Informe provisional - Informe núm. 67, 1963

Caso núm. 288 (Sudáfrica) - Fecha de presentación de la queja:: 20-MAR-62 - Cerrado

1. 118. The complaint of the South African Congress of Trade Unions (S.A.C.T.U.) is contained in a communication dated 20 March 1962. The Government furnished its observations on the complaint in a communication dated 3 October 1962.
2. 119. The Republic of South Africa has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to Measures Taken against the National President of the S.A.C.T.U.
  120. 120 It is alleged that Mr. Leon Levy, National President of the S.A.C.T.U, has been prohibited for five years from attending all gatherings and from leaving the municipal area of Johannesburg, with certain exceptions.
  121. 121 In a communication dated 3 October 1962 the Government states that the ban was not imposed with a view to interfering with trade union rights; the measure was taken pursuant to the Suppression of Communism Act, 1950, and in the circumstances the Government cannot furnish any further information.
  122. 122 This case is another instance of a trade union leader having been banned from public and trade union life by operation of the Suppression of Communism Act, 1950, the essential elements of which are not distinguishable from those present in the other cases in which the Committee has examined similar allegations relating to measures taken against other South African trade union leaders.
  123. 123 In Case No. 63 relating to the then Union of South Africa the Committee, in paragraphs 268 to 276 of its 12th Report, formulated certain conclusions and made recommendations to the Governing Body concerning similar allegations, presented in far greater detail, relating to the effect of the Suppression of Communism Act on the exercise of trade union rights. When similar allegations relating to further persons came before it in Case No. 102, the Committee recommended the Governing Body, in paragraph 185 (1) of its 15th Report, " to reaffirm the conclusions regarding the Suppression of Communism Act, 1950, as amended in 1951, set forth in paragraphs 268 to 276 of its 12th Report ".
  124. 124 In Case No. 63 referred to in the preceding paragraph, the Committee first of all recalled the principles formulated in paragraph 29 of its First Report with respect to the examination of complaints to which the Government concerned ascribed a further political character, and the fact that it had decided that, even though cases may be political in origin or present political aspects, they should nevertheless be examined from the point of view of substance if they raise questions directly affecting the exercise of trade union rights. The Committee then observed that it had followed the above rules in certain earlier cases, including Case No. 10 relating to Chile and Case No. 5 relating to India.
  125. 125 In the said case relating to Chile the Committee had expressed the view that a provision in the law of that country which permitted a person merely charged with an offence, but not convicted thereof, to be deprived of the right to belong to a trade union might appear unusual and suggested to the Government that it might wish to re-examine the said provision in the light of the principles enunciated in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In Case No. 63 the Committee again emphasised the importance which it attached to those principles and, in particular, to the principle that workers and employers, without distinction whatsoever, should have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
  126. 126 In the said case relating to India the Committee had emphasised, after examining allegations relating to measures of preventive detention, the fact that it should be the policy of every government to take care to ensure observance of the rights of man and, especially, of the right of all detained persons to receive a fair trial at the earliest possible moment. The Committee reaffirmed that principle in Case No. 63 relating to the then Union of South Africa.
  127. 127 Accordingly, in Case No. 63, the Committee submitted to the Governing Body the conclusions contained in paragraph 276 of its 12th Report which reads as follows:
  276. 276 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 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.
• As observed in paragraph 123 above, the Committee reaffirmed these conclusions in Case No. 103 relating to the then Union of South Africa.
  128. 128 The allegations now made with respect to the case of the National President of the South African Congress of Trade Unions add no new elements to the allegations made in Cases Nos. 63 and 102, beyond the addition of the name of a further individual to the list of those already alleged to have been removed from trade union life under the Suppression of Communism Act, and involve the same questions of principle as those with respect to which the Committee submitted recommendations to the Governing Body in its 12th Report.
  129. 129 In these circumstances the Committee recommends the Governing Body to reaffirm the conclusions regarding the Suppression of Communism Act, 1950, as amended in 1951, set forth in paragraphs 268 to 276 of its 12th Report.
• Allegations relating to the Breaking up of a Workers' Meeting
  130. 130 It is alleged that on 11 March 1962 the police broke up a workers' meeting at Kliptown, Johannesburg, on the pretext that no permission had been obtained by the S.A.C.T.U, which organised the meeting, to hold a meeting " on that site ". Five people were arrested.
  131. 131 The Government declares that the police action in question was necessitated by the fact that the organisers of the meeting had not obtained the prior approval of the authorities for holding it. Six persons were arrested on charges of disturbing the peace or obstructing the police.
  132. 132 In many cases in the past the Committee has emphasised the importance which it has always attached to the fact that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential element of trade union rights, and to the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
  133. 133 It is not clear whether the meeting in question was a public meeting sponsored by a trade union or whether it was a private meeting in particular premises or on a site not open to the public at large.
  134. 134 The Committee, therefore, requests the Government to furnish information as to the public or private nature of the meeting in question and as to the premises in which or on which it was held and information as to the legal provisions or regulations under which prior permission for the holding of the meeting was required.

The Committee's recommendations

1. 135. In these circumstances the Committee recommends the Governing Body:
   • (a) to decide, with regard to the allegations relating to measures taken against the National President of the South African Congress of Trade Unions, to reaffirm the conclusions regarding the Suppression of Communism Act, 1950, as amended in 1951, set forth in paragraphs 268 to 276 of the Committee's 12th Report, and, especially, to the importance which the Governing Body attaches to the principle that workers, without distinction whatsoever, should have the right to join organisations of their own choosing, and to the importance of due process in cases in which measures of a political character may indirectly affect the exercise of trade union rights, both of which principles were affirmed by the Governing Body when it adopted paragraph 276 of the 12th Report of the Committee cited in paragraph 131 above;
   • (b) to take note of the present interim report of the Committee with regard to the allegations relating to the breaking up of a workers' meeting, it being understood that the Committee will report further thereon to the Governing Body when it has received the further information which it has decided to request from the Government.