Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Articles 1(1) and 2(1) of the Convention. Trafficking in persons. 1. Strengthening the legal framework. The Committee previously requested the Government to take the necessary measures to ensure that comprehensive anti-trafficking legislation was adopted.

In this connection, the Committee notes with interest the adoption of the Prevention and Combating of Trafficking in Persons Act, 2013, section 4(1) of which prohibits trafficking in persons. The Act also contains provisions prohibiting debt bondage (section 5), using the services of victims of trafficking (section 7) and facilitating trafficking in persons (section 8). Moreover, the Act contains measures for the protection of victims of trafficking, including the granting of a recovery and reflection period, measures for appropriate repatriation and provisions for the compensation of victims.

2. Law enforcement. The Committee previously noted the Government’s statement 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. The Committee also noted the information in a 2009 report from the International Trade Union Confederation that corruption among the border police had facilitated the spread of the phenomenon, and that the Government had made little progress in its efforts to prosecute or convict suspected traffickers.

The Committee notes that the Prevention and Combating of Trafficking in Persons Act contains measures for the adoption of a National Policy Framework to ensure a uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters relating to the trafficking in persons. The Committee also notes that the Act provides that the National Commissioner of the South African Police Services, the Departments of Home Affairs and Labour and the National Director of Public Prosecution Departments must issue national instructions and directives to be followed by their officials when addressing matters of trafficking in persons. Non-compliance with such directives may result in disciplinary steps, contributing to the effectiveness of the Act. The Government indicates that the operationalization of the law is dependent on the regulations made by a number of departments, and that this is receiving urgent attention. The Committee requests the Government to pursue its efforts to prevent, suppress and combat trafficking in persons, 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. The Committee asks the Government to provide information on measures taken to strengthen the capacity of law enforcement officials in this regard and on the number of investigations, prosecutions and convictions under the Prevention and Combating of Trafficking in Persons Act, 2013. Lastly, it requests the Government to provide copies of the regulations adopted to operationalize this Act.

Article 2(2)(c). Work of prisoners for private enterprises. In its previous comments, the Committee noted that, under section 37(1)(b) of the 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)). The Committee noted that section 40(3)(a) of the Correctional Services Act 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. Section 40(5) of the Correctional Services Act states that a prisoner may never be instructed or compelled to work as a form of punishment or disciplinary measure. However, the Committee also noted 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. The Committee requested information on the relevant provisions requiring the voluntary consent of the prisoners.

The Committee notes that the Government’s report does not contain new information relating to provisions or regulations requiring the voluntary consent of prisoners. However, the Committee notes the Government’s statement that private enterprises and non-governmental organizations are allowed to hire offenders to perform labour against a prescribed tariff. The Government states that the Department of Correctional Services pays all offenders who perform labour (including those working for private enterprises) a gratuity. The Government indicates that the hirers of prison labour are responsible to perform the duties of correctional officers in terms of safety, security and care.

Taking note of this information, the Committee observes that the described working conditions of prisoners for private enterprises do not appear to approximate a free labour relationship in terms of wages or measures related to occupational safety and health. The Committee therefore recalls that 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. However, with reference to its 2012 General Survey on the fundamental Conventions concerning rights at work, the Committee recalls that work by prisoners for private enterprises can be compatible with the Convention where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their formal, free and informed consent to work for private enterprises. In such a situation, work of prisoners for private parties would not be in violation of the Convention, since no compulsion is involved. Moreover, the Committee has considered that, in the prison context, the most reliable indicator of the voluntariness of labour is that the work is performed under conditions which approximate a free labour relationship, including wages, social security and occupational safety and health. The Committee therefore requests the Government to take the necessary measures to ensure that prisoners may only perform work for private enterprises with their formal and informed consent, and that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship. It requests the Government to provide information, in its next report, on the measures taken in this regard.

Article 25. Penal sanctions. 1. Trafficking in persons. The Committee notes that, pursuant to section 13(a) of the Prevention and Combating of Trafficking in Persons Act, a person convicted of trafficking in persons is liable to a fine not exceeding 100 million South African Rand (ZAR) or imprisonment, including imprisonment for life. The Committee therefore observes that persons convicted of trafficking in persons may be punished only with a fine. In this regard, the Committee recalls that Article 25 of the Convention provides that the exaction of forced or compulsory labour shall be punishable as a penal offence, and that legislation providing for a fine or imprisonment cannot be considered sufficiently effective. The Committee therefore requests the Government to indicate how this provision of the Act is applied in practice, providing in particular information on the specific penalties imposed on persons under section 13(a) of the Prevention and Combating of Trafficking in Persons Act.

2. Basic Conditions of Employment Act. The Committee previously noted that, pursuant to sections 48(2), 48(3) and 93(2) of 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. For a number of years, it requested information on the application of these provisions in practice.

The Committee once again notes the Government’s statement that there have been no cases reported relating to these provisions.