Rapport intérimaire - Rapport No. 49, 1961

Cas no 229 (Afrique du Sud) - Date de la plainte: 15-AVR. -60 - Clos

1. 81. The complaint of the W.F.T.U is contained in a communication addressed to the Director-General of the I.L.O on 15 April 1960. After recalling the resolutions adopted by the General Assembly of the United Nations and the Security Council in respect of racial policy in South Africa, the complainants declare that on 30 March 1960 more than 100 members of the " freedom movement " in South Africa and trade union leaders and militants were arrested pursuant to the Public Security Act, 1953, including Leon Levy and Leslie Massena, respectively National President and General Secretary of the South African Congress of Trade Unions.

A. A. The complainants' allegations

1. 82. Other trade union leaders and militants who have been imprisoned, the complainants allege, include the leaders of the Federation of Garment Workers (Johannesburg), the Railwaymen's Union (Durban), the Federation of Food Industry Workers (Cape of Good Hope), the Textile Workers' Union (Durban) and the Textile Workers' Federation (Johannesburg); the list includes eight African, one Indian and three white members of the South African Congress of Trade Unions.
2. 83. The complainants state that, under the Public Security Act, 1953, the Governor-General is empowered to proclaim a state of emergency, to suspend parliamentary activities and to govern by decrees. A state of emergency was proclaimed on 30 March 1960. During a state of emergency, persons who are arrested can be held in prison for 30 days without their names being made public; neither their lawyers nor their families are permitted to visit them.
3. 84. According to the complainants, the persons concerned were arrested because of their participation in the struggle against racial discrimination and to safeguard trade union and democratic rights. The arrests followed, especially, " the successful nation-wide stoppage of work " on 28 March 1960 in protest against " the Sharpeville massacre "-a strike in which state the complainants, 95 per cent of the whole population took part. In the words of the complainants, " the African National Congress designated 28 March 1960 a day of mourning in memory of the victims of the Sharpeville massacre on 21 March 1960 ". The complainants declare that the police and army had all means to force workers to resume work and entered the homes of Africans in Nyanga; 1,500 persons were arrested and nearly 200 held in custody. During a state of emergency it is forbidden to persuade workers to take part in a strike; despite this, at the date on which the complaint was presented, the strike had continued for a fortnight. These events, conclude the complainants, constituted a serious violation of the right to strike.
4. 85. When the complaint was forwarded to the Government on 5 May 1960, for its observations, the Director-General indicated to the Government that, as matters involving human life or personal freedom were raised in the complaint, the case fell within the category of cases regarded by the Governing Body as urgent, in which, in accordance with the decision of the Governing Body at its 140th Session (November 1958), the Government concerned is to be specially requested, on behalf of the Governing Body, to furnish a particularly speedy reply.
5. 86. The Government forwarded its observations in a letter dated 25 June 1960.
6. 87. After referring to its earlier fundamental objection to the functioning of the Committee on Freedom of Association, the Government comments on the substance of the allegations. In doing so, however, it observes that the allegations relate entirely to measures taken to put an end to disturbances of a political nature inspired by subversive elements and that the matter is wholly political and, therefore, outside the scope of the functions of the International Labour Organisation. Accordingly, declares the Government, it does " not feel constrained to reply to the allegations at any great length ".
7. 88. The Government says that it wishes to state unequivocally that the measures adopted were not aimed at any trade union or trade unionist and that not a single trade union organisation has been singled out for special attention under the state of emergency which it was deemed necessary to proclaim in order to maintain peace and order. The mere fact that a person is a trade unionist or a trade union leader, contends the Government, is no reason why he should, on that account, be exempted from the law of the land, which applies to all other citizens. The Government adds that the cases of all persons detained under the Emergency Regulations are being investigated and proceedings will be instituted as soon as investigations have been completed.
8. 89. The Government denies that the police and army were used to force workers to resume work. According to the Government, no general strike ever took place but there was large-scale intimidation of workers to attempt to stop them from going to work; because illegal and brutal means were used to this end, the police were forced to protect law-abiding workers to enable them to proceed to their places of employment.
9. 90. The Government makes its reply without prejudice to its previous objections with respect to the general competence of the Committee. In this connection the Committee reaffirms the statement it has made in earlier cases that, in view of the decision taken on this matter by the International Labour Conference at its 33rd Session in 1950, it considers that it is not called upon to examine further the question of the competence of the I.L.O to establish the procedure.
10. 91. With reference to the contention of the Government that the complaint as a whole is a political matter, the Committee has been called upon in several earlier cases to formulate conclusions on the application of measures which, even though of a political character and not intended to restrict trade union rights as such, may nevertheless affect the exercise of such rights. Following its previous practice, the Committee considers that, in so far as the persons involved by name in the present case are trade union officers and members, it is competent, while confining itself to the question as to how far the measures alleged to have been taken may have been related to or have affected the exercise of trade union rights, to examine on their merits the issues raised with respect to the exercise of the right to strike and to the arrest and detention of trade union leaders and militants.

