Interim Report - Report No 68, 1963

Case No 300 (South Africa) - Complaint date: 12-MAY-62 - Closed

1. 153. The complaint of the S.A.C.T.U is contained in four communications dated respectively 12 May, 21 May, 9 June and 17 August 1962, and that of the I.C.F.T.U in two communications dated 11 September 1962 and 21 December 1962. The Government forwarded its observations on the case by a communication dated 17 January 1963.
2. 154. 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

• Preliminary Question as to the Competence of the Committee
  155. 155 In furnishing its observations the Government points out that it does so without prejudice to its consistently maintained view that, in setting up the Committee, the Governing Body and the International Labour Office exceeded their competence, a view which the Government again affirms.
  156. 156 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."
• Allegations relating to the National Budget
  157. 157 The S.A.C.T.U declares, in its communication dated 12 May 1962, that the budget for 1962-63 increased taxation for the purpose of ensuring " security against external attack as well as against internal disorder ". The complainant assumes that " internal disorder " means demonstrations, strikes, etc., organised by the people of South Africa against the policy of apartheid.
  158. 158 The Government has not commented upon this allegation in its observations, but the allegation would appear to constitute a general criticism of the Government's racial policy not specifically related in this context to the exercise of trade union rights.
  159. 159 In these circumstances the Committee recommends the Governing Body to decide that this allegation does not call for further examination.
• Allegations relating to the Prohibition of Strikes
  160. 160 In its communication dated 12 May 1962 the S.A.C.T.U refers to the penalties of fines and imprisonment prescribed by the Native Labour (Settlement of Disputes) Act, 1953, and the Criminal Laws Amendment Act in respect of strikes by African workers. Despite these restrictions there were 453 reported strikes of African workers during the period 1954-60, it is alleged, some 40,000 African workers having been prosecuted, many of them having been fined or imprisoned. The complainant goes on the refer to some more recent cases of strikes which, it is stated, were all of an economic nature.
  161. 161 In August 1961, it is alleged, 80 blind African workers at the Constance Caworth Institute for the Blind (Natal), earning only £10 per month or about one-third of the estimated living wage, went on strike for higher wages; the police were called and all the workers were dismissed, following which they were told to apply for readmission, but 13 were not re-engaged and no wage increase was granted.
  162. 162 Also in August 1961, it is alleged, 136 workers of the Lion Match Company (Durban) were each fined £5, with the alternative of ten days' imprisonment, on a charge of conducting an illegal strike, because they held a lunch-time demonstration and exhibited placards demanding union recognition and a wage of £1 a day; leave to appeal was refused.
  163. 163 The complainant states that workers employed by Klipfontein Organic Products (Transvaal) are recruited through the (government) Bantu Administration Department and live in compounds on a poverty wage of £7 per month, plus food and accommodation, their only chance to have grievances redressed being to apply to the Bantu Native Commissioner, who, it is alleged, whenever a complaint is addressed to him sees that the workers are dismissed and refused permits to seek work elsewhere. In desperation, it is alleged, they went on strike in July 1961; 600 were arrested but only two were subsequently charged and, after spending three weeks in gaol, were fined £20 each. When S.A.C.T.U made representations on behalf of these workers to the Minister of Bantu Affairs, it is alleged, they were referred to the same Commissioner against whom the workers had complained.
  164. 164 The S.A.C.T.U alleges that 193 African workers employed by the Bay Transport Company, Port Elizabeth, were each fined £7 10s. for striking.
  165. 165 As the Government has not referred to any of these allegations in its reply the Committee requests the Government to be good enough to furnish its observations thereon.
• Allegations relating to Anti-Union Propaganda Carried on by Government Departments
  166. 166 In its communication dated 12 May 1962, the S.A.C.T.U alleges that anti-union propaganda is carried on among its 99,800 African employees by the South African Railways and Harbours Administration, which is a government department.
  167. 167 The complainant furnishes a purported extract from the March 1962 issue of Umgondiso, an official publication of the Administration circulated among non-white railway workers. In the extract as furnished it is stated:
• The workers' representatives and the regional committees (appointed by the Administration) are the official medium for the purpose of making representations to the Department. They are, in fact, the only medium which are recognised by the Department.... On the other hand, there are organisations and so-called unions who influence non-European servants to join up and become a member of the organisation. The fees are high and are privately collected every month. They make it look legal by issuing a membership card and a receipt.... These so-called unions do not enjoy departmental recognition and the management of the railways or any of its officials do not, in any manner or form, on whatever subject, negotiate with these unions. They cannot assist you in any of your service conditions; yes, they are only out to collect your money. They are living off the fat of the land, and that with your hard-earned money which you contribute to them monthly. As a matter of fact, activities related to these unions, of whatever nature they may be, are not permitted on railway premises.
• After referring to these organisations as " illegal so-called unions ", the extract states:
• To protect you from these unscrupulous people, the Administration has given strict instructions that no non-European servant may act as a collector for societies, firms, unions, associations or any other organisation or cause, without the written permission of the Head of Department. Nor is any person allowed to enter railway premises to collect any money from railway servants whether it be during working hours or not. Let this be a warning to you and do not allow others to mislead you.
• In the view of the complainants, these statements defame officials of the South African Railways and Harbour Workers' Union (of African railway workers), state wrongly that the union is illegal and confirm the implacable opposition of the Government to free trade union organisation.
