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

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

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.

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

Articles 1(1) and 2(1) of the Convention. Trafficking in Persons. In its previous comments, the Committee took note of the Prevention and Combating of Trafficking in Persons Act (PCTP Act) of 2013, which prohibits trafficking in persons and related activities, and provides for the protection of victims of trafficking. The PCTP Act also provides for the adoption of a National Policy Framework. The Committee further noted that the National Prosecuting Authority (NPA) was at the advanced stages of finalizing and issuing the directives for the implementation of the PCTP Act. In addition, prosecutors had undertaken training since 2013 on trafficking in persons and related matters. The Committee requested the Government to pursue its efforts to prevent, suppress and combat trafficking in persons.

The Government indicates in its report that it launched the Prevention and Combating of Trafficking in Persons National Policy Framework (NPF) on 25 April 2019, to promote a cooperative and aligned response to trafficking among all government departments and with civil society organizations engaged in assisting and supporting victims of trafficking. The NPF intends to support the implementation of the PCTP Act. Its strategic objectives are to: prevent trafficking in persons, including through awareness-raising and reducing vulnerability to trafficking and re-trafficking; establish a coordinated and cooperative institutional framework to combat trafficking; establish an adequate regulatory framework to combat trafficking; secure resources; and identify potential and presumed victims of trafficking and provide them with comprehensive assistance.

The Committee notes that the NPF contains a national anti-trafficking strategy, which outlines the strategic goals and specific objectives to be achieved to facilitate a comprehensive implementation of the PCTP Act, as well as a national anti-trafficking action plan, detailing how to achieve these goals and objectives.

In its report under the Worst Forms of Child labour Convention, 1999 (No. 182), the Government indicates the establishment of the National Inter-Sectorial Committee on trafficking in persons, consisting of national departmental representatives, the NPA and civil society organizations, which leads the implementation and administration of the PCTP Act at the national level. The Government also indicates in its report under Convention No. 182 that provincial trafficking in persons task teams and provincial rapid response teams were established to deal with and monitor complaints and, pending cases of trafficking in persons, and to provide support to victims.

The Government further indicates, in its report under the present Convention, that South Africa is a primary destination for trafficking in persons in the Southern African region and within Africa at large, and a country of origin and transit for trafficking in persons to Europe and North America. Men and women are trafficked for the purposes of labour and sexual exploitation. The Government reports that foreign male victims of forced labour have been detected on fishing vessels in South African territorial waters. It states that trafficking in persons is rooted in South Africa’s landscape due to the country’s deep structural inequalities and that a cultural shift and a systemic response are needed in this regard, including to detect suspicions of corruption.

The Committee notes the information from the United Nations Office on Drugs and Crime (UNODC) Regional Office for Southern Africa, according to which there is a limited number of shelters for male victims of trafficking in persons in South Africa.

The Committee notes that, although two regulations were adopted in August and October 2015 under sections 43(1)(a) and 43(3) of the PCTP Act, it does not appear that regulations envisaged under section 43(1)(b) and 43(2) of the PCTP Act were formulated and adopted. It notes that regulations under section 43(1)(a) of the PCTP Act relate to the creation of a mechanism to facilitate the implementation of the Act. Regulations under section 43(2) concern the recovery and reflection period for foreign victims of trafficking and their repatriation in their country of origin. Noting the efforts made to combat trafficking in persons, the Committee strongly encourages the Government to continue to take measures in this regard, especially in light of the prevalence of the phenomenon in the country. It requests it to provide information on the implementation and results of the national Policy Framework on prevention and combating of trafficking in persons, including in the areas of prevention of trafficking and identification of victims. It further requests the Government to provide information on the activities of the National Inter-Sectorial Committee on trafficking in persons, as well as of the provincial trafficking in persons task teams and provincial rapid response teams, and on the impact of these activities on the reduction of trafficking in persons. It also requests the Government to indicate the assistance and protection services provided to victims of trafficking, as well as the number of victims that have benefited from such services. Lastly, the Committee requests the Government to provide information on any regulations made under sections 43(1)(b) and 43(2) of the PCTP Ac, and, where possible, to provide a copy of them.

Article 25. Penal sanctions. The Committee previously noted that section 13(a) of the PCTP Act provides that a person convicted of trafficking is liable to a fine or imprisonment, up to life imprisonment. It observed that persons convicted of trafficking in persons might be punished only with a fine. The Committee accordingly requested the Government to provide information on the application of the PCTP Act, in particular on the specific penalties imposed on persons under section 13(a).

