Observación (CEACR) - Adopción: 2024, Publicación: 113ª reunión CIT (2025)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Sudáfrica (Ratificación : 1997)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. Institutional framework. Following its previous comments, the Committee notes the Government’s information in its report that the Prevention and Combating of Trafficking in Persons National Policy Framework (NPF), 2019, contains a detailed three-year interdepartmental strategic plan on the implementation and coordination of activities to combat trafficking in persons, which was revised and updated in November 2022. The NPF is implemented by a multi-disciplinary and cross-sectoral approach through different national coordinating structures including the National Coordinator Secretariat, the National Inter-sectoral Committee on Trafficking in Persons (NICTIP), Provincial Task Teams (PTTs) and Rapid Response Teams (RRTs), which also includes accredited non-governmental organizations and other civil society organizations including traditional leaders, academia, international organizations, and competent state and local stakeholders. The Government states that these structures which support, protect and promote the rights of victims of trafficking constitute South Africa’s National Coordination Mechanism, through which the legal and practical obligations under the Prevention and Combating of Trafficking in Persons Act (PCTP Act), the NPF, and international and regional treaties are met. The Committee also notes the Government’s information on the various international partnerships concluded by the Government to combat trafficking in persons, including: (i) cooperation of the Southern African Regional Police Chiefs; (ii) collaboration between the prosecutors of South Africa and prosecutors of Botswana, Eswatini and Mozambique; (iii) a binational commission with Zimbabwe, Botswana, Mozambique and Zambia; and (iv) signing of the Memorandum of Understanding (MoU) with Mozambique, Botswana and Zambia. In addition, a draft MoU with the Government of Thailand is under preparation.

The Government also indicates that awareness-raising and education to reduce the incidence of trafficking in persons is being coordinated by all stakeholders. Moreover, the recommendations following the findings of the research on the scope and nature of trafficking in persons in South Africa conducted by the United States Agency for International Development is being implemented by the NICTIP. The Committee requests the Government to provide detailed information on the activities undertaken by the National Coordination Mechanism, including the NICTIP, the provincial trafficking in persons task teams and provincial rapid response teams, for the effective implementation of the NPF, and to provide information on the results achieved in preventing and combating trafficking in persons.

Identification and protection of victims. The Committee notes the Government’s information that National Instruction No. 4/2015 and the National Standard Operating Procedure (SOP) developed by the South African police service contain guidelines on the identification of victims of trafficking and outline the assistance to be provided to them. Accordingly, the National Instruction and the SOP provide for the immediate removal of victims from the trauma or exploitation, medical assistance, protection, gathering of evidence, assessment of the quantum of damages, as well as reintegration and repatriation of the victims. The Committee also notes the Government’s information that the Department of Social Development issued Regulations pursuant to section 43(3) of the PCTP Act, which regulates and guides the management and assessment of victims of trafficking. Moreover, Directives on proactively identifying, interviewing and assessing victims of trafficking and their referral to social, medical and psychological services, as well as the Safety Risk Assessment Tool to identify child victims of trafficking, were also developed in 2022–23. The Department of Social development issued copies of the Directives for distribution to provinces, with a view to enhancing the training of social workers, non-governmental organizations, as well as other relevant stakeholders.

The Committee further notes the Government’s information that victims of trafficking are initially referred to the Accredited One Stop Centres and after the referral processes, they are placed at the facility by the South African police or a social worker as per the National Instruction 4 of 2015. According to the statistical information provided by the Government, a total of 77 victims of trafficking, including 39 females were identified and rescued by the Government, while 52 victims of trafficking, including 42 females, were identified and rescued by non-governmental organizations. The Government also indicates that a total of 246 victims and suspected victims of trafficking received services with Government support. The Committee also notes the Government’s information that regulations under section 43(2) of the PCTP Act concerning the recovery and reflection period for foreign victims of trafficking and their repatriation in their country of origin, have been finalized. The Committee requests the Government to continue to take measures to ensure the early identification of victims of trafficking and to provide them with appropriate protection and assistance for their recovery and rehabilitation. It requests the Government to continue to provide information on the measures taken in this regard as well as on the number of victims of trafficking who have benefited from the assistance and protection services, indicating the specific services provided. It also requests the Government to provide a copy of the regulations adopted under section 43(2) of the PCTP Act.