  168. 168 As the Government does not refer to these allegations in its reply, the Committee requests the Government to be good enough to furnish its observations thereon.
• Allegations relating to Intimidation of African Workers
  169. 169 It is alleged, further, that the Railways Administration and Security Police intimidate African workers who join the South African Railways and Harbour Workers' Union, and that in December 1961 the office of the union in Johannesburg was raided by the police, who confiscated the membership cards of individual members of the union. Since then, it is alleged, the workers whose cards were confiscated, have been interrogated by the Railway Police and threatened with dismissal if they did not resign from the union; many of those who refused to resign have either been dismissed or transferred to rural areas at lower rates of pay.
  170. 170 These allegations have come before the Committee in another case in which, after noting that the Government had not referred to the matter in its reply, the Committee recommended the Governing Body to request the Government to furnish its observations on the allegations. In these circumstances the Committee has deferred its examination of this aspect of the case, pending the receipt of such observations.
• Allegations relating to Racial Segregation within the Trade Unions
  171. 171 These allegations relate to the provisions of the South African Industrial Conciliation Act, 1956, as amended, which prevent the future registration of unions admitting both coloured and white members, provide for existing unions to segregate white and coloured members in separate branches, to hold separate meetings for the different races and to establish an all-white executive, penalties being provided in the event of a union's Constitution not being adapted to the requirements of the Act.
  172. 172 The Government has not referred to these matters in its observations but the Committee has already been called upon to examine similar allegations in earlier cases relating to the Republic (then the Union) of South Africa.
  173. 173 When it adopted the conclusions contained in paragraph 209 (4) and (5) of the Committee's 24th Report, the Governing Body, at its 133rd Session (November 1956), noted that the provisions of section 8 of the Act of 1956, with respect to the organisation in registered, mixed trade unions of separate branches for white persons and coloured persons respectively and the holding of separate meetings by the separate branches are not compatible with the generally accepted principle that workers' organisations should have the right to draw up their Constitutions and rules and to organise their administration and activities and that provisions reserving to Europeans the right to be members of the executive committees of such trade unions are not compatible with the principle stated above or with the principle that workers' organisations should have the right to elect their representatives in full freedom. Further, the Governing Body noted that the provisions in the Act of 1956 prohibiting future registration of mixed trade unions are not compatible with the generally accepted principle that workers, 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 or with the principle that all workers' organisations should enjoy the right of collective bargaining. These conclusions reached by the Committee in Case No. 145 relating to the then Union of South Africa were reaffirmed in Case No. 200 relating to the same country and approved by the Governing Body at its 144th Session (March 1960). In these circumstances the Committee recommends the Governing Body to reaffirm those conclusions in the present case.
• Allegations relating to Job Reservations
  174. 174 The S.A.C.T.U also alleges in its communication dated 12 May 1962 that, pursuant to section 77 of the Industrial Conciliation Act, 1956, a number of investigations have been made which have led to several legally binding determinations by the competent tribunal reserving certain categories of work to white persons. Eleven such determinations are listed, together with the occupations-clothing manufacturing, motor transport driving, engineering, etc.-affected.
  175. 175 The Government has furnished no observations on these allegations, but the question of the application of these legal provisions is also one which has come before the Committee in earlier cases relating to the then Union of South Africa.
  176. 176 When it adopted paragraph 209 (3) of the Committee's 24th Report at its 133rd Session (November 1956), the Governing Body, repeating in substance the findings contained in paragraph 185 (6) of the Committee's 15th Report adopted by the Governing Body at its 128th Session (March 1955), noted that section 77 of the Industrial Conciliation Act, 1956, would, so far as workers who, by virtue of other sections of that Act, would become members of or may cease to be entitled to be members of trade unions registered or registrable under the Act are concerned, tend to prevent the negotiation by collective agreement of better terms and conditions, including terms and conditions governing access to particular employments, and thereby to infringe the rights of the workers concerned to bargain collectively and to promote and improve their working conditions which are generally regarded as essential elements of freedom of association. These conclusions reached by the Committee in Case No. 145 relating to the then Union of South Africa were reaffirmed in Case No. 200 relating to the same country and approved by the Governing Body at its 144th Session (March 1960). In these circumstances the Committee recommends the Governing Body to reaffirm those conclusions in the present case.
• Allegations relating to Measures Taken against Trade Union Leaders and Members
  177. 177 In its communication dated 12 May 1962 the S.A.C.T.U refers to the large number of banning orders served on trade union leaders and members, since the middle of 1961, pursuant to the Suppression of Communism Act and the Riotous Assemblies Act. They give the names of 19 persons alleged to have been proceeded against.
  178. 178 In particular Mr. Leon Levy (President of the S.A.C.T.U.), Mr. Melville Fletcher (Branch Secretary of the Textile Workers' Union, Durban), Mr. B. Nair (Secretary of the Metal Workers' Union, Durban) are alleged to have been confined to a certain area and also to have been banned from attending any gathering for five years, the latter restriction attaching also to Mr. Mark Williams-Shope (General Secretary of S.A.C.T.U.). Mr. Harry Gwala (Secretary of the Petermaritzburg Committee of S.A.C.T.U.) is alleged to have been prohibited from any participation in the affairs of the S.A.C.T.U.
