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

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

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee notes that, according to court rulings of the High Court of South Africa and the Supreme Court of Appeal of South Africa, the offence of public violence consists in the unlawful and intentional commission, together with a number of people, of an act or acts which assume serious dimensions and which are intended forcibly to disturb public peace and tranquillity or to invade the rights of others (for instance, in case no. SH187/2018 and case no. 444/08). It further notes that, in the case no. SH187/2018 of the High Court of South Africa, the accused was sentenced to one year of imprisonment (during which prison labour may be imposed, according to section 37(1)(b) of the Correctional Services Act, 1998), suspended for a period of three years, for acts of unlawful assembly causing the road to be blocked. The Committee requests the Government to provide information on the manner in which the concept of public violence is interpreted by the courts, and to specify the legal provisions on which the courts have based their interpretation. It also requests the Government to provide examples of the acts that have given rise to penalties for public violence and to specify the nature of the penalties imposed.

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

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.

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

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.

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

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 further noted that the Merchant Shipping Act also provided for penalties of imprisonment (which involves an obligation to perform labour, pursuant to section 37(1)(b) of the Correctional Services Act, 1998) for breaches of discipline by seafarers. Particularly, Chapter 4 of the Act provides for penalties of imprisonment (pursuant to section 313) for the following offences: 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. However, 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 notes the draft Merchant Shipping Amendment Bill, submitted with the Government’s report. The Committee notes with concern that this draft Bill does not amend any of the abovementioned provisions, which have been raised by the Committee since 2004, concerning the application of this Convention. The Committee therefore urges the Government to revise the draft Merchant Shipping Amendment Bill 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, in conformity with Article 1(c) of the Convention. It also requests the Government to take the necessary measures to ensure that sections 321 and 322 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. The Committee requests the Government to provide information in its next report on the progress made in this regard.

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

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) constitute forced or compulsory labour as a means of labour discipline and are thus incompatible with Article 1(c) of the Convention. The Committee noted that the Merchant Shipping Act also provided for penalties of imprisonment (involving an obligation to perform labour, under section 37(1)(b) of the Correctional Services Act, 1998) for breaches of discipline by seafarers. 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 incompatible with Article 1(c) of the Convention. However, the Committee noted the Government’s indication that the Merchant Shipping Act was being reviewed in light of the issues raised under Article 1(c) of the Convention, and that the Government had put forward proposed amendments to the Merchant Shipping Act in order to enable the country to ratify both the Maritime Labour Convention, 2006 (MLC, 2006), and the Work in Fishing Convention, 2007 (No. 188).

The Committee notes the Government’s indication that the proposed amendments to the Merchant Shipping Act have been submitted to the National Economic Development and Labour Council (NEDLAC). The Committee notes the Government’s indication that these amendments address the employment conditions of seafarers, involving particularly a modernization of the provisions of Chapter 4 of the Merchant Shipping Act. In this regard, the Committee notes that Chapter 4 provides for penalties of imprisonment (pursuant to section 313) for the following offences: 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 requests the Government to take the necessary measures, in the framework of the revision of Chapter 4 of the Merchant Shipping Act, to ensure that the offences outlined in sections 174(2)(b), (c), (d) and (f), as well as sections 175(1)–(2) and 176(1) and (2) are not punishable with penalties of imprisonment involving compulsory labour, where the ship or the life or health of persons are not endangered, in conformity with Article 1(c) of the Convention. Moreover, the Committee requests the Government to take the necessary measures to ensure that sections 321 and 322 of the Merchant Shipping Act (providing for the forcible conveyance of seafarers on board a ship) 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. The Committee requests the Government to provide information in its next report on the progress made in this regard, and to provide a copy of the revised Merchant Shipping Act, once adopted.

Communication of texts. The Committee once again requests the Government to supply copies of the provisions governing the press, public assemblies, meetings and demonstrations, so that the Committee can ascertain their conformity with the Convention.

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

Communication of texts. The Committee again requests the Government to supply copies of the provisions governing the press, public assemblies, meetings and demonstrations, so that the Committee could ascertain their conformity with the Convention.

Article 1(c) and (d) of the Convention. Disciplinary measures applicable to seafarers. The Committee previously noted that penalties of imprisonment (involving an obligation to perform labour, under section 37(1)(b) of the Correctional Services Act, 1998) may be imposed on a seafarer under the following provisions of the Merchant Shipping Act, 1951, as amended:

–      under section 174(2)(c), read in conjunction with section 313(2), if a seafarer is guilty of continued wilful disobedience to lawful commands or continued wilful neglect of duty;

–      under section 174(2)(d), read in conjunction with section 313(2), if a seafarer combines with any of the crew to disobey lawful commands, or to neglect duty, or to impede the navigation of the ship or retard the progress of the voyage.

