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

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

Article 1(c) of the Convention. Disciplinary measures applicable to seafarers. In its previous comments, the Committee noted that certain provisions of the Merchant Shipping Act of 1951 were incompatible with Article 1(c) of the Convention. In particular, it noted that sections 321, 322 and 180(2)(b) provided for the forcible conveyance of seafarers on board ship to perform their duties. It also noted that, pursuant to section 313, penalties of imprisonment (during which prison labour may be imposed, according to section 37(1)(b) of the Correctional Services Act, 1998) might be imposed for breaches of discipline by seafarers, including: wilfully disobeying any lawful command or neglecting duty; 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; preventing, hindering or retarding the loading, unloading or departure of the ship; desertion; and absence without leave. The Committee noted, with concern, that the Merchant Shipping Amendment Act, 2015, did not amend any of the above-mentioned provisions, and expressed the firm hope that the Merchant Shipping Act of 1951 would be reviewed, to be in conformity with Article 1(c) of the Convention.

The Committee notes that the Government’s report does not provide any information on this point. The Committee takes note of the Merchant Shipping Bill, 2020, which was published for public comments in Government Gazette No. 43073 of 6 March 2020. The Committee observes that sections 397, 398 and 142(3) of the Merchant Shipping Bill, 2020, reproduce, in the same terms, sections 321, 322 and 180(2)(b) of the Merchant Shipping Act of 1951, on the forcible conveyance of seafarers on board ship. The Committee also notes that, according to section 372 of the Bill, penalties of imprisonment (during which prison labour may be imposed) may still be imposed for breaches of discipline by seafarers, including wilfully disobeying any lawful command or neglecting duty (section 134(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 134(2)(d)); preventing, hindering or retarding the loading, unloading or departure of the ship (section 134(2)(f)); desertion (section 138(1) and (2)); and absence without leave (section 139 (1) and (2)). The Committee is therefore bound to note with deep concern that the Merchant Shipping Bill, 2020, contains the same provisions as the Merchant Shipping Act of 1951, affecting the application of the Convention, despite repeated comments by the Committee since 2004. The Committee wishes to recall that Article 1(c) of the Convention expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline, covering both the due performance of a worker’s service under compulsion of law (in form of physical constraint or the menace of a penalty), and sanctions for breaches of labour discipline (such as disobedience, desertion or absence without leave) involving an obligation to perform labour. Only sanctions relating to acts that are likely to endanger the safety of the ship, or the life or health of persons (such as provided for in section 134(1) of the Merchant Shipping Bill, 2020), are excluded from the scope of application of the Convention. The Committee expresses the firm hope that the Government will take into account the Committee’s comments to review the Merchant Shipping Bill, 2020, with a view to bringing it into conformity with the Convention. In this regard, it urges the Government to ensure that breaches of discipline, especially those provided for in section 134(2)(b), (c), (d) and (f), section 138(1) and (2) and section 139(1) and (2) of the Merchant Shipping Bill, 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 urges the Government to repeal sections 397, 398 and 142(3), which allow for the forcible return of seafarers on board ship to perform their duties, or to restrict their application to situations where the ship or the life or health of persons are endangered.

The Committee is raising other matters in a request addressed directly to the Government.