that the country is both a key destination as well as a country of origin and transit point for individuals trafficked to and from Africa and Europe, as well as globally (CEDAW/C/ZAF/2-4, paragraph 6.8). The Government also states that, in acknowledging the seriousness of the situation, it has implemented measures to combat trafficking and developed bilateral and multi-lateral cooperation agreements focused on organized cross-border crime (CEDAW/C/ZAF/2-4, paragraph 6.6). The Committee further notes the information from the International Trade Union Confederation (ITUC) in a report for the World Trade Organization General Council on the Trade Policies of the Southern African Customs Union of 4 and 6 November 2009 entitled “Internationally recognized core labour standards in Botswana, Lesotho, Namibia, South Africa and Swaziland” that the Government, together with the IOM, has conducted training activities and workshops for hundreds of social workers and governmental and customs officials to improve recognition of trafficking victims. However, this report also states that corruption among the border police has facilitated the spread of the phenomenon, and that the Government has made little progress in its efforts to prosecute or convict suspected traffickers. The Committee therefore urges the Government to strengthen its efforts to prevent, suppress and combat human trafficking, and to take the necessary measures to ensure that all persons who engage in human trafficking, including complicit governmental officials, are subject to thorough investigations and robust prosecutions. In this regard, the Committee requests the Government to pursue its efforts to provide appropriate training to law enforcement officials, border officials and the judiciary in order to strengthen their capacity to combat trafficking in persons. It also requests the Government to provide information on the number of investigations, prosecutions, convictions and the penalties applied relating to human trafficking.

Articles 1(1) and 2(1). Freedom of career military personnel to terminate their service. The Committee previously requested a copy of the provisions applicable to military officers and other career military servicemen concerning their right to leave the service in time of peace, at their own request.

The Committee notes with interest that, pursuant to section 59(1)(A) of the Defence Act, a member of the Regular Force may resign following a notice period of three months, or with a shorter period as the Chief of the South African National Defence Force may determine. With regard to contracted members of the Defence Force, following the expiry of a member’s contract, this contract may only be extended by the Minister during time of war and only for a period of three months, pursuant to section 60 of the Defence Act.

Article 2(2)(c). 1. Work of prisoners for private enterprises. 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 Committee also noted the Government’s indication that Department Order B, Service Order (5) states that prisoners may be available to private hirers but that no offender is forced to perform such labour. In this regard, the Committee noted that under this Order, “prisoners who are required for the performance of skilled labour may only be provided to employers with the prior written authorization of the Commissioner” (Item I(xv)). However, as this Order did not appear to require the consent of the prisoner to be hired out, the Committee requested the Government to indicate provisions requiring voluntary consent of the prisoners concerned to work for private enterprises, as well as information on the wage determination of such prisoners.

The Committee notes the Government’s statement that, with regard to wage determination, the tariffs are determined in consultation with the National Treasury on an annual basis. The Committee also notes the Government’s reference in its report to section 40(3)(a) of the Correctional Services Act, which states that a sentenced offender may select the type of work he or she prefers to perform, if such choice is practicable and in accordance with an appropriate vocational programme. The Government also refers to section 40(5) of the Correctional Services Act, which states that a prisoner may never be instructed or compelled to work as a form of punishment or disciplinary measure. However, the Committee also notes that section 40(1) of the Correctional Services Act states that sufficient work must, as far as is practicable, be provided to keep prisoners active for a normal working day and a prisoner may be compelled to do such work.

While taking due note of the provisions in the Correctional Services Act, the Committee recalls that while Article 2(2)(c) of the Convention expressly prohibits that convicts are hired to or placed at the disposal of private individuals, companies or associations, work for private enterprises can be compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment. This arrangement necessarily requires the formal free and informed consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages, social security and occupational safety and health. The Committee therefore requests the Government to provide information on the relevant provisions or regulations requiring the voluntary consent of the prisoners concerned to work for private enterprises, as well as copies of any agreements concluded in this regard.

2. Community service performed for non-public entities. The Committee previously noted, that pursuant to sections 50–62 of the Correctional Services Act, persons under correctional supervision may be subject to community corrections, whereby the Correctional Supervision and the Parole Board and the Commissioner may stipulate that the person concerned performs community service and takes up and remains in employment.

The Committee notes the Government’s statement that community service is a legal instruction which requires an offender to perform a specified number of hours in a community service institution or public institution on an uncompensated basis. Offenders may be placed to perform community service in various state departments, hospitals and other medical institutions, schools, nursery schools, municipalities and local governmental institutions. Lastly, the Committee notes that, pursuant to section 51(2) of the Correctional Services Act, no order imposing community corrections may be made unless the offender agrees that such an order should be made.

Article 2(2)(e). Minor communal services. The Committee previously noted the Government’s indication that traditional leaders may ask their community members to perform work and it requested information on the nature of this work. The Committee notes the Government’s indication that the work performed by community members in this regard is of a voluntary nature, performed on a communal basis within a specific community.

Article 25. Penal sanctions. The Committee previously noted that pursuant to sections 48(2), 48(3) and 93(2) 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 and may be sentenced to a fine or imprisonment for a period of up to three years. The Committee requests the Government to provide information on the application, in practice, of sections 48(2), 48(3) and 93(2) of the Basic Conditions of Employment Act No. 75 of 1997, including the number of investigations, prosecutions, convictions and specific sentences applied. Please provide copies of the relevant court cases in this regard.