Interim Report - Report No 28, 1958

Case No 147 (South Africa) - Complaint date: 07-DEC-56 - Closed

1. 227. At its 17th Session (Geneva, May 1957) the Committee examined, a complaint, contained in three communications from the South African Congress of Trade Unions dated 7 and 29 December 1956 and 23 January 1957, in which it was alleged that nine of the principal officials of that organisation were among a number of persons who had been arrested in the Union of South Africa and charged with treason, and that, while the proceedings were in progress, the trade union activities of these trade union officials had been greatly restricted.
2. 228. The Government of the Union of South Africa having stated, in a communication addressed to the Director-General on 27 March 1957, that the whole case was sub judice, the Committee formulated the conclusions contained in paragraph 111 of its 26th Report, which reads as follows:
3. 111. In the present case it would appear that the accused, after the preliminary proceedings, have been released on bail, on certain conditions prescribed pursuant to legislation, pending their trials before the competent court. In these circumstances the Committee, following its practice in previous cases, considers it inappropriate to proceed with its own examination of the case at the present time while proceedings before the national courts are pending which are likely to afford the Committee information without which it may not be in a position to reach conclusions on the merits of the allegations. The Committee has therefore adjourned its examination of the merits of the case for the time being and recommends the Governing Body to request the Government to be good enough to inform it in due course as to the outcome of the legal proceedings pending in the South African courts and furnish copies of the judgments given in the case of those of the accused who are stated in the complaint to be trade union officials or members.
   • This recommendation was approved by the Governing Body at its 135th Session (Geneva, May-June 1957).
4. 229. The Director-General informed the Government of this decision in a communication dated 10 June 1957.
5. 230. At its 18th Session (Geneva, October 1957) the Committee further adjourned its examination of the case, pending the receipt of the information requested from the Government.
6. 231. The Director-General informed the Government of the Committee's decision by a letter dated 7 November 1957.
7. 232. The Government replied by a communication dated 21 November 1957. In this communication the Government refers to the fact that in the past it has furnished information to the Committee on Freedom of Association, in spite of its view that the establishment of the Committee was unconstitutional, and states that it is prepared to continue doing so in appropriate cases. However, declares the Government, the present case relates to legislation applicable not to trade unionists as such but to all citizens ; of the total of 156 persons accused only 21 are trade unionists and only nine of these appear to be connected with bodies affiliated to the complaining organisation. The Government considers that the question of the trial of certain persons on a charge of high treason " falls so clearly outside the competence of the International Labour Office " that it is " obliged to decline to entertain any further correspondence on the subject ".

A. A. The Committee's conclusions

1. 233. The Committee has followed the practice in earlier cases of not proceeding to examine matters which are the subject of pending judicial proceedings, provided that these proceedings are attended by proper guarantees of due process of law, because the pending judicial decision may make available information of assistance to the Committee in appreciating whether or not allegations are well-founded. While the Committee was influenced by the same view in its preliminary examination of the present case, it would not appear that the principle is applicable in a case in which the Government concerned declares that it is not prepared to furnish information as to the outcome of proceedings which have been instituted. In such circumstances the Committee considers that it should proceed to formulate its recommendations to the Governing Body.
2. 234. As the Government states, it has seen fit, in earlier cases relating to the Union of South Africa which have been examined by the Committee, to furnish observations on the substance of the allegations made in those cases, without prejudice to the view that it has consistently maintained that the establishment of the procedure for the examination of complaints of alleged infringements of the exercise of trade union rights is unconstitutional. In the present case, however, the Government declines to co-operate with the Committee as it has done in previous cases because it considers that the trial of persons, only a minority of whom are trade unionists, on charges of high treason under the law applicable to all citizens is a question which falls outside the competence of the I.L.O.
3. 235. The Government states that, in fact, only 21 of the 156 persons charged are trade unionists. It was only in respect of these 21 persons that information was requested from the Government. The Committee recognises that matters concerning persons who are not trade unionists are outside its competence, but measures which involve the freedom of association of trade unionists cannot be regarded as outside its competence simply because they are applicable to other persons as well as to trade unionists.
4. 236. The Government also contends that only nine of the 21 trade unionists in question are affiliated to the complaining organisation. While a complaint relating to persons who are not affiliated to a complaining organisation may sometimes carry less weight than a complaint relating to persons who do belong to the organisation, on the ground that the complaining organisation may have less satisfactory opportunities of being fully and reliably informed in regard to matters affecting non-members, the mere fact that some of the persons in respect of whom a complaint is made are not members of the organisation which makes it, does not render the complaint irreceivable. An essential feature of the procedure is that it is not in the nature of a legal proceeding between parties which must establish their interest in the matter but is a means of assembling information enabling the Governing Body to decide as to what action may be appropriate.
5. 237. The Committee recognises fully that a charge of high treason as such falls, as the Government contends, clearly outside the competence of the I.L.O, but considers that the question whether the formulation of such a charge on the basis of facts and allegations involving the exercise of trade union rights is to be regarded as a matter relating to high treason or a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned, in such a manner as to prevent the Governing Body from inquiring further into it.
6. 238. In the past, therefore, where allegations that trade union leaders or workers have been arrested for trade union activities or that their arrests or detention have unreasonably restricted the exercise of trade union rights have been met by governments with statements that the arrests were made for subversive activities, for reasons of national security or for common law crimes, the Committee has followed the rule that the governments concerned should be requested to furnish further and as precise information as possible concerning the arrests, particularly in connection with the legal or judicial proceedings instituted as a result thereof and the result of such proceedings. If in certain cases the Committee has concluded that allegations relating to the arrest or trial of trade unionists did not call for further examination, this has been after it has received information from the governments-in certain cases the information furnished by the texts of the relevant judgments-showing sufficiently precisely and with sufficient detail that the arrests were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature. In these cases, the governments concerned have co-operated with the Committee by furnishing it with the information necessary to enable it to formulate conclusions to the Governing Body, although in many cases it has been the view of the governments concerned that the arrests and trials were occasioned by activities of such a subversive or treasonable character as to be totally unconnected with trade union activities.

The Committee's recommendations

1. 239. In these circumstances the Committee rejects the contentions of the South African Government and recommends the Governing Body:
   • (a) to note with regret the intimation by the Government of the Union of South Africa that it is not prepared to meet the request made by the Governing Body, when it adopted the 26th Report of the Committee, that the Government be good enough to inform the Governing Body in due course as to the outcome of the legal proceedings pending in the South African courts and to furnish copies of the judgments given in the case of those of the accused who are stated in the complaint to be trade union officials or members;
   • (b) to reaffirm the importance which it has always attached to the principle of a prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions, and to the principle that the guarantees of due process which should attend such a trial should include safeguards against the retroactive application of any penal law.