  179. 179 The other cases alleged are somewhat different. Mr. U. Maleka (Secretary of the Furniture, Mattress and Bedding Workers' Union) and Mr. R. Takalo (Secretary of the Metal Workers' Union, Transvaal) are alleged to have been arrested while helping to distribute leaflets to African mineworkers and to have been convicted of an offence under the Trespass Act, 1959; Mr. Brown Ndavemavota (organiser for the National Organising Committee for Mineworkers), also arrested when distributing leaflets, is stated to have been sentenced to three months' imprisonment under the Urban Areas Act. Mr. R. Bapela (member of the Clothing Workers' Union) is also alleged to have been arrested when distributing leaflets. Mr. M. Lekhoto (organiser of the Transvaal General Workers' Union), Mr. Johannes Mebena (member of the Shop and Office Workers' Union) and Mr. Lawrence Ndzanga (Secretary of the South African Railways and Harbour Workers' Union) are alleged to have been arrested in connection with a placard demonstration; Mr. Columbus Nixishe (organiser of the South African Railways and Harbour Workers' Union) is stated to have been convicted of an offence under the Trespass Act, 1959. Finally, Mr. D. Sebolai and Mr. J. Mampie (respectively Assistant President and Organising Secretary of the African General Workers' Union, Kimberley) and four members of the union, Mr. A. Motaung, Mr. A. Mogoje, Mr. T. Sohleze and Mr. M. Sebolai, are stated to be awaiting trial on a charge of entering a reserve without permission.
  180. 180 The Government has furnished no observations on these allegations although it has, in the past, stated with respect to the cases of Mr. Williams-Shope and Mr. Levy that measures were taken against them under the Suppression of Communism Act, 1950, and that in those circumstances it would give no more information.
  181. 181 In these circumstances the Committee requests the Government to be good enough to furnish its observations on these allegations.
• Allegations relating to the South African Delegation at the 46th Session of the International Labour Conference
  182. 182 The S.A.C.T.U declares in its communication dated 12 May 1962 that the Workers' delegation to the 46th Session of the Conference was chosen after consultation with the Confederation of Labour (28 unions, with 150,158 white members and 175 coloured members) and the Trade Union Council (49 unions, with 110,427 white members, 44,726 coloured members and 11,850 Indian members). Until March 1962 no Africans could join the Trade Union Council; since, the Africans may be admitted but none of their unions has affiliated. The S.A.C.T.U claims 55 affiliated unions, with 54,000 members, of which 41,000 are African; it contends, therefore, to be the only truly representative workers' organisation in South Africa in terms of the I.L.O. Constitution. In the view of the complainants the delegation therefore did not represent the bulk of the workers-the Africans. The S.A.C.T.U adds that the Government still refuses to consult it when appointing the Workers' delegate, although the I.L.O. Credentials Committee, it is alleged, has repeatedly stressed the need for such consultation.
  183. 183 As the Committee has previously pointed out, it is not competent to examine matters relating to the credentials of delegates and advisers to the International Labour Conference. Nor is it competent to consider allegations that a government has not treated an occupational organisation in accordance with the Constitution of the I.L.O when designating delegates to the Conference. These are questions which fall solely within the competence of the Credentials Committee of the Conference.
  184. 184 In these circumstances the Committee recommends the Governing Body to decide that, for the reasons indicated in paragraph 183 above, it is inappropriate for it to consider these allegations further.
• Allegations relating to the General Law Amendment Act, 1962
  185. 185 Various provisions of the General Law Amendment Act, 1962, are criticised by the S.A.C.T.U in its communications dated 21 May, 9 June and 17 August 1962 and by the I.C.F.T.U in its communications dated 11 September and 21 December 1962. The different questions raised are considered separately.
       • (a) Allegations relating to the Provisions concerning Sabotage
  186. 186 In its communication dated 21 May 1962 the S.A.C.T.U declares that section 21 of the Act creates the new offence of " sabotage "; under this section, it is alleged, any criticism of the Government can be defined as " sabotage " and is punishable by death by hanging or a minimum sentence of five years' imprisonment. In the view of the complainants these provisions mean that any white, Indian or coloured workers who go on strike contrary to the provisions of the Industrial Conciliation Act, 1956, and any African workers who go on strike under any circumstances for higher wages or improved living conditions can be prosecuted for sabotage. This, says the complainant, is because such action may be construed as " obstructing " or " endangering " the maintenance of law and order or " injuring " the property of owners of capital; the position is especially serious in the case of transport and food and canning workers and workers connected with the fuel, light and power industries and with sanitary services, fire extinguishing, hospitals and medical services, postal, telegraph and broadcasting services. If a person paints a " higher wages " slogan on a wall, it is alleged, he " injures " or " damages " property and so faces the death penalty; if a trade union organiser goes into a factory to enlist members or address the workers without the permission of the owner he can be charged with sabotage.
