Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee notes from the 2006 report by the International Organization for Migration (IOM) on the trafficking of women in East and South Africa, that South Africa is a source, transit and destination country for men, women and children, noting in particular the phenomenon of Thai women being trafficked to South Africa for the purpose of sexual exploitation. The Committee also notes from the IOM’s report that a Bill to address trafficking in persons was prepared in 2008 by the South African Law Commission on Trafficking in Persons. Referring also to its comments addressed to the Government under the Worst Forms of Child Labour Convention, 1999 (No. 182), likewise ratified by South Africa, the Committee has noted the adoption of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007, which contains transitional provisions relating to trafficking in persons for sexual purposes (sections 70 and 71).

The Committee hopes that comprehensive legislation on trafficking in persons will be adopted in the near future and that the Government will communicate a copy to the Office. The Committee also asks the Government  to provide information on measures taken or envisaged to prevent, suppress and punish human trafficking, including, in particular, information on measures taken to encourage victims of trafficking to bring complaints to the competent authorities, on the judicial proceedings which have been instituted under Sections 70 and 71 referred to above and on the penalties imposed on perpetrators.

Articles 1(1) and 2(1). Freedom of career military personnel to terminate their service. The Committee notes the information provided by the Government in its report regarding Section 59 of the Defence Act (Act 42 of 2002), which allows members of the South African National Defence Force (SANDF) to terminate their service by means of a voluntary resignation, subject to a notice period of three months, or of a shorter period as the Chief of the SANDF may determine and allows contracted members to leave the service upon the termination of their contract. The Committee asks the Government to provide, with its next report, copies of the above provisions of the Defence Act.

Article 2(2)(c). 1. Work of prisoners for private enterprises. The Committee notes that under Chapter V of Service Order 5 of the Department of Correctional Services, communicated by the Government in its report, “prisoners who are required for the performance of skilled labour may only be provided to employers with the prior written authorization of the Commissioner” (Item I(xv)). The Committee previously recalled that, under Article 2(2)(c) of the Convention, prisoners must not be hired to or placed at the disposal of private individuals, companies, or associations. However, as explained in paragraphs 59–60 and
114–122 of the 2007 General Survey on the eradication of forced labour, work performed under conditions approximating a free labour relationship can be held compatible with the explicit prohibition in the Convention. This necessarily requires the free and informed consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages, social security and occupational safety and health.

The Committee therefore asks the Government to indicate provisions requiring voluntary consent of the prisoners concerned to work for private enterprises. The Committee also asks the Government to clarify, in its next report, the issue of the wage determination arrangements referred to in Item I of Service Order 5, mentioned above. Please also supply copies of any agreements concluded between the prisons and the private enterprises to which the prisoners are “hired out”, setting forth the terms and conditions of work.

2. Community service performed for non-public entities. The Committee takes note of the provisions of the Correctional Services Act No. 111 of 1998, concerning community service. The Committee notes, in particular, that community service is defined as a legal instruction requiring an offender to perform a specified amount of uncompensated work at a community service institution or public institution. These services must be rendered in compliance with a court order or under conditions set by the correctional supervision and parole board; offenders are assigned to perform these services on the basis of their talents, skills or documented community needs. The Committee notes that community services can be performed for, inter alia, charity organizations and welfare institutions.

The Committee asks the Government to indicate, in its next report, whether offenders assigned to work in charitable bodies and welfare institutions formally consent to doing such community work. Please also indicate what measures are taken to ensure that the work done is really in the general interest, and provide a list of authorized organizations and institutions, indicating the type of work performed.

Article 2(2)(e). Minor communal services. In its earlier comments, the Committee asked for information on the nature of works performed by traditional communities, in accordance with customs, customary law and applicable legislation, and on any guarantees provided to ensure that the members of traditional communities have the right to be consulted with regard to the need for such works. The Committee takes due note of the Government’s indication that the Department of Correctional Services does not have a mandate to deal with minor communal services performed by traditional communities. However, the Committee previously noted the Government’s White Paper on Traditional Leadership and Governance, issued in July 2003 by the Minister of Provincial and Local Government, indicating that it would introduce legislation to regulate the accountability of traditional leadership and authorities. Referring to paragraph 65 of the 2007 General Survey on the eradication of forced labour, the Committee draws the Government’s attention to the criteria under which compulsory communal services is not deemed to be “forced labour.” These criteria are: (1) the work is “minor,” i.e. related primarily to maintenance work and, in exceptional cases, to the erection of certain buildings intended to improve the social conditions of the population of the community; (2) the work is “communal,” i.e. performed in the direct interests of the community and does not relate to work intended to benefit a wider group; and (3) the members of the community or their direct representative (e.g. the village council) must have the right to be consulted in regard to the need for such services.

The Committee reiterates its request that the Government provide information on the nature of the works performed by these traditional communities, as regulated by the Minister of Provincial and Local Government under the White Paper on Traditional Leadership and Governance, and on the guarantees provided to ensure that the members of traditional communities have the right to be consulted with regard to the need for such works. The Committee further requests that the Government provide information on the anticipated legislation aimed at regulating the accountability of traditional leadership and authorities, in order to ensure that any of these customs and customary laws are in compliance with the Convention.

Article 25. Penal sanctions. The Committee had previously requested information from the Government on any legal proceedings instituted as a consequence of the application in practice of section 48(2) and (3) of the Basic Conditions of Employment Act No. 75 of 1997, under which a person who, for his or her own benefit, or for the benefit of someone else, causes, demands or imposes forced labour, commits an offence, and of section 93(2) of the same Act, under which a person convicted of an offence under section 48 may be sentenced to a fine or imprisonment for a period of up to three years. The Committee notes the Government’s statement in its latest report that there are currently no such legal proceedings, as no offence in breach of this provision has been reported or taken to courts so far. The Government further reports that no jurisdiction to this effect exists. The Committee requests the Government to provide, in its future reports, information on the application in practice of the above provisions of the Act, as soon as such information becomes available, indicating, in particular, the minimum sentence of imprisonment which could be imposed by the courts under these provisions.