Prosecution and application of penalties. The Committee notes from South Africa’s response to the 2022 Trafficking in Persons Report that the interpretation of section 13(a) of the PCTP Act concerning the penalties is that a person who is convicted of the offence of trafficking in persons must be sentenced to life imprisonment, unless there are substantial and compelling circumstances which justify a lesser sentence, which could include the imposition of a fine, although very unlikely. In this regard, the Committee notes that according to the information provided by the Government, in 2023, convictions were made in seven cases of trafficking for sexual purposes, involving 13 accused who were sentenced to imprisonment ranging from 15 to 18 years and life imprisonment; and in one case of trafficking of two children for forced labour, one accused was sentenced to 15 years’ imprisonment. The Committee requests the Government to continue taking the necessary measures to ensure that perpetrators of trafficking in persons are prosecuted and that effective and dissuasive penalties are imposed. It requests the Government to continue to provide information on the number of investigations and prosecutions carried out, as well as the convictions and types of penalties imposed. It also requests the Government to provide information on the measures taken to strengthen the capacity of the law enforcement officials in this regard.

Article 2(2)(c). Work of prisoners for private enterprises. In its previous comments, the Committee noted that, pursuant to sections 37(1)(b), 40(1) and 40(2) of the Correctional Services Act of 1998, a sentenced offender is obliged to perform labour. In addition, by virtue of section 23(2)(a) of the Correctional Service Regulations, private entities are allowed to hire convicted persons to perform labour against a prescribed tariff. The Committee noted that offenders who perform labour were paid a gratuity, and that the recruiters of prison labour were responsible for performing the duties of correctional officers in terms of safety, security and care. The Committee observed that the described working conditions of prisoners for private enterprises did not appear to approximate a free labour relationship in terms of wages or measures related to occupational safety and health. In this regard, it observed that the Strategic Plan for 2015/2016–2019/2020 of the Department of Correctional Services referred to public–private partnerships that were concluded in 2000 for the design, construction, financing and operation of the Mangaung and Kutuma-Sinthumule correctional centres, for a duration of 25 years. The Committee requested the Government to take the necessary measures to ensure that convicted persons who perform work for private entities undertake it voluntarily, with their formal, freely given and informed consent, and with working conditions approximating those of a free labour relationship.

Noting that this issue has been raised since 2010, the Committee once again notes with regret the absence of information in the Government’s report on this point. The Committee therefore recalls once again that, by virtue of Article 2(2)(c) of the Convention, the compulsory labour of convicted persons is not considered forced labour when: (1) it is carried out under the supervision and control of a public authority; and (2) prisoners are not hired to or placed at the disposal of private individuals, companies or associations. If either of the two conditions is not observed, the situation would fall within the scope of the Convention and compulsory labour exacted from convicted persons under these circumstances is prohibited in virtue of Article 1(1) of the Convention. However, the Committee has considered that work by prisoners for private enterprises could be held to be compatible with the Convention when: (i) the prisoners concerned offer themselves voluntarily, by giving their free, formal (in writing) and informed consent to work for private enterprises; and (ii) when the conditions of work of prisoners approximate those of a free labour relationship (2012 General Survey on the fundamental Conventions, paragraphs 278 and 279). Therefore, the Committee urges the Government to take the necessary measures without delay to ensure that in both law and practice, the work undertaken by prisoners for private enterprises, only takes place voluntarily on the basis of the free, formal and informed consent of the prisoners concerned, and under conditions approximating a free labour relationship. The Committee requests the Government to provide information on the progress made in this regard, and on the number of prisoners working for the benefit of private enterprises and the manner in which their free, formal and informed consent is given.