Definitive Report - Report No 91, 1966

Case No 472 (South Africa) - Complaint date: 03-MAR-66 - Closed

1. 4. On 3 March 1966 the World Federation of Trade Unions submitted a complaint of alleged infringements of trade union rights in the Republic of South Africa, which was received by the International Labour Office on 14 March 1966.

A. A. The complainants' allegations

1. 5. The complainants allege that, in 1961, 193 African workers employed by the Bay Transport Company went on strike in support of their occupational demands, after negotiations had broken down. As strikes by African workers are prohibited under the Native Labour (Settlement of Disputes) Act, 1953, as amended-a fact which the complainants condemn as a measure of racial discrimination-they were arrested and then fined £7 10s each. Subsequently negotiations were resumed, and a settlement was eventually reached. In 1965, it is alleged, ten of these workers (Messrs. Eric Zuma, Llewellyn Yava, Daniel Magongo, Milton Baleni, Alfred Qungani, Matthew Mpolongwana, Amoz Zembetha, Richard Klaas, Arnold Nhantana, and Welcome Duru) were arrested on charges of having furthered the aims of the banned African National Congress-a political organisation declared unlawful under the Suppression of Communism Act-and sentenced to four-and-a-half years' imprisonment, all except the last named having previously been illegally detained for more than one year.
2. 6. It is also alleged that three officers of trade unions belonging to the South African Congress of Trade Unions, Messrs. Zolly Malindi, Bernard Runa and Elyah Loza, have been held in solitary confinement since December 1965 without having been charged or brought to trial.
3. 7. The particular incident of the imposition of fines on 193 African workers has previously been considered by the Committee when it had before it a complaint submitted by the South African Congress of Trade Unions. At its meeting in November 1965 the Committee recalled that it had always applied the principle that allegations respecting the right to strike are not outside its competence in so far as they affect the exercise of trade union rights and pointed out, as it already had done on numerous occasions, that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. The case of the 193 workers was one more example of the application of the legal provisions prohibiting strikes by African workers which had already been considered by the Committee in Case No. 102 relating to the Union of South Africa. The Committee had then observed that, while temporary restrictions were placed on the right to strike of employees covered by the Industrial Conciliation Act and a complete prohibition was placed on strikes by such employees engaged in certain essential services, section 18 (1) of the Native Labour (Settlement of Disputes) Act placed a total prohibition on strikes by African workers, irrespective of the nature of their occupation. It had expressed the view that, where the right to strike is accorded to workers and their organisations, there should be no racial discrimination with respect to those to whom it is accorded, and had recommended the Governing Body to note that in South Africa the existence of racial discrimination in respect of trade union rights is further confirmed by the fact that the nature and extent of the limitations placed on the right to strike differ widely as between employees covered by the Industrial Conciliation Act and African workers. After examining the allegations relating to the case of the 193 workers who were fined for striking, the Committee reaffirmed this recommendation in paragraph 166 (f) (iii) of its 85th Report. This recommendation was affirmed by the Governing Body at its 163rd Session (November 1965) and was communicated to the Government of the Republic of South Africa by a letter dated 26 November 1965.
4. 8. It appears from the complaint that ten of the strikers referred to above were, in 1965, sentenced for an offence against the Suppression of Communism Act. It is not clear from the complaint whether the fact of their having been on strike in 1961 was the basis for their conviction in 1965 of furthering the aims of a political organisation declared unlawful pursuant to the Act. On the more general question of the consequences of the Suppression of Communism Act on the exercise of trade union rights considered by the Committee in Case No. 63 relating to the then Union of South Africa, the Committee concluded:
   • In so far as the South African Act of 1950 was enacted, as the Government contends, purely for a political reason, namely that of barring Communists in general, as citizens, from all public life, the Committee considers that the matter is one of internal national policy with which it is not competent to deal and on which it should therefore refrain from expressing any view. However, in view of the fact that measures of a political nature may have an indirect effect on the exercise of trade union rights, the Committee wishes to draw the attention of the South African Government to the views which it has expressed in the above cases [in Case No. 5 (India), Fourth Report, paras. 18-51, and Case No. 10 (Chile), Fourth Report, paras. 52-88] with regard, first, to the principle that workers, without distinction whatsoever, should have the right to join organisations of their own choosing and, secondly, to the importance of due process in cases in which measures of a political nature may indirectly affect the exercise of trade union rights. Consequently the Committee recommends the Governing Body to communicate the above conclusions to the Government of the Union of South Africa.
   • This recommendation was approved by the Governing Body at its 124th Session (March 1954) and the above conclusions were communicated to the Government of the then Union of South Africa by a letter dated 20 March 1954.
5. 9. In the present case it is also alleged that, before their conviction, nine of the ten workers named had been held in preventive detention for over one year and that three officers of the South African Congress of Trade Unions have been detained since December 1965 without having been charged or brought to trial. The question of preventive detention is one which the Committee has been called upon to examine in a considerable number of cases, including some relating to the Republic of South Africa. In all these cases the Committee has consistently pointed out that in all cases in which trade unionists are preventively detained these measures may involve a serious interference with the exercise of trade union rights and has emphasised the right of all detained persons to receive a fair trial at the earliest possible moment. In Cases Nos. 300, 311 and 321 relating to the Republic of South Africa the Committee recommended the Governing Body, in paragraph 166 (b) (iii) of its 85th Report, to bring these principles to the notice of the Government of the Republic of South Africa. This recommendation was approved by the Governing Body at its 163rd Session (November 1965) and was communicated to the Government by a letter dated 26 November 1965.
6. 10. The questions of principle raised by the complaint now before the Committee have thus been the subject of recommendations by the Governing Body in earlier cases, but in the present case a new question concerning the jurisdiction and competence of organs of the International Labour Organisation to deal with the matter arises.