The Committee notes the absence of information in the Government’s report in this respect. It notes the 2018/2019 Annual Report of the South African police service, which indicates that between 1 April 2018 and 31 March 2019, a total of 448 victims of trafficking in persons were rescued (page 214). Referring to its 2012 General Survey on the fundamental Conventions, the Committee recalls that the possibility of imposing only a fine on a person committing the offence of trafficking in persons does not constitute a sufficiently effective penalty, in light of the seriousness of the violation and the dissuasive character that the sanction should have (paragraph 319). The Committee urges the Government to take the necessary measures to ensure thorough investigations and prosecutions of the perpetrators of the above-mentioned cases of trafficking in persons that have been uncovered by the South African police service, and to provide information on any convictions and penalties imposed on these perpetrators. It once again requests the Government to supply information on the application in practice of the provisions of the PCTP Act regarding trafficking in persons, including the number of persons convicted, as well as the number and nature of penalties imposed.

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

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

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).

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

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.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Strengthening the legal framework. The Committee previously noted the adoption of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007, which contains transitional provisions relating to trafficking in persons for sexual purposes (sections 70 and 71). It also noted that a Bill to address trafficking in persons was prepared in 2008 by the South African Law Commission on Trafficking in Persons. It expressed the hope that comprehensive legislation on trafficking in persons would soon be adopted, and requested information on measures taken in this regard.

The Committee notes with regret an absence of information on this point in the Government’s report. The Committee also notes that the Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations of 5 April 2011, urged the Government to expedite the adoption of a Bill specifically to address human trafficking (CEDAW/C/ZAF/CO/4, paragraph 28). The Committee requests the Government to take the necessary measures to ensure that comprehensive anti-trafficking legislation is adopted in the near future. It requests the Government to provide information on progress made in this regard in its next report.

2. Law enforcement. The Committee previously noted that, according to the International Organization for Migration (IOM), South Africa is a source, transit and destination country of trafficking for men, women and children.

The Committee notes the Government’s statement, in its report to CEDAW of 23 March 2010, 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 (CEDAW/C/ZAF/2-4, paragraph 6.8). The Government also states that, in acknowledging the seriousness of the situation, it has implemented measures to combat trafficking and developed bilateral and multi-lateral cooperation agreements focused on organized cross-border crime (CEDAW/C/ZAF/2-4, paragraph 6.6). The Committee further notes the information from the International Trade Union Confederation (ITUC) in a report for the World Trade Organization General Council on the Trade Policies of the Southern African Customs Union of 4 and 6 November 2009 entitled “Internationally recognized core labour standards in Botswana, Lesotho, Namibia, South Africa and Swaziland” that the Government, together with the IOM, has conducted training activities and workshops for hundreds of social workers and governmental and customs officials to improve recognition of trafficking victims. However, this report also states that corruption among the border police has facilitated the spread of the phenomenon, and that the Government has made little progress in its efforts to prosecute or convict suspected traffickers. The Committee therefore urges the Government to strengthen its efforts to prevent, suppress and combat human trafficking, 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. In this regard, the Committee requests the Government to pursue its efforts to provide appropriate training to law enforcement officials, border officials and the judiciary in order to strengthen their capacity to combat trafficking in persons. It also requests the Government to provide information on the number of investigations, prosecutions, convictions and the penalties applied relating to human trafficking.

Articles 1(1) and 2(1). Freedom of career military personnel to terminate their service. The Committee previously requested a copy of the provisions applicable to military officers and other career military servicemen concerning their right to leave the service in time of peace, at their own request.

The Committee notes with interest that, pursuant to section 59(1)(A) of the Defence Act, a member of the Regular Force may resign following a notice period of three months, or with a shorter period as the Chief of the South African National Defence Force may determine. With regard to contracted members of the Defence Force, following the expiry of a member’s contract, this contract may only be extended by the Minister during time of war and only for a period of three months, pursuant to section 60 of the Defence Act.

Article 2(2)(c). 1. Work of prisoners for private enterprises. In its previous comments, the Committee noted that, under section 37(1)(b) of 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)). However, as this Order did not appear to require the consent of the prisoner to be hired out, the Committee requested the Government to indicate provisions requiring voluntary consent of the prisoners concerned to work for private enterprises, as well as information on the wage determination of such prisoners.

