Informe definitivo - Informe núm. 12, 1954

Caso núm. 63 (Sudáfrica) - Fecha de presentación de la queja:: 31-MAY-52 - Cerrado

A. Analysis of the Complaint

1. 257. The complainant, in a communication dated 31 May 1952, alleges that the Government has attacked and is attacking trade union rights on the pretext of suppressing communism, that on 20 May 1952 three trade union leaders of non European and three of European origin received notice from the Minister of Justice forbidding them as " named " Communists from taking any part in public life and, therefore, from carrying on trade union work. None of the persons concerned are known as Communists, but for their trade union work; and the intent of this step, according to the complainant, is to silence the militant section of the trade union movement. The complaining organisation states that it is unaware of the political views of these trade union leaders-Mr. J. J. Marks, of African origin, President of the African Mine Workers' Union and of the Transvaal African Congress, Mr. Gensen Poonen, of Indian origin, Secretary of the Tobacco Workers' Union, Mr. I. Wolfsen, of European origin, Secretary of the Baking Workers' Union, Mr. R. Fleet, of European origin, Secretary of the Hairdressing Employees' Union, Mr. J. D du Plessis, of European origin, Vice-President of the Union of Laundering, Cleaning and Dyeing Workers, and Mr. E. Sachs-beyond the fact that Mr. Sachs is not a Communist. The complainant states further that Mr. Sachs was arrested on 24 May 1952, while addressing a meeting, for a purely technical offence, was released on bail, was rearrested on 26 May for addressing another meeting and was still in prison when the complaint was presented on 31 May 1952.
2. 258. In a further communication dated 7 September 1953 relating in particular to the case of Mr. Wolfsen, which has been transmitted to the South African Government, the complainant reproduces the text of a document stated to have been sent to Mr. Wolfsen on 25 June 1953 by the South African Minister of Justice, in which the Minister calls upon him, pursuant to the powers conferred by the Suppression of Communism Act, 1950, to resign within 30 days from his position as an official and member of the National Baking Industrial Union and not to become again an official or member thereof or to take part in its activities and not to become an official or member of or to participate in the activities of any trade union registered under the Industrial Conciliation Act, 1937. The complainant states that the Government, by virtue of the Act of 1950, can attach the label of " Communist " to any persons whose activities do not meet with its approval and thus bar them from public life without bringing them before any court and without giving them any right of appeal. The complainant declares that the document mentioned above was sent to Mr. Wolfsen in the same week as that in which his union, together with another union, was placing pickets outside certain bakeries with the object of restraining the employers from contravening the five-day-week provisions of the collective agreement in force with respect to the bakery trade. The Government's attacks on Mr. Wolfsen, contends the complainant, constitute a deliberate attempt to interfere with the trade union rights of the workers by depriving them of their leader at a critical time-when the union was engaged in a dispute centred round the delivery of bread on Wednesdays-and constitute a flagrant violation of the workers' right to elect their union representatives and a denial to Mr. Wolfsen, as a worker, of the right to join a trade union and to take part in its activities. The Government, concludes the complainant, is contravening articles 20 and 23 (4) of the Universal Declaration of Human Rights and Articles 2, 3 and 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948.
3. B. Analysis of the Replies
4. 259. The Government restates the view expressed by its delegate to the International Labour Conference in 1950 that the Governing Body was not competent under the I.L.O Constitution to set up the Fact-Finding and Conciliation Commission on Freedom of Association for the implementation of obligations which did not legally exist and which could only arise under a Convention with respect to States which ratified it-a principle substantiated by the Working Group of the Commission on the Implementation of the Human Rights Covenant-and that the Conference was not competent to confirm the Governing Body's action. In support of its view that, if additional machinery for the protection of trade union rights be considered essential, such machinery should be established by an appropriate Constitutionally adopted amendment to the I.L.O Constitution, the Government refers to certain passages in an advisory opinion of the Permanent Court of International Justice to the effect that " while the competence of the I.L.O so far as concerns the investigation of labour questions and the formulation of proposals, whether for national legislation or international agreements, is exceedingly broad, its competence is almost wholly confined to that auxiliary form of activity. The most important, if not the only exception to this rule, may be found in the power given to the Organisation to deal with the annual reports of Members concerning their enforcement of international Conventions and to consider and, by means of a Commission, to inquire into complaints against Members regarding the observance or enforcement of such Conventions." The Government then states, however, that it desires to place the true facts before the Committee on Freedom of Association but that this should not be interpreted as a deviation on its part from the attitude which it has already adopted.