B. B. The Committee's conclusions

1. 11. The present complaint was received by the I.L.O on 14 March 1966. On 11 March 1966 the period of notice given by the Republic of South Africa of its intention to withdraw from the International Labour Organisation expired. The Republic of South Africa remained a Member of the United Nations.
2. 12. According to the procedure for the examination of complaints of alleged infringements of trade union rights agreed upon between the United Nations and the International Labour Organisation, as set forth in the letter of 19 January 1950 from the Director-General of the I.L.O to the Secretary-General of the United Nations stating the proposed terms of reference of the Fact-Finding and Conciliation Commission, which were subsequently approved by the Economic and Social Council when it adopted resolution 277 (X) concerning trade union rights (freedom of association) on 17 February 1950 in the course of its Tenth Session, before the Governing Body of the I.L.O refers to the Fact-Finding and Conciliation Commission on Freedom of Association an allegation which it has received against a Member of the United Nations which is not a Member of the I.L.O, such allegation should be referred to the Economic and Social Council for its consideration. In resolution 277 (X) approving the arrangements, adopted on 17 February 1950 by the Economic and Social Council, the I.L.O was invited to refer, in the first instance, to the Economic and Social Council any allegations regarding infringements of trade union rights against a Member of the United Nations which is not a Member of the I.L.O. If the Governing Body has before it such allegations regarding infringements of trade union rights, it will, before referring them to the Commission, refer them to the Economic and Social Council for consideration. The procedure provides that the Secretary-General of the United Nations will seek the consent of the Government concerned before any consideration of the allegation by the Economic and Social Council; if such consent is not forthcoming, the Economic and Social Council will give consideration to such refusal with a view to taking any appropriate alternative action designed to safeguard the rights relating to freedom of association involved in the case.

The Committee's recommendations

1. 13. In these circumstances the Committee recommends the Governing Body:
   • (a) to refer to the Economic and Social Council for consideration, in accordance with resolution 277 (X) of 17 February 1950, the allegations which have been received from the World Federation of Trade Unions against the Government of the Republic of South Africa, which is no longer a Member of the I.L.O, to the effect that 193 African workers were fined for striking in contravention of the provisions of the Native Labour (Settlement of Disputes) Act, 1953, as amended, which prohibits all strikes by African workers; that over four years later ten of those workers were sentenced to four-and-a-half years' imprisonment for an offence punishable under the Suppression of Communism Act, 1950, as amended; that prior to such conviction nine of the ten persons concerned had been held in preventive detention for more than one year; and that three officers of the South African Congress of Trade Unions have been detained since December 1965 without having been charged or brought to trial;
   • (b) to inform the Economic and Social Council that in examining allegations of this kind in earlier cases relating to the Republic of South Africa, which arose while South Africa was a Member of the I.L.O, the Governing Body has communicated to the Government of South Africa the following findings and recommendations:
   • (i) where the right to strike is accorded to workers and their organisations, there should be no racial discrimination with respect to those to whom it is accorded; the nature and extent of the limitations placed on the right to strike differ widely as between employees covered by the Industrial Conciliation Act, 1956, and African workers;
   • (ii) workers without distinction whatsoever should have the right to join organisations of their own choosing and full due process should be observed in cases in which measures of a political nature may indirectly affect the exercise of trade union rights;
   • (iii) the preventive detention of trade union leaders may involve a serious interference with the exercise of trade union rights; all detained persons should receive a fair trial at the earliest possible moment;
   • (c) to note that, in accordance with Economic and Social Council resolution No. 277 (X) of 17 February 1950, it is for the Economic and Social Council to decide what further action it proposes to take in the matter by seeking the consent of the Government of the Republic of South Africa to the case being referred to the Fact-Finding and Conciliation Commission on Freedom of Association or in any other manner.
     • Geneva, 25 May 1966. (Signed) Roberto AGO, Chairman.