Definitive Report - Report No 70, 1963

Case No 314 (South Africa) - Complaint date: 19-NOV-62 - Closed

1. 86. The complaint of the S.A.C.T.U is contained in a communication addressed to the I.L.O on 19 November 1962. The Government furnished its observations on the complaint in a communication dated 11 March 1963.
2. 87. 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. 88. The complaining organisation alleges that the Government is persecuting Mr. Alven Bennie, an organiser of one of its affiliated unions, the General Workers' Union, Port Elizabeth. After being acquitted in 1958 and 1961 on charges arising out of incidents connected with his trade union activity, it is alleged, he was fined early in 1962 after having been arrested when he was distributing leaflets to railway workers. On 4 October 1962 he was served with orders of the Minister of Justice (a) confining him to the district of Port Elizabeth for five years; (b) requiring him to report to a specified police station every day at 7 a.m. for the same period; (c) prohibiting him from attending for five years, within the Republic, any social gathering (i.e. a gathering at which those present also have social intercourse) or political gathering (i.e. a gathering at which any form of State or any principle or policy of the Government or State is propagated, defended, attacked, criticised or discussed). The complainant considers that the treatment of Mr. Bennie is part of a campaign by the authorities to prevent railway workers being organised in the South African Railways and Harbour Workers' Union. It is alleged that Mr. Bennie was given no reasons for the orders and has had no opportunity to defend himself and that the orders mean the virtual end of his trade union work because he will be unable to interview, address or help workers.
2. 89. In its communication dated 11 March 1963 the Government declares that the orders were served pursuant to the Suppression of Communism Act, 1950, and not with a view to interfering with the exercise of trade union rights. The Government states that, as in previous similar cases, it cannot furnish any further information as to the reasons for the action taken beyond stating that Mr. Bennie did not, as he was entitled to do, request the Minister to furnish him with the reasons and with a statement of the information which induced him to issue the orders.
3. 90. This case is another instance of a trade union leader having been banned from public and trade union life by operation of the Suppression of Communism Act, 1950, the essential elements of which are not distinguishable from those present in the other cases in which the Committee has examined similar allegations relating to measures taken against other South African trade union leaders.
4. 91. In Case No. 63 relating to the then Union of South Africa, the Committee, in paragraphs 268 to 276 of its 12th Report, formulated certain conclusions and made recommendations to the Governing Body concerning similar allegations, presented in far greater detail, relating to the effect of the Suppression of Communism Act on the exercise of trade union rights. When similar allegations relating to further persons came before it in Case No. 102, the Committee recommended the Governing Body, in paragraph 185 (1) of its 15th Report, " to reaffirm the conclusions regarding the Suppression of Communism Act, 1950, as amended in 1951, set forth in paragraphs 268 to 276 of its 12th Report ".
5. 92. In Case No. 63 referred to in the preceding paragraph, the Committee first of all recalled the principles formulated in paragraph 29 of its First Report with respect to the examination of complaints to which the government concerned ascribed a further political character, and the fact that it had decided that, even though cases may be political in origin or present political aspects, they should nevertheless be examined from the point of view of substance if they raise questions directly affecting the exercise of trade union rights. The Committee then observed that it had followed the above rules in certain earlier cases, including Case No. 10 relating to Chile and Case No. 5 relating to India.
6. 93. In the said case relating to Chile the Committee had expressed the view that a provision in the law of that country which permitted a person merely charged with an offence, but not convicted thereof, to be deprived of the right to belong to a trade union might appear unusual and suggested to the Government that it might wish to re-examine the said provision in the light of the principles enunciated in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In Case No. 63 the Committee again emphasised the importance which it attached to those principles and, in particular, to the principle that workers and employers, 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 with previous authorisation.
7. 94. In the said case relating to India the Committee had emphasised, after examining allegations relating to measures of preventive detention, the fact that it should be the policy of every government to take care to ensure observance of the rights of man and, especially, of the right of all detained persons to receive a fair trial at the earliest possible moment. The Committee reaffirmed that principle in Case No. 63 relating to the then Union of South Africa.
8. 95. Accordingly, in Case No. 63 the Committee submitted to the Governing Body the conclusions contained in paragraph 276 of its 12th Report which reads as follows:
9. 276. In so far as the South African Act of 1950 was enacted, as the Government contends, purely for a political reason, namely, that of barring Communists in general, as citizens, from all public life, the Committee considers that the matter is one of internal national policy with which it is not competent to deal and on which it should therefore refrain from expressing any view. However, in view of the fact that measures of a political nature may have an indirect effect on the exercise of trade union rights, the Committee wishes to draw the attention of the South African Government to the views which it has expressed in the above cases with regard, first, to the principle that workers, without distinction whatsoever, should have the right to join organisations of their own choosing and, secondly, to the importance of due process in cases in which measures of a political nature may indirectly affect the exercise of trade union rights. Consequently, the Committee recommends the Governing Body to communicate the above conclusions to the Government of the Union of South Africa.
   • As observed in paragraph 91 above the Committee reaffirmed these conclusions in Case No. 102 relating to the then Union of South Africa.

B. B. The Committee's conclusions

1. 96. The allegations now made with respect to the case of Mr. Alven Bennie, organiser of the General Workers' Union, Port Elizabeth, add no new elements to the allegations made in Cases Nos. 63 and 102, beyond the addition of the name of a further person to the list of those alleged to have been removed from trade union life under the Suppression of Communism Act, and involve the same questions of principle as those with respect to which the Committee submitted recommendations to the Governing Body in its 12th Report.

The Committee's recommendations

1. 97. In these circumstances the Committee recommends the Governing Body to reaffirm the conclusions regarding the Suppression of Communism Act, 1950, as amended in 1951, set forth in paragraphs 268 to 276 of the Committee's 12th Report, and, especially, to draw attention to the importance which the Governing Body attaches to the principle that workers, without distinction whatsoever, should have the right to join organisations of their own choosing, and to the importance of due process in cases in which measures of a political character may indirectly affect the exercise of trade union rights, both of which principles were affirmed by the Governing Body when it adopted, on 11 March 1954, paragraph 276 of the 12th Report of the Committee cited in paragraph 95 above.