Definitive Report - Report No 72, 1964

Case No 278 (South Africa) - Complaint date: 29-DEC-61 - Closed

1. 39. The complaint of the South African Congress of Trade Unions is contained in a communication dated 29 December 1961. The Government furnished its observations in a letter dated 21 May 1962.
2. 40. 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

1. 41. It is alleged that on 6 December 1961 South African security police searched the office of the South African Railways and Harbours Non-European Workers' Union and confiscated membership cards issued to individual members, those individuals being told later by the railway police that if they adhered to the union they would be dismissed from the service of the railways. The complainant declares that some workers have been transferred, contrary to law, to other jobs at wages lower than they were receiving.
2. 42. At its meeting in October 1962 the Committee observed that there were two essential points in the complaint: one relating to the right of association of non-European police constables and the other relating to the alleged search by the police of the premises of the trade union to which certain constables, together with other classes of non-European employees, belonged.
3. 43. With regard to the former question and to the accepted transfers of some constables, the Committee, for the reasons indicated in paragraphs 113 and 114 of its 67th Report, reached the conclusion that it was not necessary to pursue the matter further. The 67th Report of the Committee was approved by the Governing Body at its 154th Session (March 1963).
4. 44. With regard to that part of the complaint which relates to an alleged search of trade union premises (see paragraph 41 above), the Committee observed that the Government had made no comments on this matter in its communication dated 21 May 1962.
5. 45. The Committee pointed out, in paragraph 116 of its 67th Report, that it had in a previous case, while recognising that trade unions, like other associations or persons, cannot claim immunity from search for their premises, emphasised the importance which it attaches to the principle that such a search should only be made following the issue of a warrant by the ordinary judicial authority after that authority has been satisfied that reasonable grounds exist for supposing that evidence exists on the said premises material to a prosecution for an offence under the ordinary law and provided that such search is restricted to the purposes in respect of which the warrant was issued.
6. 46. In these circumstances, the Committee, while thanking the Government for the observations which it had already furnished, recommended the Governing Body to request the Government, having regard to the principle enumerated in paragraph 45 above, to be good enough to furnish its observations with regard to the allegation that the police searched the premises of the South African Railways and Harbours Non-European Workers' Union.
7. 47. The request was conveyed to the Government by a letter dated 13 March 1963. The Government furnished its observations in a letter dated 27 May 1963.
8. 48. The present report is confined to this outstanding allegation.
9. 49. In its communication dated 27 May 1963, the Government states that a search warrant authorising the seizure of documents having a bearing on the action of police constables of the South African Railways and Harbours Administration in joining an unauthorised political organisation, in contravention of Railway Regulation No. 165 (32) promulgated under section 32 of Act No. 22 of 1960, was duly obtained by the South African Police, in accordance with normal practice, from a judicial authority, and that the search was conducted in accordance therewith.
10. 50. When the Committee concluded at its meeting in October 1962 that there was no ground for pursuing further the examination of the allegation that railway police constables were denied the right to organise, it did so having regard to the consideration that the fact that there exists no generally accepted principle according the free exercise of the right of association to members of the police was recognised by the International Labour Conference when it adopted Article 9 (1) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In other words, the Committee recognised the right of the Government, in the present instance, to provide by law that the joining of the trade union by police constables employed by the South African Railways and Harbours Administration constitutes an unlawful act.
11. 51. The Government maintains that a search warrant was duly obtained from a judicial authority permitting the seizure of documents on the premises of the trade union having regard to the fact that certain police constables did join the union contrary to law-a fact which does not appear to be disputed-and that the search was conducted in accordance with the warrant.

B. B. The Committee's conclusions

1. 52. From the general statements in the complaint nothing emerges which would appear to contradict what is, in effect, the argument of the Government-that the warrant was obtained from the ordinary judicial authority and that the search was conducted in accordance therewith, so that the principle enunciated by the Committee as set forth in paragraph 45 above was duly observed.
2. 53. The Committee considers, therefore, that the complainants have not furnished sufficient proof to show that in this particular instance the search of the premises of the South African Railways and Harbours Non-European Workers' Union, on 6 December 1961, constituted an infringement of trade union rights.

The Committee's recommendations

1. 54. In these circumstances, the Committee recommends the Governing Body to decide that the case as a whole does not call for further examination.