The Committee notes the Government’s statement that, with regard to wage determination, the tariffs are determined in consultation with the National Treasury on an annual basis. The Committee also notes the Government’s reference in its report to section 40(3)(a) of the Correctional Services Act, which 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. The Government also refers to section 40(5) of the Correctional Services Act, which states that a prisoner may never be instructed or compelled to work as a form of punishment or disciplinary measure. However, the Committee also notes 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.

While taking due note of the provisions in the Correctional Services Act, the Committee recalls that while 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, work for private enterprises can be compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment. This arrangement necessarily requires the formal free and informed consent of the persons 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. The Committee therefore requests the Government to provide information on the relevant provisions or regulations requiring the voluntary consent of the prisoners concerned to work for private enterprises, as well as copies of any agreements concluded in this regard.

2. Community service performed for non-public entities. The Committee previously noted, that pursuant to sections 50–62 of the Correctional Services Act, persons under correctional supervision may be subject to community corrections, whereby the Correctional Supervision and the Parole Board and the Commissioner may stipulate that the person concerned performs community service and takes up and remains in employment.

The Committee notes the Government’s statement that community service is a legal instruction which requires an offender to perform a specified number of hours in a community service institution or public institution on an uncompensated basis. Offenders may be placed to perform community service in various state departments, hospitals and other medical institutions, schools, nursery schools, municipalities and local governmental institutions. Lastly, the Committee notes that, pursuant to section 51(2) of the Correctional Services Act, no order imposing community corrections may be made unless the offender agrees that such an order should be made.

Article 2(2)(e). Minor communal services. The Committee previously noted the Government’s indication that traditional leaders may ask their community members to perform work and it requested information on the nature of this work. The Committee notes the Government’s indication that the work performed by community members in this regard is of a voluntary nature, performed on a communal basis within a specific community.

Article 25. Penal sanctions. The Committee previously noted that pursuant to sections 48(2), 48(3) and 93(2) of the 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. The Committee requests the Government to provide information on the application, in practice, of sections 48(2), 48(3) and 93(2) of the Basic Conditions of Employment Act No. 75 of 1997, including the number of investigations, prosecutions, convictions and specific sentences applied. Please provide copies of the relevant court cases in this regard.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee notes from the 2006 report by the International Organization for Migration (IOM) on the trafficking of women in East and South Africa, that South Africa is a source, transit and destination country for men, women and children, noting in particular the phenomenon of Thai women being trafficked to South Africa for the purpose of sexual exploitation. The Committee also notes from the IOM’s report that a Bill to address trafficking in persons was prepared in 2008 by the South African Law Commission on Trafficking in Persons. Referring also to its comments addressed to the Government under the Worst Forms of Child Labour Convention, 1999 (No. 182), likewise ratified by South Africa, the Committee has noted the adoption of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007, which contains transitional provisions relating to trafficking in persons for sexual purposes (sections 70 and 71).

The Committee hopes that comprehensive legislation on trafficking in persons will be adopted in the near future and that the Government will communicate a copy to the Office. The Committee also asks the Government  to provide information on measures taken or envisaged to prevent, suppress and punish human trafficking, including, in particular, information on measures taken to encourage victims of trafficking to bring complaints to the competent authorities, on the judicial proceedings which have been instituted under Sections 70 and 71 referred to above and on the penalties imposed on perpetrators.

Articles 1(1) and 2(1). Freedom of career military personnel to terminate their service. The Committee notes the information provided by the Government in its report regarding Section 59 of the Defence Act (Act 42 of 2002), which allows members of the South African National Defence Force (SANDF) to terminate their service by means of a voluntary resignation, subject to a notice period of three months, or of a shorter period as the Chief of the SANDF may determine and allows contracted members to leave the service upon the termination of their contract. The Committee asks the Government to provide, with its next report, copies of the above provisions of the Defence Act.

Article 2(2)(c). 1. Work of prisoners for private enterprises. The Committee notes that under Chapter V of Service Order 5 of the Department of Correctional Services, communicated by the Government in its report, “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 previously recalled that, under Article 2(2)(c) of the Convention, prisoners must not be hired to or placed at the disposal of private individuals, companies, or associations. However, as explained in paragraphs 59–60 and
114–122 of the 2007 General Survey on the eradication of forced labour, work performed under conditions approximating a free labour relationship can be held compatible with the explicit prohibition in the Convention. This necessarily requires the free and informed consent of the persons 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.

The Committee therefore asks the Government to indicate provisions requiring voluntary consent of the prisoners concerned to work for private enterprises. The Committee also asks the Government to clarify, in its next report, the issue of the wage determination arrangements referred to in Item I of Service Order 5, mentioned above. Please also supply copies of any agreements concluded between the prisons and the private enterprises to which the prisoners are “hired out”, setting forth the terms and conditions of work.