  187. 187 Once a person is charged with sabotage, it is alleged, he is under the onus of proving that what he did, " objectively regarded ", was not calculated or committed with intent to produce any of the effects defined in section 21 (2) of the Act. Thus a striker for higher wages would have to show that the strike was not likely to " cause substantial loss " to the employer; if the worker were in the fuel, water, light, power, medical or fire extinguishing services or industries, he could not discharge the onus because, if the strike were a serious one, it would " seriously interrupt the supply or distribution " of the said services. If a trade union organiser seeking to organise workers to put demands to their employers refers to the employers in a hostile way, he could not show that " objectively " his act was not likely " to cause... feelings of hostility between different sections of the population " (i.e. workers and employers); thus, it is alleged, " he could be convicted of sabotage and sentenced to death ".
  188. 188 The complainant criticises this part of the Act on the ground that, where a charge of sabotage is laid, the normal criminal procedure of preparatory examination is done away with; this examination in other cases assists the accused in finding out what the case is against him and assists him in preparing his defence. It is further alleged that an acquitted person can be tried again, on the same facts, on another charge of sabotage and that even juveniles under 18 can be sentenced to death for sabotage.
  189. 189 Finally, it is alleged, the decision in all cases as to whether or not a person shall be charged with sabotage is in the discretion of the Attorney-General.
  190. 190 In its communication dated 9 June 1962 the S.A.C.T.U criticises the Trade Union Council of South Africa for having contented itself with the assurance of the Minister of Justice that the Act would not affect unions registered under the Industrial Conciliation Act, 1956, thus leaving other workers and unions, including all African workers and unions, at the mercy of the law concerning sabotage.
  191. 191 The provisions of the new Act referred to in paragraphs 186 to 189 above are attacked, on substantially the same grounds, by the I.C.F.T.U, in its communication dated 11 September 1962.
  192. 192 The I.C.F.T.U declares that the fact that trade unionists charged with sabotage because of their trade union activities can be sentenced to death in the same way as for treason is contrary to all I.L.O principles. In this connection the complainant states that when the Governing Body examined Case No. 200 relating to the then Union of South Africa, it reaffirmed, in paragraph 162 of the 44th Report of the Committee, its earlier rejection of the Government's argument that the question of the trial of certain persons on charges of high treason fell outside the competence of the I.L.O by stating that although an indictment for high treason was clearly outside the competence of the I.L.O, the question whether the formulation of such a charge on the basis of facts and allegations involving the exercise of trade union rights is to be regarded as a matter relating to high treason or a matter related to the exercise of trade union rights is not one which can be determined unilaterally by the Government concerned, in such a manner as to prevent the Governing Body from inquiring further into it.
  193. 193 The complainant declares also that the judicial procedure under the 1962 Act is contrary to articles 10 and 11 of the Universal Declaration of Human Rights, which provide that " Everyone is entitled in full equality to a fair and public hearing by an independent tribunal " and that " Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence ".
  194. 194 Finally the complainant considers that this aspect of the case should be examined as an urgent case in accordance with paragraph 13 of the 29th Report of the Committee approved by the Governing Body at its 140th Session (November 1958).
  195. 195 In its communication dated 17 January 1963 the Government declares that the purpose of the General Law Amendment Act, 1962, was to amend certain weaknesses in the Suppression of Communism Act, 1950, and to define the offence of sabotage, and that the fact that the legislature intended to ensure that " the activities of bona fide trade unions would not be affected " is clear from the provisions of sections 1 (2), 2 (3), 5 (3) and 5 ter (1) of the Suppression of Communism Act, 1950, as amended, and from the statement of the Minister of Justice in the House of Assembly, on 21 May 1962, when he introduced the General Law Amendment Bill. The Minister then said:
• I want to repeat that this Bill... is designed purely and simply to make the subversive elements and the Communists harmless... and, secondly, to deprive them of the opportunities and the means at their disposal to make propaganda, thirdly, to punish sabotage, and to punish it effectively.
  196. 196 The Government declares that acts which are lawful under the Industrial Conciliation Act, 1956, or the Railways and Harbours Service Act, 1960, are not rendered unlawful by the General Law Amendment Act, 1962.
  197. 197 Section 21 (3) provides that no trial for the offence of sabotage shall be instituted - without the written authority of the Attorney-General or acting Attorney-General having jurisdiction in the area concerned; the trial shall, pursuant to section 21 (4) (a), be by a Judge of the Supreme Court without a jury. Attorneys-General are senior officials of the State, with many years of experience in the administration of justice. They must be " impartial and above reproach in the execution of their duties ". In the Government's view this procedure guarantees fair and just treatment.
  198. 198 The Government denies that the onus of proving himself not guilty of sabotage rests on the accused, contending that section 21 (1) of the Act places on the State the responsibility of proving that the act took place and that it was committed wrongfully and wilfully; section 21 (2) " merely enumerates the defences " which may be put forward after the State has made out a prima facie case.
  199. 199 In conclusion the Government submits that the matters set forth in its reply show that the provisions of the General Law Amendment Act, 1962, are not aimed at interfering in any way with the exercise of bona fide trade union rights.
  200. 200 The present allegations are connected with the statutory offence of sabotage which, under the Act of 1962, may, like treason, entail the death penalty. In a previous case relating to the then Union of South Africa the Committee, while recognising fully that a charge of high treason as such falls clearly outside the competence of the I.L.O, considered that the question whether the formulation of such a charge on the basis of facts and allegations involving the exercise of trade union rights is to be regarded as a matter relating to high treason or a matter relating to trade union rights is not one which can be determined unilaterally by the government concerned, in such a manner as to prevent the Governing Body from inquiring further into it. In the present case, in which it is specifically alleged that various activities of trade unions and of their members are liable to be prosecuted as constituting sabotage, carrying the death penalty, the Committee considers itself competent to examine the situation in substance with a view to deciding whether or not the exercise of trade union rights is or may be affected.