Moreover, sections 321 and 180(2)(b) of the Merchant Shipping Act provide for the forcible conveyance of seafarers on board ship to perform their duties.

The Committee observes that provisions of section 174(2)(c) and (d) are 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. In fact, section 174(2)(c) and (d) provides for the imposition of sanctions involving compulsory labour as a means of labour discipline (and possibly as a punishment for having participated in strikes) and is thus incompatible with Article 1(c) (and, in so far as applicable in case of strikes, to Article 1(d)) of the Convention.

As regards provisions of sections 321 and 180(2)(b) concerning forcible conveyance of seafarers on board ship to perform their duties, the Committee recalls 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) constitute forced or compulsory labour as a means of labour discipline and are thus incompatible with the Convention.

The Committee previously noted the Government’s indication that Chapter 4 of the Merchant Shipping Act, 1951, is being reviewed in the light of the issues raised under Article 1(c) and (d) of the Convention. In its latest report, the Government states that the Department of Transport has put forward proposed amendments to the Merchant Shipping Act in order to enable the country to ratify both the Maritime Labour Convention, 2006, and the Work in Fishing Convention, 2007 (No. 188). The Government also indicates that the proposed amendments have been tabled at the National Economic Development and Labour Council (NEDLAC) for comments and inputs from the social partners.

The Committee trusts that the proposed amendments to the Merchant Shipping Act, 1951, will be adopted in the near future and the above provisions will be brought into conformity with the Convention. It requests the Government to supply, in its next report, information on the progress achieved in this regard.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Communication of texts. The Committee has noted the Broadcasting Act, No. 4 of 1999, and the Electronic Communications Act, No. 36 of 2005, annexed to the Government’s report. It again requests the Government to supply copies of the provisions governing the press, public assemblies, meetings and demonstrations, so that the Committee could ascertain their conformity with the Convention.

Article 1(c) and (d) of the Convention. Disciplinary measures applicable to seafarers. In its earlier comments, the Committee noted that penalties of imprisonment (involving an obligation to perform labour, under section 37(1)(b) of the Correctional Services Act, 1998) may be imposed on a seafarer under the following provisions of the Merchant Shipping Act, 1951, as amended:

–      under section 174(2)(c), read in conjunction with section 313(2), if a seafarer is guilty of continued wilful disobedience to lawful commands or continued wilful neglect of duty;

–      under section 174(2)(d), read in conjunction with section 313(2), if a seafarer combines with any of the crew to disobey lawful commands, or to neglect duty, or to impede the navigation of the ship or retard the progress of the voyage.

Sections 321 and 180(2)(b) of the Merchant Shipping Act provide for the forcible conveyance of seafarers on board ship to perform their duties.

The Committee pointed out that only sanctions relating to acts that are likely to endanger the safety of the ship or the life or health of persons do not come within the scope of the Convention (see also the explanations contained in paragraphs 179 and 180 of the Committee’s General Survey of 2007 on the eradication of forced labour). The Committee observed that provisions of section 174(2)(c) and (d) are 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. On the contrary, section 174(2)(c) and (d) provides for the imposition of sanctions involving compulsory labour as a means of labour discipline (and possibly as a punishment for having participated in strikes) and is thus incompatible with Article 1(c) (and, in so far as applicable in case of strikes, to Article 1(d)) of the Convention.

As regards provisions of sections 321 and 180(2)(b) concerning forcible conveyance of seafarers on board ship to perform their duties, the Committee pointed out that measures to ensure the due performance by a worker of his service under compulsion of law (in the form of physical constraint or the menace of a penalty) constitute forced or compulsory labour as a means of labour discipline and are thus incompatible with the Convention (see also the explanations contained in paragraph 171 of the abovementioned General Survey on the eradication of forced labour).

The Committee has noted the Government’s indication in the report that Chapter 4 of the Merchant Shipping Act, 1951, is being reviewed in the light of the issues raised under Article 1(c) and (d) of the Convention. The Committee expresses the firm hope that the necessary measures will soon be taken to bring the above provisions of the Merchant Shipping Act into conformity with the Convention and that the Government will supply, in its next report, information on the progress made in this regard.

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

The Committee notes the Government’s report, including the Independent Media Commission Act, No. 148 of 1993, annexed to the report, and requests the Government to supply copies of more general provisions governing the press and other media, as well as public assemblies, meetings and demonstrations, so that the Committee could ascertain their conformity with the Convention.

Article 1(c) and (d) of the Convention. Disciplinary measures applicable to seafarers. The Committee previously noted that penalties of imprisonment (involving an obligation to perform labour, under section 37(1)(b) of the Correctional Services Act, 1998) may be imposed on a seafarer under the following provisions of the Merchant Shipping Act, 1951, as amended:

-         under section 174(2)(c), read in conjunction with section 313(2), if a seafarer is guilty of continued wilful disobedience to lawful commands or continued wilful neglect of duty;

-         under section 174(2)(d), read in conjunction with section 313(2), if a seafarer combines with any of the crew to disobey lawful commands, or to neglect duty, or to impede the navigation of the ship or retard the progress of the voyage.