2. Community service performed for non-public entities. The Committee takes note of the provisions of the Correctional Services Act No. 111 of 1998, concerning community service. The Committee notes, in particular, that community service is defined as a legal instruction requiring an offender to perform a specified amount of uncompensated work at a community service institution or public institution. These services must be rendered in compliance with a court order or under conditions set by the correctional supervision and parole board; offenders are assigned to perform these services on the basis of their talents, skills or documented community needs. The Committee notes that community services can be performed for, inter alia, charity organizations and welfare institutions.

The Committee asks the Government to indicate, in its next report, whether offenders assigned to work in charitable bodies and welfare institutions formally consent to doing such community work. Please also indicate what measures are taken to ensure that the work done is really in the general interest, and provide a list of authorized organizations and institutions, indicating the type of work performed.

Article 2(2)(e). Minor communal services. In its earlier comments, the Committee asked for information on the nature of works performed by traditional communities, in accordance with customs, customary law and applicable legislation, and on any guarantees provided to ensure that the members of traditional communities have the right to be consulted with regard to the need for such works. The Committee takes due note of the Government’s indication that the Department of Correctional Services does not have a mandate to deal with minor communal services performed by traditional communities. However, the Committee previously noted the Government’s White Paper on Traditional Leadership and Governance, issued in July 2003 by the Minister of Provincial and Local Government, indicating that it would introduce legislation to regulate the accountability of traditional leadership and authorities. Referring to paragraph 65 of the 2007 General Survey on the eradication of forced labour, the Committee draws the Government’s attention to the criteria under which compulsory communal services is not deemed to be “forced labour.” These criteria are: (1) the work is “minor,” i.e. related primarily to maintenance work and, in exceptional cases, to the erection of certain buildings intended to improve the social conditions of the population of the community; (2) the work is “communal,” i.e. performed in the direct interests of the community and does not relate to work intended to benefit a wider group; and (3) the members of the community or their direct representative (e.g. the village council) must have the right to be consulted in regard to the need for such services.

The Committee reiterates its request that the Government provide information on the nature of the works performed by these traditional communities, as regulated by the Minister of Provincial and Local Government under the White Paper on Traditional Leadership and Governance, and on the guarantees provided to ensure that the members of traditional communities have the right to be consulted with regard to the need for such works. The Committee further requests that the Government provide information on the anticipated legislation aimed at regulating the accountability of traditional leadership and authorities, in order to ensure that any of these customs and customary laws are in compliance with the Convention.

Article 25. Penal sanctions. The Committee had previously requested information from the Government on any legal proceedings instituted as a consequence of the application in practice of section 48(2) and (3) of the Basic Conditions of Employment Act No. 75 of 1997, under which 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 of section 93(2) of the same Act, under which a person convicted of an offence under section 48 may be sentenced to a fine or imprisonment for a period of up to three years. The Committee notes the Government’s statement in its latest report that there are currently no such legal proceedings, as no offence in breach of this provision has been reported or taken to courts so far. The Government further reports that no jurisdiction to this effect exists. The Committee requests the Government to provide, in its future reports, information on the application in practice of the above provisions of the Act, as soon as such information becomes available, indicating, in particular, the minimum sentence of imprisonment which could be imposed by the courts under these provisions.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Article 2(2)(c) of the Convention. Work of prisoners for private enterprises. The Committee notes the Government’s report received in August 2007. The Committee notes that, in reply to the Committee’s request for information on how it is guaranteed that prisoners who are made available to private hirers (pursuant to Department of Correctional Services Service Order B, Service Order 5), or who are employed in joint venture prisons (established under Chapter XIV of the Correctional Services Act) give their voluntary consent to such employment. The Government stated:

–           only willing inmates are assigned to this type of work and acknowledge work allocation by signing the minutes of the Case Management Committee;

–           only those inmates who choose to, will, on the given day, march out with work teams of private hirers;

–           in other words, whereas inmates are allocated to this type of work, they have a choice to go or not to go to work on a particular day.

The Government indicated that it had attached as an annex to its report a copy of the service orders referred to above; however, no attachment was received. The Committee therefore asks that the service orders be forwarded by the Government with its next report.