  201. 201 The specific legal provisions alleged to infringe trade union rights in the present context are those relating to sabotage contained in section 21 of the General Law Amendment Act, 1962.
  202. 202 Subsections (1), (2) and (3) of section 21 of the Act 1 read as follows:
  1. (1) Subject to the provisions of subsection (2), any person who commits any wrongful and wilful act whereby he injures, damages, destroys, renders useless or unserviceable, puts out of action, obstructs, tampers with, pollutes, contaminates or endangers:
     • (a) the health or safety of the public;
     • (b) the maintenance of law and order;
     • (c) any water supply;
     • (d) the supply or distribution at any place of light, power, fuel, foodstuffs or water, or of sanitary, medical or fire extinguishing services;
     • (e) any postal, telephone or telegraph services or installations, or radio transmitting, broadcasting or receiving services or installations;
     • (f) the free movement of any traffic on land, at sea or in the air;
     • (g) any property, whether movable or immovable, of any other person or of the State, or who attempts to commit, or conspires with any other person to aid or procure the commission of or to commit, or incites, instigates, commands, aids, advises, encourages or procures any other person to commit, any such act, or who in contravention of any law possesses any explosives, fire-arm or weapon or enters or is upon any land or building or part of a building, shall be guilty of the offence of sabotage and liable on conviction to the penalties provided for by law for the offence of treason: provided that, except where the death penalty is imposed, the imposition of a sentence of imprisonment for a period of not less than five years shall be compulsory, whether or not any other penalty is also imposed.
  2. (2) No person shall be convicted of an offence under subsection (1) if he proves that the commission of the alleged offence, objectively regarded, was not calculated and that such offence was not committed with intent to produce any of the following effects, namely:
     • (a) to cause or promote general dislocation, disturbance or disorder;
     • (b) to cripple or seriously prejudice any industry or undertaking or industries or undertakings generally or the production or distribution of commodities or foodstuffs at any place;
     • (c) to seriously hamper or to deter any person from assisting in the maintenance of law and order;
     • (d) to cause, encourage or further an insurrection or forcible resistance to the Government;
     • (e) to further or encourage the achievement of any political aim, including the bringing about of any social or economic change in the Republic;
     • (f) to cause serious bodily injury to or seriously endanger the safety of any person;
     • (g) to cause substantial financial loss to any person or to the State;
     • (h) to cause, encourage or further feelings of hostility between different sections of the population of the Republic;
     • (i) to seriously interrupt the supply or distribution at any place of light, power, fuel or water, or of sanitary, medical or fire extinguishing services;
     • (j) to embarrass the administration of the affairs of the State.
  3. (3) No trial for the offence of sabotage shall be instituted without the written authority given personally by the attorney-general or acting attorney-general having jurisdiction in the area concerned.
• Further, section 21 (4) (g) provides that:
• acquittal on a charge of having committed the offence of sabotage shall not preclude the arraignment of the person acquitted on any other charge arising out of the acts alleged in respect of the charge of sabotage.
  203. 203 In view of the gravity of the matters alleged, the Committee considers it necessary to have the clearest possible information concerning the application of the provisions of section 21 of the Act before the final conclusions on these particular allegations are formulated. In this connection two points are of paramount importance: (a) to ascertain which are the workers' organisations to which and to the members and officers of which the provisions of section 21 may be applied; (b) to ascertain whether, in these cases, those provisions are applicable in the circumstances alleged by the complainants.
  204. 204 With regard to the first point it appears from the information already before the Committee that the only workers' organisations exempt from the application of section 21 are those registered under the Industrial Conciliation Act, 1956, i.e. organisations of white workers or mixed organisations registered before the law made the future registration of such organisations impossible. The 1956 Act, as amended, does not permit of the registration of any new mixed organisation of white and coloured persons, as the Government has confirmed. An Organisation of African workers can in no event be registered, because the Act provides for the registration of trade unions of " employees ", and " employee " is defined in section 1 (1) (xi) of the Act as any person "other than a Native" "Native" means "African" (section 1 (1) (xx)). The Government states that the activities of bona fide trade unions are not affected by section 21 of the 1962 Act-in this connection the Government refers the Committee to sections 1 (2), 2 (3), 5 (3) and 5 ter (1) of the Suppression of Communism Act, 1950, as amended, to which the General Law Amendment Act, 1962, is, indeed, an amending Act, which also reinforces the earlier Act by certain new legislative provisions, including the said section 21. The sections of the 1950 Act to which the Government refers the Committee reveal specifically that the organisations whose lawful activities are not affected are organisations registered under the Industrial Conciliation Act, 1956, which has replaced the corresponding Act which had been in force since 1937. Moreover, when the Government states that the activities of bona fide trade unions are not affected by section 21 of the 1962 Act, it qualifies this by referring specifically to such of their activities as are " lawful " under the Industrial Conciliation Act, 1956-or the Railways and Harbours Service Act, 1960, in respect of the sectors where the latter enactment is applicable.