B. B. The Committee's conclusions

1. 92. With reference to the allegations relating to the violation of the right to strike, the Committee has pointed out in a number of cases that the right to strike is generally accorded to workers and their organisations as an integral part of their right to defend their collective economic and social interests. However, it has rejected allegations relating to strikes by reason of their non-occupational character or where they have been designed to coerce a government with respect to a political matter or have been directed against the government's policy and not " in furtherance of a trade dispute ".s In the present case, it is clear, from the complainants' own words, that the strike was called in protest against " the Sharpeville massacre " on a day set aside as " a day of mourning " by the African National Congress and was participated in, according to the complainants, by 95 per cent of the whole population-including, therefore, both trade unionists and non-unionists. In these circumstances, therefore, the Committee considers that it should follow its previous practice of not entertaining allegations regarding strikes of such a nature and therefore recommends the Governing Body to decide that the allegations relating to violation of the right to strike do not call for further examination.
2. 93. There remains the issue as to the arrest and detention of a number of trade union leaders and militants whose names and/or trade union offices are specified by the complainants.
3. 94. The Committee observes that these arrests are stated to have followed " especially " the stoppage of work on 28 March 1960. It would seem, however, both from the complainant and from the Government's reply-in the latter, it is said that " no general strike took place "-that the arrests took place under a state of emergency on grounds not necessarily limited to participation in or encouragement of a strike. In the words of the Government, the measures were taken under a state of emergency deemed necessary for the maintenance of peace and order and were not directed against trade unionists (or their organisations) as distinct from citizens as a whole. The complainants state that the persons arrested were proceeded against partly because of their hostility to the Government's racial policy and partly because of their struggle to safeguard trade union rights. It is therefore not immediately clear on the evidence before the Committee how far the trade union activities of those concerned may really have been an element leading up to the arrests, although it is definitely alleged that these activities were, at least in part, a material reason.
4. 95. In a number of earlier cases the Committee has emphasised the importance which it has always attached to the principle of 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. In the past, moreover, where allegations that trade union activities have been met by governments with statements that the arrests were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has followed the rule that the governments concerned should be requested to submit 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. In the present case the Government itself states that the cases of all those detained under the Emergency Regulations are being investigated and that proceedings will be instituted as soon as the investigations have been completed.
5. 96. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it attaches to the principle of prompt and fair trial set forth in paragraph 95 above, and to request the Government to be good enough to furnish information as to the legal or judicial proceedings which the Government states are to be taken in the case of the detained trade union leaders referred to by the complainants and as to the results of such proceedings.

The Committee's recommendations

1. 97. In all the circumstances the Committee recommends the Governing Body:
   • (a) to decide that the allegations relating to violation of the right to strike in connection with the strike said to have been called on 28 March 1960 do not, for the reasons indicated in paragraph 92 above, call for further examination;
   • (b) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle of 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;
   • (c) to request the Government, having regard to the principle set forth above, to be good enough to furnish information to the Governing Body as to the legal or judicial proceedings which the Government states are to be taken in the case of the detained trade union leaders referred to by the complainants and as to the result of such proceedings.