2. The Committee notes that the Government’s report contained no further reply on the following points.

3. The Committee recalled that, in addition to formal consent, there must be further guarantees and safeguards covering the essential elements of a labour relationship, such as a level of wages and social security corresponding to a free labour relationship, in order to remove the private employment of prisoners from the scope of Article 2(2)(c). The Committee again requests the Government to give details on such guarantees and safeguards in law and practice in its next report.

4. The Committee asked for information from the Government, including copies of any relevant interpretive administrative rules and guidelines, concerning the mechanics of the consent procedure prescribed in section 51(2) of Chapter VI (Community Corrections) of Correctional Services Act No. 111 of 1998, and how it has operated in practice. The Committee again requests the Government to give this information in its next report.

5. Articles 1(1), 2(1) and 2(2)(a). Compulsory military service. Career military servicemen. The Committee sought information about what, if any, guarantees are provided to ensure that services exacted for military purposes are used for purely military ends, and it also requested a copy of provisions applicable to military officers and other career military servicemen concerning their right to leave the service in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length. The Committee again requests the Government to give this information in its next report.

6. Article 2(2)(e). Minor communal services. The Committee asked for more detailed information on the nature of works performed by traditional communities, in accordance with customs, customary law and applicable legislation, and on any guarantees provided to ensure that the members of traditional communities have the right to be consulted with regard to the need for such works. The Committee again requests the Government to give this information in its next report.

7. Article 25. Penal sanctions. The Committee requested information on any legal proceedings instituted as a consequence of the application in practice of section 48(2) and (3) of Basic Conditions of Employment Act No. 75 of 1997, under which 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 of section 93(2) of the same Act, under which a person convicted of an offence under section 48 may be sentenced to a fine or imprisonment for a period of up to three years, and on the penalties imposed, as well as copies of relevant court decisions. The Committee again requests the Government to give this information in its next report.

8. The Committee trusts that the Government will reply to each of these aspects of the Committee’s previous direct request in its next report.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Articles 1(1) and 2(1) of the Convention. The Committee previously noted the Government’s indications that in some provinces there have been reports of a common occurrence, during harvesting months, where children are taken out of school and transported in truckloads to farms far away from their places of residence, and that labour inspectors were investigating these allegations. The Committee has noted the information supplied by the Government in its latest report on the results of these investigations. With reference to forced or compulsory child labour, the Committee notes that the Government has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182). In so far as Article 3(a) of Convention No. 182 provides that the worst forms of child labour include "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour", the Committee is of the view that the problem of forced or compulsory labour of children may be examined more specifically under Convention No. 182. The protection of children is enhanced by the fact that Convention No. 182 requires States which ratify it to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly asks the Government to henceforth refer to its comments on the application of Convention No. 182.

2. Article 2(2)(a). In its previous direct request, the Committee asked the Government to indicate what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends. It also requested the Government to supply a copy of provisions applicable to military officers and other career military servicemen as regards their right to leave the service in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length. Noting that the Government’s report contains no such information, the Committee hopes that the Government will provide the information requested in its next report.

3. Article 2(2)(c). In its previous comments, the Committee noted that, under section 37(1)(b) of 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 Government indicated in its 2000 report that Department Order B, Service Order (5), details orders of the President for the application of prison labour. Under these Orders, prisoners may be available to private hirers sworn in as temporary correctional officials, thus making it under "public authority" against payment. The Government also indicated that no offender is forced to perform such labour.

4. The Committee noted that Chapter XIV of Correctional Services Act No. 111 of 1998, allows the establishment of joint-venture prisons. The Government indicated in its 2000 report that, as part of the Government’s public/private partnership, there were initiatives relating to two prisons at Bloemfontein and Louis Trichardt which were supposed to be managed as a joint venture between the Department of Correctional Services and the private sector. The prisoners were supposed to work inside the prison premises as part of a structured day programme aimed at the development and training of the individual inmate.

5. The Committee observed that, under Article 2(2)(c) of the Convention, prisoners must not be hired to or placed at the disposal of private individuals, companies or associations. However, while this Article strictly prohibits that prisoners be hired to or placed at the disposal of private undertakings, the Committee has accepted, for the reasons set out in paragraphs 97-101 of the General Survey of 1979 on the abolition of forced labour, that schemes existing in certain countries under which prisoners may, particularly during the period preceding their release, voluntarily enter a normal employment relationship with private employers, do not fall within the scope of the Convention. As the Committee has repeatedly pointed out, only work performed in conditions of a free employment relationship can be held compatible with the explicit prohibition in Article 2(2)(c); this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of the consent, i.e. the basic obligation to perform prison labour and other restrictions on the prisoner’s freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relation such as a level of wages and social security corresponding to a free labour relationship, to remove employment from the scope of Article 2(2)(c).