  205. 205 It would seem clear, therefore, that any act by a registered union or any member or members thereof which is not lawful under the 1956 Act would be a " wrongful " act in the terms of section 21 of the 1962 Act if it otherwise satisfied the definition of sabotage set forth therein. Any strike whatsoever by African workers is a " wrongful " act because it is specifically unlawful in all cases according to the Native Labour (Settlement of Disputes) Act, 1953.
  206. 206 It is at this point that the Committee has to determine the second question-whether, in the case of persons to whom section 21 can be applied, it can be applied in the manner alleged.
  207. 207 It is not sufficient that an act shall be " wrongful ", or, more specifically, " wrongful and wilful ", to give rise to a prosecution for sabotage under section 21 of the 1962 Act. It must also have one or more of the effects set forth in section 21 (1).
  208. 208 It is on these grounds that the complainants allege that certain acts by unions and union members-except in the case of lawful acts by registered organisations-are punishable, as sabotage, by death by hanging or a minimum of five-years' imprisonment. The allegation is elaborated as follows: (a) any strike by African workers could be prosecuted as a " wrongful and wilful act " if it " obstructs or endangers " " the maintenance of law and order " or " injures " the property of any person; (b) special attention is drawn to the situation of workers in certain specified occupations in relation to the definition of sabotage as including wrongful and wilful acts which " injure, render unserviceable, put out of action ", etc. " any water supply... the supply or distribution at any place of light, power, fuel, foodstuffs or water, or of sanitary, medical or fire extinguishing services... any postal, telephone or telegraph services ", etc.; (c) a person who paints a " higher wages " slogan on the wall of a building faces the death penalty for sabotage because he thereby " injures " or " damages " property; (d) if a trade union organiser goes inside factory premises to enlist new members or address the workers without the consent of the factory owner he can be charged with sabotage; (e) if a participant in a big strike for higher wages is unable, in terms of section 21 (2), to show that his strike was not likely to " cause substantial financial loss " to the employer, he may be convicted of sabotage; (f) if a trade union organiser is organising workers to put demands to employers and refers to the employers in a hostile way and then fails to show that " objectively " his act was not likely to " cause... feelings of hostility ", he may be convicted of sabotage.
  209. 209 These are cases of alleged possible application of the provisions of section 21 in the case of African workers or officers of African trade unions or, in fact, in case of acts by workers in registered unions which are nevertheless not performed in lawful compliance with the Industrial Conciliation Act, 1962.
  210. 210 In general, the Committee does not consider purely hypothetical allegations concerning the possible incidence of enactments of a general character in cases in which the International Labour Conventions relating to freedom of association are not in force, so that no question as to formal obligations under these Conventions arise, and in which no concrete case of the application of the provisions of the enactment to trade union activities has as yet arisen. The Committee considers, however, that, in a case in which an imminent danger to life or liberty by reason of the application of the provisions of an enactment to trade union activities is alleged to exist, it should not defer examining the allegations submitted to it until the imminent danger has been translated into an irreparable loss of life or deprivation of liberty. In view of the gravity of the potential consequences of the application to trade union activities of the provisions of the General Law Amendment Act, 1962, and especially of section 21 of that Act relating to sabotage, if any such application should occur, the Committee considers it necessary to pursue its examination of this matter at the present stage.
  211. 211 In these circumstances the Committee recommends the Governing Body to ask the Government whether it can be assumed from the reply which it has been good enough to furnish that no trade union or officers or members thereof pursuing trade union purposes (some examples of which are noted in paragraph 208 above), whether it is a registered trade union or not and irrespective of the race or races constituting its membership, would be liable to prosecution under section 21 of the General Law Amendment Act, 1962, or whether, on the other hand, the Government's reply is to be interpreted as meaning that the activities of one race are exempted from the application of that section while the activities of another race are not so exempted.
  212. 212 A further point in connection with section 21 of the Act is not quite clear. The complainants alleged that if any act is committed which accords with the definition of acts of sabotage set forth in section 21 (1), the onus is upon the accused to prove the validity of one of the defences set forth in section 21 (2). The Government denies this, stating that by virtue of section 21 (1) the State must make out a prima facie case, providing that the act took place and that it was committed wrongfully and wilfully, and that section 21 (2) merely enumerates the possible defences. Section 21 (2), however, appears to place a very serious burden of proof on the accused. It appears that, if the State has made out a prima facie case-not a proven case-the accused shall not be convicted if he proves that the commission of the offence, objectively regarded, was not calculated and that such offence was not committed with intent to produce " any " of the effects enumerated in subparagraphs (a) to (j) of section 21 (2). They are not expressed in those subparagraphs as an enumeration of alternative defences but as a series of possible effects of the action taken, any one of which appears on the basis of the language used to defeat the defence. The effects which the defendant appears to require to show that he did not intend to produce include " the bringing about of any social or economic change in the Republic " or " to embarrass the administration of the affairs of the State ". This language is so broad as to appear to exclude any action which can be regarded as suggesting any change in existing social or economic conditions or any kind of public inconvenience.
  213. 213 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to its view that the provisions of section 21 (2) of the General Law Amendment Act, 1962, are inconsistent with generally accepted principles relating to freedom of association.
