Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Articles 1(1) and 2(1) of the Convention. Trafficking in Persons. The Committee previously noted the adoption of the Prevention and Combating of Trafficking in Persons Act (PCTP Act) in 2013, which prohibits the trafficking in persons, as well as debt bondage, using the services of victims of trafficking and facilitating trafficking in persons. Moreover, it contains measures for the protection of victims of trafficking. The Committee also noted that, the PCTP Act provides 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 further noted that, the PCTP Act requires the concerned government departments to issue national instructions and directives to be followed by their officials, including disciplinary steps in case of non-compliance.

The Committee notes the Government’s indication in its report that, the Minister of Justice, the National Commissioner of Police and the National Director of Public Prosecutions are responsible for issuing regulations, national instructions and directives respectively regarding the implementation of the PCTP Act, and that the National Prosecuting Authority (NPA) is at the advanced stages of finalising and issuing the directives in this regard. Before the adoption of the Act, the NPA had already established a task team to develop training materials based on the draft bill and the Palermo Protocol. Trainings of prosecutors on trafficking in persons and related matters have been undertaken since 2013, and are still ongoing. Currently over 300 prosecutors have been trained. 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 trafficking in persons are subject to thorough investigations and prosecutions. The Committee also requests the Government to continue providing information on measures taken to strengthen the capacity of law enforcement officials in this regard and on the numbers of investigations, prosecutions and convictions under the PCTP Act. It once again requests the Government to provide copies of the regulations adopted to operationalize this Act.

Article 2(2)(c). Work of prisoners for private enterprises. The Committee previously noted that, under sections 37(1)(b), 40(1) and 40(2) of the Correctional Services Act of 1998, a sentenced offender is obliged to perform labour, while he or she may select the preferred type of work, if such choice is practicable and in accordance with an appropriate vocational programme. The Committee further noted that, according to section 23(2)(a) of the Correctional Services Regulations, private enterprises and non-governmental organizations were allowed to hire offenders to perform labour against a prescribed tariff. The Government stated that the Department of Correctional Services paid all offenders who perform labour, including those working for private enterprises, a gratuity. The Government indicated that the hirers of prison labour were responsible to perform the duties of correctional officers in terms of safety, security and care.

The Committee notes the Government’s information that, according to sections 37(1)(b), 40(3) and (5) of the Correctional Service Act, offenders may be allocated to work in Production Workshops and Agriculture, yet they can voluntarily choose to leave and seek for other opportunities without punishment. The Government also indicates that, offenders placed at Production Workshops and Agriculture do not perform work as hired labour to external organisations. The Committee observes, however, that the above does not fall into the scope of work by prisoners for private enterprises. The Committee therefore notes that, the Government’s report does not contain new information relating to provisions or regulations requiring the voluntary consent of prisoners when they are hired to or placed at the disposal of private individuals, companies or associations.

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 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 to 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 once again 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, being 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 on the measures taken in this regard.

Article 25. Penal sanctions. Trafficking in persons. The Committee previously noted that, pursuant to section 13(a) of the Prevention and Combating of Trafficking in Persons Act (PCTP Act), a person convicted of trafficking is liable to a fine not exceeding 100 million South African Rand (ZAR) (US$7.2 million) or imprisonment, including imprisonment for life. The Committee therefore observed the persons convicted of trafficking in persons may be punished only with a fine. In this regard, the Committee recalled 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 could not be considered sufficiently effective.

The Committee notes the Government’s information that, the PCTP Act gives the court discretion to impose a fine in certain cases and emphasis is put on the fact that both imprisonment and fine may be imposed in some instances. Fines may be imposed for some perpetrators whose roles could be only accessory. In practice, with the restriction of sections 51(1) and 92 of the Criminal Law Amendment Act of 1997 regarding minimum sentences and the related provisions provided by the Prevention of Organised Crime Act, the court cannot impose only a fine. The Committee further notes the Government’s statement that, the trafficking in persons, especially children, is very serious offence and usually only be punished by imprisonment for life, unless there are persuasive considerations for not imposing it. The Committee also notes the Government’s information that, six cases have been finalized and perpetrators received penalties from ten years to life imprisonment, while 15 other cases are pending before courts. The Committee requests the Government to continue providing information on the application of the PCTP act, in particular on the specific penalties imposed on persons under its section 13(a).