6. The Committee therefore asked the Government to indicate how it is guaranteed that the person concerned is giving such voluntary consent, and to give details on the guarantees and safeguards established in law and practice. As the Government’s report once again contains no reply to these comments, the Committee hopes that the information requested will be provided in its next report. The Committee also reiterates its request for a copy of Department Order B, Service Order (5), referred to in the Government’s 2000 report.

7. Community corrections and consent of convicted persons to work for non-public entities. The Committee notes that, under section 51(2) of Chapter VI (Community Corrections) of the Correctional Services Act No. 111 of 1998, no order imposing community corrections may be made unless the person to be subjected to community corrections agrees that it should be made according to the stipulated conditions and undertakes to cooperate in meeting them. Among the stipulated conditions are that the person concerned does community service (section 52(b)), seeks employment (section 52(c)), or takes up and remains in employment (section 52(d)). The Committee recalls that the exception from the scope of the Convention provided for in Article 2(2)(c) of the Convention for compulsory work of convicted persons does not extend to their work for private entities, even if they are not for profit and even if they are under public supervision and control. However, such community work sentences could be imposed if the offender either requests to do such community work, or gives free and voluntary consent to so perform the work. The Committee would appreciate information from the Government, including copies of any relevant interpretive administrative rules and guidelines, concerning the mechanics of the consent procedure prescribed in section 51(2) of the Correctional Services Act No. 111 of 1998 and how it has operated in practice.

8. Article 2(2)(e). The Committee previously noted from the Government’s report that traditional leaders may ask their community members to perform work. According to the Government, such work performed by the community may not be the sole benefit of the traditional leader and may imply a project that is of benefit to the whole community, e.g. repairing roads and fences, etc. The Government also indicated that, in some traditional areas, legislation stipulates that communities must respect traditional leaders and must be obedient to their authority. In the Government’s view, the work exacted from the community members should not be seen as forced labour, but as "customary labour" that is voluntarily performed on a communal basis within a specific community. At the same time, the Government indicates that a problem may, however, arise within a traditional community regarding unlawful discrimination against a person for failing to show his obedience and respect for traditional leader.

9. The Committee notes from the White Paper on Traditional Leadership and Governance, issued in July 2003 by the Minister for Provincial and Local Government, the discussion of the structures of traditional leadership, which states in part:

Traditional leaders administered the affairs of their communities through customary structures. Each structure comprised the traditional leader, headmen and members of the community. Through these structures, a traditional leader coordinated the activities of his/her community, including ploughing and harvesting, hunting, war expeditions, ancestral worship, rituals and other traditional activities. In addition, through these structures, traditional meetings (izimbizo/dipitso) were called where the affairs of the community were discussed and disputes among members of the community were resolved.

The White Paper proposes that pre-colonial tribal councils be established according to custom and be renamed "traditional councils", with functions that include continuing to generally administer the affairs of the community in accordance with custom and tradition. The White Paper, in discussing the accountability of traditional leaders and structures, states that traditional structures must ensure that, at least once a year, a meeting of the whole community is called where the chief and his counsellors report on their activities of the preceding year, and that legislation to regulate the accountability of traditional leadership and authorities, as well as a code of conduct, would be introduced. The Committee notes the Traditional Leadership and Governance Framework Amendment Act, 2003, which embodies proposals in the White Paper, and which provides, among other things, for: recognition of traditional communities (section 2); the establishment by traditional communities of traditional councils (section 3), charged, among other things, with administering the affairs of the traditional community in accordance with customs and traditions (section 4(1)(a)) and performing the functions conferred by customary law, customs and statutory law (section 4(1)(l)); traditional leaders performing the functions provided for in terms of customary law and customs of the traditional community concerned and in applicable legislation (section 19); and codes of general conduct for traditional leaders and traditional councils (schedule).

10. While noting this information, the Committee recalls that Article 2(2)(e) exempts from the provisions of the Convention "minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community". Referring to paragraph 37 of the General Survey of 1979 on the abolition of forced labour, the Committee draws the Government’s attention to the criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory labour. These criteria are as follows: (1) the services must be "minor services", i.e. relate primarily to maintenance work; (2) the services must be "communal services" performed "in the direct interest of the community", and not related to the execution of works intended to benefit a wider group; and (3) the members of the community or their direct representatives must "have the right to be consulted in regard to the need for such services".