       • (b) Allegations relating to the Suppression of Newspapers
  214. 214 It is alleged by the S.A.C.T.U, in its communication dated 21 May 1962, that since 1950 the Minister of Justice, using his powers under the Suppression of Communism Act, has banned three newspapers-The Guardian, Advance and Clarion, but that, until 1962, a newspaper thus banned could reappear under an assumed name. Now, under the General Law Amendment Act, 1962, a newspaper banned under the Act of 1950 will forfeit the £10,000 which it must, under the Act of 1962, deposit in advance with the Minister of the Interior. In the view of the complainant this will effectively prevent any workers' newspaper from reappearing once it is banned. The complainants allege further that the Publications and Entertainments Bill confers upon the authorities the power to prohibit the printing, publication and distribution of any " undesirable " literature, the definition of " undesirable " being so wide as to make it possible to suppress trade union statements and publications which express hostility to employers or which instigate strike action. So far as the General Law Amendment Act is concerned, the I.C.F.T.U makes the same allegations in its communication dated 11 September 1962.
  215. 215 The Government states that one aim of the Act of 1950 was defeated by reason of the fact that a newspaper which was banned because it disseminated Communist propaganda could simply reappear under a new name. This loophole has now been closed by the General Law Amendment Act, 1962.
  216. 216 In a number of previous cases' the Committee has expressed the view that the right to express opinions through the press is clearly one of the essential elements of trade union rights.
  217. 217 It would seem that, having regard to the above principle, it might place a very considerable hardship on any small trade union if it were required to deposit as large a sum as £10,000 before it could issue a newspaper. In these circumstances the Committee requests the Government to be good enough to state whether all trade unions are required to deposit such a bond in the case of specifically trade union newspapers and also to furnish its observations on the allegation relating to the Publications and Entertainments Bill.
       • (c) Allegations relating to the Banning of Organisations
  218. 218 The S.A.C.T.U and the I.C.F.T.U allege, in their communications dated respectively 21 May and 11 September 1962, that the General Law Amendment Act widens further the powers of state presidents to ban organisations, permitting them to ban " any organisation that carries on or has been established for the purpose of carrying on directly or indirectly any of the activities of an unlawful organisation ". It is alleged that, if the Minister " is satisfied ", for example, that a trade union is carrying on some of the activities which were once carried on by the unlawful African National Congress (e.g. campaigning for a minimum £1 a day for all workers, or demanding the repeal of " pass " laws), he may ban that union; this is a discretionary matter and the Court cannot overrule the state president unless it can be proved that he acted in bad faith. In the view of the I.C.F.T.U these provisions infringe the generally accepted principle that workers' organisations shall not be liable to be dissolved or suspended by administrative authority.
  219. 219 The Government refers to these allegations only indirectly, when it states that one of the weaknesses of the Suppression of Communism Act which it had to remedy was the fact that, despite the banning of the Communist Party, Communist activities could be continued by merely giving a new name to an organisation which was, in fact, the Communist Party.
  220. 220 Specific allegations have been made to the effect, for example, that a trade union can be banned by administrative action if it merely pursues such a normal trade union activity as that of campaigning for a minimum wage or, even, any other activity that may have been included in the programme of any banned organisation whatsoever. One of the principles laid down in the procedure for the examination of allegations relating to infringements of trade union rights is that, where precise allegations are made, the Committee cannot regard as satisfactory replies from governments which are confined to generalities. In these circumstances, the Committee requests the Government to be good enough to furnish more detailed observations on these allegations.
       • (d) Allegations relating to the Provisions of the General Law Amendment Act, 1962, Affecting Personal Liberties
  221. 221 A number of allegations are made with respect to provisions of the new Act permitting the authorities to force persons to resign from organisations, to place persons under house arrest, to ban persons from attending gatherings, to cause persons to be controlled by the police, to punish banned persons who make public statements or who are in possession of banned periodicals.
  222. 222 In its communication dated 21 May 1962, the S.A.C.T.U, after referring to the fact that under the Suppression of Communism Act the Minister had already ordered the resignation of over 50 trade union officials as being " statutory Communists ", alleges that the 1962 Act can now be used to force the resignation of union officials who have not even been " convicted of statutory communism "; if the Minister prohibits a person from attending gatherings or places a person under house arrest because he is satisfied that his activities may further the objects of " statutory communism ", he can also order him to resign from his union and not become an official or member of that or any other body. The same allegation (based on section 4 of the 1962 Act) is made by the I.C.F.T.U in its communication dated 11 September 1962.
  223. 223 In its communication dated 21 May 1962 the S.A.C.T.U alleges that, similarly, in addition to " statutory Communists ", any person whose activities are likely to further the objects of statutory communism can be placed under what amounts to house arrest. In its communication dated 11 September 1962 the I.C.F.T.U refers to the provisions of section 8 of the 1962 Act as permitting the Minister to prohibit any such person from being within or absenting himself from a mentioned place or area or communicating with any person. In its communication dated 21 December 1962 the I.C.F.T.U gives the names of 12 trade union officers alleged to have been the subject of such measures.
  224. 224 In its communication dated 21 May 1962 the S.A.C.T.U states that a person dealt with in any manner whatsoever pursuant to the Suppression of Communism Act can now, under the 1962 Act, be ordered by the Minister to report to the police at given times and to inform the police of any change of address or employment. These provisions, declares the I.C.F.T.U in its communication dated 11 September 1962, are embodied in sections 9 and 10 (a) of the 1962 Act.
