Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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

Article 2(2)(c) of the Convention. Work of prisoners for private enterprises. In its previous comments, the Committee noted that, pursuant to sections 37(1)(b), 40(1) and 40(2) of the Correctional Services Act of 1998, a sentenced offender is obliged to perform labour. In addition, by virtue of section 23(2)(a) of the Correctional Service Regulations, private entities are allowed to hire convicted persons to perform labour against a prescribed tariff. The Committee noted that offenders who perform labour were paid a gratuity, and that the hirers of prison labour were responsible for performing the duties of correctional officers in terms of safety, security and care. It observed that the described working conditions of prisoners for private enterprises did not appear to approximate a free labour relationship in terms of wages or measures related to occupational safety and health, and requested the Government to take the necessary measures to ensure that prisoners might only perform work for private enterprises with their formal and informed consent and in conditions of work approximating a free labour relationship.

Noting that this issue has been raised since 2010, the Committee notes with regret the absence of information in the Government’s report on this point. The Committee observes that, according to the Strategic Plan for 2015/2016–2019/2020 of the Department of Correctional Services, public-private partnerships were concluded in 2000 for the design, construction, financing and operation of the Mangaung and Kutuma-Sinthumule correctional centres, for a duration of 25 years. The Committee further notes that, according to the prison visit report of the Constitutional Court of South Africa, the Mangaung correctional centre houses 2,982 inmates (page 2). The Committee once again recalls that, under Article 2(2)(c) of the Convention, the term “forced or compulsory labour” shall not include any work or service exacted from any person as a consequence of a conviction in a court of law but only if two conditions are met, namely: that the said work or service is carried out under the supervision and control of a public authority; and that the said person is not hired to, or placed at the disposal of private individuals, companies or associations. If either of the two conditions is not observed, compulsory labour exacted from convicted persons under these circumstances is prohibited by virtue of Article 1(1) of the Convention. Therefore, prisoners’ work for private entities is permissible under Article 2(2)(c) only if prisoners voluntarily enter into such an employment relationship without being subjected to pressure or the menace of any penalty, and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal, free and informed consent of the person 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 (2012 General Survey on the fundamental Conventions, paragraphs 279 and 291). The Committee therefore requests the Government to take the necessary measures without delay to ensure that convicted persons who perform work for private entities undertake it voluntarily, with their formal, freely given and informed consent, and with working conditions approximating those of a free labour relationship. The Committee requests the Government to provide information on the progress made in this regard.