11. The Committee therefore requests once again that the Government provide more detailed information on the nature of works performed by traditional communities, in accordance with customs, customary law and applicable legislation, and that it indicate what guarantees are provided to ensure that the members of traditional communities have the right to be consulted with regard to the need for such works.

12. Article 25. The Committee previously noted that, under section 48(2) and (3), of the 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. By virtue of section 93(2) of the same Act, a person convicted of an offence in terms of section 48 may be sentenced to a fine or imprisonment for a period not longer than three years. While noting the Government’s brief indications concerning the application of the above provisions, the Committee once again requests the Government to supply information on any legal proceedings instituted as a consequence of their application, indicating penalties imposed and supplying copies of relevant court decisions.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Articles 1(1) and 2(1) of the Convention. With reference to its comments made under Conventions Nos. 138 and 182, likewise ratified by South Africa, the Committee has noted the Government’s indications in its report that in some provinces there have been reports of a common occurrence during harvesting months, where children are taken out of school and transported in truck loads to farms far away from their places of residence. According to the Government, it is alleged that it is due to collusion between farmers and local chiefs, and in some instances parents, due to poverty, give permission for their children to be used. The Committee has also noted the Government’s statement in the report that labour inspectors are investigating these allegations and requests the Government to provide in its next report information on the results of these investigations.

Article 2(2)(a). In its previous direct request, the Committee asked the Government to indicate what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends. It also requested the Government to supply a copy of provisions applicable to military officers and other career military servicemen as regards their right to leave the service in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length. Noting that the Government’s report contains no such information, the Committee hopes that the Government will not fail to provide the information requested in its next report.

Article 2(2)(c). In its previous comments, the Committee noted that, under section 37(1)(b) of 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 Government indicated in its 2000 report that Department Order B, Service Order (5), details orders of the president for the application of prison labour. Under these Orders, prisoners may be available to private hirers sworn in as temporary correctional officials, thus making it under "public authority" against payment. The Government also indicated that no offender is forced to perform such labour.

The Committee noted that Chapter XIV of Correctional Services Act No. 111 of 1998, allows the establishment of joint venture prisons. The Government indicated in its 2000 report that, as part of the Government’s public/private partnership, there were initiatives relating to two prisons at Bloemfontein and Louis Trichardt which were supposed to be managed as a joint venture between the Department of Correctional Services and the private sector. The prisoners were supposed to work inside the prison premises as part of a structured day programme aimed at the development and training of the individual inmate.

The Committee observed that, under Article 2(2)(c) of the Convention, prisoners must not be hired to or placed at the disposal of private individuals, companies or associations. However, while this Article strictly prohibits that prisoners be hired to or placed at the disposal of private undertakings, the Committee has accepted, for the reasons set out in paragraphs 97-101 of the General Survey of 1979 on the abolition of forced labour, that schemes existing in certain countries under which prisoners may, particularly during the period preceding their release, voluntarily enter a normal employment relationship with private employers, do not fall within the scope of the Convention. As the Committee has repeatedly pointed out, only work performed in conditions of a free employment relationship can be held compatible with the explicit prohibition in Article 2(2)(c); this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of the consent, i.e. the basic obligation to perform prison labour and other restrictions on the prisoner’s freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relation such as a level of wages and social security corresponding to a free labour relationship, to remove the employment from the scope of Article 2(2)(c).

The Committee therefore asked the Government to indicate how it is guaranteed that the person concerned is giving such voluntary consent, and to give details on the guarantees and safeguards established in law and practice. As the Government’s report contains no reply to these comments, the Committee hopes that the information requested will be provided in its next report. The Committee also reiterates its request for a copy of Department Order B, Service Order (5), referred to in the Government’s 2000 report.

Article 2(2)(e). The Committee previously noted from the Government’s report that traditional leaders may ask their community members to perform work. According to the Government, such work performed by the community may not be the sole benefit of the traditional leader and may imply a project that is of benefit to the whole community, e.g. repairing roads and fences, etc. The Government also indicated that in some traditional areas, legislation stipulates that communities must respect traditional leaders and must be obedient to their authority. In the Government’s view, the work exacted from the community members should not be seen as forced labour, but as "customary labour" that is voluntarily performed on a communal basis within a specific community. At the same time, the Government indicates that a problem may, however, arise within a traditional community whether a person cannot be discriminated against for failing to show his obedience and respect for traditional leader.