  225. 225 Both complainants allege that any breach of the various restrictions mentioned above is punishable by a minimum of three and a maximum of ten years' imprisonment.
  226. 226 The S.A.C.T.U in its communication dated 21 May 1962, and the I.C.F.T.U, in its communication dated 11 September 1962, allege that any person in possession of a banned periodical is liable to up to three years' imprisonment.
  227. 227 In its communication dated 21 May 1962 the S.A.C.T.U alleges that the 1962 Act gives the Minister increased powers to ban gatherings and to prohibit individuals from attending them. Under the 1962 Act it is a crime, punishable by up to three years' imprisonment, to reproduce, in any way, the speech or statement of a person banned from gatherings. This is the position, declares the I.C.F.T.U in its communication dated 11 September 1962, in consequence of section 19 of the Act of 1962.
  228. 228 In its communication dated 17 August 1962 the S.A.C.T.U sets forth what it states now to be the situation, by virtue of the 1962 Act, arising from the banning as statutory Communists of four of the leading officials of the S.A.C.T.U. As a result of the extended powers given to the Minister by the Act of 1962, none of these union officers may issue any statement on any matter affecting S.A.C.T.U members or workers generally; they may not address leaflets to their members; if the secretary of a local committee or an affiliated union receives a letter from the National President or General Secretary of the S.A.C.T.U he may not read it to his own executive committee; press organs of the unions cannot, now, reproduce even statements made before the enactment of the 1962 Act, such as extracts from the report of the General Secretary or presidential address to the national trade union conference.
  229. 229 In its communication dated 17 January 1963 the Government confines itself to stating, with regard to these allegations, that the provisions of the 1962 Act were intended to prevent the dissemination of Communist propaganda and to prevent " the inciting speeches by persons who, because of their support of the Communist cause, had been banned from attending meetings ", being recorded or read to audiences at meetings or being published in newspapers supporting Communist ideologies.
  230. 230 In these circumstances the Committee requests the Government to be good enough to furnish more detailed observations on these allegations.
       • (e) Allegations relating to the Provisions of the General Law Amendment Act concerning the Offence of Illegally Leaving the National Territory
  231. 231 Under the Departure from the Union Regulation Act, 1955, any person who leaves South Africa without a passport commits an offence punishable by a minimum of three months' imprisonment. Now, declares the S.A.C.T.U, in its communication dated 21 May 1962, the General Law Amendment Act, 1962, has amended the Criminal Code, in order to permit the State to prove the offence more easily, so as to provide that any document which indicates that a person has been outside the Republic is prima facie evidence that he was outside the country, if it is accompanied by a certificate from the Secretary of Foreign Affairs that the document is of foreign origin.
  232. 232 The Government makes no observation on these allegations, but it is to be observed that the complainants make no allegation concerning the application of these provisions, either generally or in any specific case, in such a manner as to affect the exercise of trade union rights.
  233. 233 In these circumstances the Committee recommends the Governing Body to decide that these allegations do not call for further examination.

The Committee's recommendations

1. 234. In all the circumstances the Committee recommends the Governing Body:
   • (a) to ask the Government whether it can be assumed from the reply which it has been good enough to furnish with regard to the allegations relating to the provisions of section 21 of the General Law Amendment Act, 1962, concerning the offence of sabotage, that no trade union or officers or members thereof pursuing trade union purposes (some examples of which are noted in paragraph 208 above), whether it is a registered trade union or not and irrespective of the race or races constituting its membership, would be liable to prosecution under section 21 of the General Law Amendment Act, 1962, or whether, on the other hand, the Government's reply is to be interpreted as meaning that the activities of one race are exempted from the application of that section while the activities of another race are not so exempted;
   • (b) to draw the attention of the Government to its view that the provisions of section 21 (2) of the said Act are inconsistent with generally accepted principles relating to freedom of association;
   • (c) to decide, with regard to the allegations relating to racial segregation within the trade unions, to reaffirm the decisions taken by the Governing Body in November 1956 and March 1960 and recapitulated in paragraph 173 above;
   • (d) to decide, with regard to the allegations relating to job reservations, to reaffirm the decisions taken by the Governing Body in March 1955, November 1956 and March 1960 and recapitulated in paragraph 176 above;
   • (e) to decide that, for the reasons indicated in paragraph 183 above, it is inappropriate for the Governing Body to consider further the allegations relating to the South African delegation at the 46th Session of the International Labour Conference;
   • (f) to decide that the allegations relating to the national budget and the allegations relating to the provisions of the General Law Amendment Act, 1962, concerning the offence of illegally leaving the national territory do not call for further examination;
   • (g) to take note of the present interim report of the Committee with regard to the allegations relating to the prohibition of strikes, anti-union propaganda carried on by government departments, intimidation of African workers and measures taken against trade union leaders and members and, with regard to the allegations relating to the provisions of the General Law Amendment Act, 1962, concerning the suppression of newspapers, the banning of organisations and the restriction of personal liberties, it being understood that the Committee will report further thereon to the Governing Body when it has received the observations which it has decided to request the Government to be good enough to furnish.
     • Geneva, 25 February 1963. (Signed) Roberto AGO, Chairman.