Sections 321 and 180(2)(b) of the Merchant Shipping Act provide for the forcible conveyance of seafarers on board ship to perform their duties.

The Committee pointed out, referring to the explanations in paragraphs 117 to 119 and 125 of its General Survey of 1979 on the abolition of forced labour, that only sanctions relating to acts that are likely to endanger the safety of the ship or the life or health of persons do not come within the scope of the Convention. The Committee observed that the provisions of section 174(2)(c) and (d) are 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, as is section 174(1), which does not come under the purview of the Convention. On the contrary, section 174(2)(c) and (d) provides for the imposition of sanctions involving compulsory labour as a means of labour discipline (and possibly as a punishment for having participated in strikes) and is thus incompatible with Article 1(c) (and, in so far as applicable in case of strikes, to Article 1(d)) of the Convention.

As regards the provisions of sections 321 and 180(2)(b) concerning forcible conveyance of seafarers on board ship to perform their duties, the Committee pointed out, referring to paragraph 110 of its General Survey of 1979 on the abolition of forced labour, that measures to ensure the due performance by a worker of his service under compulsion of law (in the form of physical constraint or the menace of a penalty) constitute forced or compulsory labour as a means of labour discipline and are thus incompatible with the Convention.

The Committee notes the Government’s brief indication in the report that this matter has been brought before the relevant bodies for examination and recommendation and reiterates its hope that the necessary measures will be taken to bring the above provisions of the Merchant Shipping Act into conformity with the Convention. It requests the Government to supply, in its next report, information on the progress made in this regard.

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

The Committee has noted the Government’s report. It has noted, in particular, the Criminal Law Amendment Act, No. 105 of 1997, communicated by the Government. The Committee again requests the Government to supply, with its next report, copies of legislation governing the press and other media, as well as public assemblies, meetings and demonstrations, so that the Committee could ascertain its conformity with the Convention.

Article 1(c) and (d) of the Convention. The Committee has noted that penalties of imprisonment (involving an obligation to perform labour, under section 37(1)(b) of the Correctional Services Act, 1998) may be imposed on a seafarer under the following provisions of the Merchant Shipping Act, 1951, as amended:

-  under section 174(2)(c), read in conjunction with section 313(2), if a seafarer is guilty of continued wilful disobedience to lawful commands or continued wilful neglect of duty;

-  under section 174(2)(d), read in conjunction with section 313(2), if a seafarer combines with any of the crew to disobey lawful commands, or to neglect duty, or to impede the navigation of the ship or retard the progress of the voyage.

Sections 321 and 180(2)(b) of the Merchant Shipping Act provide for the forcible conveyance of seafarers on board ship to perform their duties.

The Committee refers to the explanations in paragraphs 117-119 and 125 of its 1979 General Survey on the abolition of forced labour, where it pointed out that only sanctions relating to acts that are likely to endanger the safety of the ship or the life or health of persons do not come within the scope of the Convention. The Committee observes that provisions of section 174(2)(c) and (d) are 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, as is section 174(1), which does not come under the purview of the Convention. On the contrary, section 174(2)(c) and (d) provides for the imposition of sanctions involving compulsory labour as a means of labour discipline (and possibly as a punishment for having participated in strikes) and is thus incompatible with Article 1(c) (and, in so far as applicable in case of strikes, to Article 1(d)) of the Convention.

As regards provisions of sections 321 and 180(2)(b) concerning forcible conveyance of seafarers on board ship to perform their duties, the Committee points out, referring to paragraph 110 of its 1979 General Survey on the abolition of forced labour, that measures to ensure the due performance by a worker of his service under compulsion of law (in the form of physical constraint or the menace of a penalty) constitute forced or compulsory labour as a means of labour discipline and are thus incompatible with the Convention.

The Committee hopes that the necessary measures will be taken to bring the above provisions of the Merchant Shipping Act into conformity with the Convention, and that the Government will supply information on the measures taken or contemplated.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes with interest the information provided by the Government in its first and second reports on the application of the Convention.

Article 1(a) of the Convention. The Committee requests the Government to supply copies of legislation governing the press and other media, so that the Committee can ascertain their conformity with the Convention. It would be grateful if the Government would supply a full updated text of the Criminal Code.

Article 1(c). The Committee requests the Government to indicate any provisions governing disciplinary measures applicable to civil servants and supply copies thereof. It would be grateful if the Government would indicate any sanctions applicable to seafarers for various breaches of labour discipline, such as desertion, absence without leave or disobedience, and supply copies of relevant texts.