The Committee recalls in this connection that Article 2(2)(e) exempts from the provisions of the Convention "minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community". Referring to paragraph 37 of the General Survey of 1979 on the abolition of forced labour, the Committee draws the Government’s attention to the criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory labour. These criteria are as follows: (1) the services must be "minor services", i.e. relate primarily to maintenance work; (2) the services must be "communal services" performed "in the direct interest of the community", and not related to the execution of works intended to benefit a wider group; (3) the members of the community or their direct representatives must "have the right to be consulted in regard to the need for such services".

The Committee therefore requests the Government to provide a more detailed information on the nature of works performed by the traditional communities and to indicate what guarantees are provided to ensure that the members of the community shall have the right to be consulted with regard to the need for such works. The Committee again requests the Government to supply a copy of the White Paper on traditional leadership and institutions referred to in the Government’s 2002 report.

Article 25. The Committee previously noted that, under section 48(2) and (3), of the 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. By virtue of section 93(2) of the same Act, a person convicted of an offence in terms of section 48 may be sentenced to a fine or imprisonment for a period not longer than three years. While noting the Government’s brief indications concerning the application of the above provisions, the Committee requests the Government to supply information on any legal proceedings instituted as a consequence of their application, indicating penalties imposed and supplying copies of relevant court decisions.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes with interest the information provided by the Government in its first report and in its 2000 and 2001 reports on the application of the Convention. It would be grateful if the Government would provide, in its next report, additional information on the following points.

Article 2(2)(a) of the Convention. The Committee requests the Government to indicate what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends. It also requests the Government to supply copy of provisions applicable to military officers and other career military servicemen, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(c). The Committee notes that, under section 37(1)(b), of Correctional Services Act No. 111, 1998, every prisoner must perform any labour which is related to any development programme or which generally is designed to foster habits of industry. In it 2000 report, the Government indicates that Department Order B Service Order (5) details orders of the President for the application of prison labour. Under these Orders, prisoners may be available to private hirers sworn in as temporary correctional officials, thus making it under "public authority" against payment. The Government also indicates that no offender is forced to perform such labour. The Committee notes that Chapter XIV of Correctional Services Act No. 111, 1998, allows to be established joint venture prisons. In its 2000 report, the Government has indicated that, as part of the Government’s Public Private Partnership, initiatives relating to two prisons at Bloemfontein and Louis Trichardt, respectively, were supposed to allow to be established in the latter 2001. The prisoners were supposed to work inside the prison premises as part of a structured day programme aimed at the development and training of the individual inmate. They were supposed to be rewarded according to a system of modest gratuity and incentives with the following aims: to encourage commitment to work activities and development programmes; and to reward effort and good behaviour.

The Committee observes that, under Article 2(2)(c), of the Convention, prisoners must not be hired to or placed at the disposal of private individuals, companies or associations. As the Committee has pointed out in paragraphs 112-125 of its General Report to the 86th Session of the International Labour Conference (1998), only when performed in conditions approximating a free employment relationship, can work by prisoners for private companies be held compatible with the explicit prohibition of this Article; this necessarily requires the formal consent or the person concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as the payment of normal wages and social security, etc. The Committee therefore asks the Government to indicate how it guarantees that the person concerned is giving such voluntary consent, and to give details on the guarantees and safeguards established in law and practice. The Committee also asks the Government to supply a copy of Department Order B Service Order (5).

Article 2(2)(e). The Committee notes the information provided by the Government in its 2002 report, according to which traditional leaders may ask their community members to perform work. Such work performed by the community may, however, not be the sole benefit of the traditional leader but to the whole community, when they have to repair roads and fences. The Committee also notes that in some traditional areas, some legislation also stipulated that their communities must respect traditional leaders and they must be obedient to their authority. It requests the Government to provide detailed information on the nature of works performed by the traditional communities and to indicate what guarantees are provided to ensure that the members of the community shall have the right to be consulted in regard to the need for such works. The Committee also requests the Government to supply a copy of the final White Paper process on traditional leadership and traditional institution.

Article 25. The Committee notes that, under section 48(2) and (3), of the Basic Conditions of Employment Act No. 75, 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. By virtue of section 93(2) of the Basic Conditions of Employment Act No. 75, 1997, a person convicted of an offence in terms of section 48 of Act No. 75 may be sentenced to a fine or imprisonment for a period not longer than three years. The Committee requests the Government to supply information on the practical application of the abovementioned sections and to indicate the amount of the fine imposed under section 93(2) of the Basic Conditions of Employment Act No. 75, 1997.