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

Abolition of Forced Labour Convention, 1957 (No. 105) - South Africa (Ratification: 1997)

Article 1(c) of the Convention. Disciplinary measures applicable to seafarers. The Committee previously noted that sections 321, 322 and 180(2)(b) of the Merchant Shipping Act of 1951, as amended, provide for the forcible conveyance of seafarers on board ship to perform their duties, and recalled that measures to ensure the due performance of a worker’s service under compulsion of law (in the form of physical constraint or the menace of a penalty) were incompatible with Article 1(c) of the Convention. The Committee also noted that, pursuant to section 313, the Act also provided for penalties of imprisonment (which involves an obligation to perform labour, according to section 37(1)(b) of the Correctional Services Act, 1998) for breaches of discipline by seafarers, including wilfully disobeying any lawful command or neglecting duty (section 174(2)(b) and (c)); combining with any of the crew to disobey lawful commands, neglect duty, impede the navigation of the ship or retard the progress of the voyage (section 174(2)(d)); preventing, hindering or retarding the loading, unloading or departure of the ship (section 174(2)(f)); desertion (section 175(1) and (2)); and absence without leave (section 176(1) and (2)). The Committee observed that these provisions were not limited to acts or omissions leading to the immediate loss, destruction or serious damage of the ship, or endangering the life of, or causing injury to, persons on board and were thus also incompatible with Article 1(c) of the Convention.

The Committee noted the Government’s indication that the Merchant Shipping Act was being reviewed and that amendments had been developed in this regard. The Committee also noted with concern that the draft Merchant Shipping Amendment Bill did not amend any of the abovementioned provisions. The Committee therefore urged the Government to revise the draft Merchant Shipping Amendment Bill with a view to achieving conformity with Article 1(c) of the Convention.

The Committee notes the ratification by South Africa of the Maritime Labour Convention, 2006 (MLC, 2006) on 20 June 2013, and that the Merchant Shipping Amendment Bill was approved by the President in October 2015 following the entry into force of the MLC, 2006. The Committee notes that the Government’s report contains no information in this regard. The Committee notes with concern that the Merchant Shipping Amendment Bill of 2015 does not amend any of the abovementioned provisions which impact the application of this Convention. The Committee expresses the firm hope that the Merchant Shipping Act of 1951 will be reviewed, with a view to achieving conformity with Article 1(c) of the Convention. Particularly, it requests the Government to take the necessary measures to ensure that the offences outlined in sections 174(2)(b), (c), (d) and (f), as well as sections 175(1) and (2) and 176(1) and (2) of the Merchant Shipping Act are not punishable with penalties of imprisonment involving compulsory labour, where the ship or the life or health of persons are not endangered. It also requests the Government to take the necessary measures to ensure that sections 321, 322 and 180(2)(b) of the Merchant Shipping Act are repealed, or to restrict their application to situations where the ship or the life or health of persons are endangered, in conformity with the Convention.