5. 260. Action was taken against the persons named under the Suppression of Communism Act, No. 44, of 1950, amended by Act No. 50 of 1951, a copy of which, as amended, accompanies the reply.
6. 261. The provisions of the Act especially relevant to the complaint are as follows:
7. § 1. (1)..........................................................................................................................................
8. (iii) " communist " means a person who professes or has at any time before or after the commencement of this Act professed to be a communist or who, after having been given a reasonable opportunity of making such representations as he may consider necessary, is deemed by the Governor-General or, in the case of an inhabitant of the territory of South-West Africa, by the Administrator of the said territory, to be a communist on the ground that he is advocating, advising, defending or encouraging or has at any time before or after the commencement of this Act, whether within or outside the Union, advocated, advised, defended or encouraged the achievement of any of the objects of communism or any act or omission which is calculated to further the achievement of any such object, or that he has at any time before or after the commencement of this Act been a member or active supporter of any organization outside the Union which professed, by its name or otherwise, to be an organization for propagating the principles or promoting the spread of communism, or whose purpose or one of whose purposes was to propagate the principles or promote the spread of communism, or which engaged in activities which were calculated to further the achievement of any of the objects of communism;
9. ......................................................................................................................................................
10. § 2. (1) The Communist Party of South Africa, including every branch, section or committee thereof and every local, regional or subsidiary body forming part thereof, is hereby declared to be an unlawful organization.
11. (2) If the Governor-General is satisfied:
12. (a) that any other organization professes or has on or after the fifth day of May, 1950, and before the commencement of this Act, professed by its name or otherwise, to be an organization for propagating the principles or promoting the spread of communism; or
13. (b) that the purpose or one of the purposes of any organization is to propagate the principles or promote the spread of communism or to further the achievement of any of the objects of communism; or
14. (c) that any organization engages in activities which are calculated to further the achievement of any of the objects referred to in paragraphs (a), (b), (c) or (d) of the definition of " communism " in section one; or
15. (d) that any organization is controlled, directly or indirectly, by an organization referred to in sub-section (1) or paragraphs (a), (b) or (c) of this sub-section,
16. he may without notice to the organization concerned by proclamation in the Gazette declare that organization to be an unlawful organization, and the Governor-General may in like manner withdraw any such proclamation.
17. ......................................................................................................................................................
18. § 3. (1) As from the date upon which an organization becomes an unlawful organization in terms of sub-section (1) of section two or a proclamation under sub-section (2) of the said section:
19. ......................................................................................................................................................
20. (b) all property (including all rights and documents) held by the unlawful organization or held by any person for the benefit of the unlawful organization, shall vest in a person to be designated by the Minister as the liquidator of the assets of the unlawful organization.
21. ......................................................................................................................................................
22. § 4. ...(10) If directed by the Minister to do so, the liquidator shall compile a list of persons who are or have at any time before or after the commencement of this Act been office-bearers, officers, members or active supporters of the organization which has been declared an unlawful organization: provided that the name of a person shall not be included in any such list or in any category mentioned in such list, unless he has been afforded a reasonable opportunity of showing that his name should not be included therein.
23. (11) The liquidator shall have authority to receive and retain any communication addressed to the unlawful organization or to any office-bearer or officer thereof as such, and the Postmaster-General shall, if requested to do so by the liquidator, cause all postal articles so addressed, to be delivered to the liquidator.
24. ......................................................................................................................................................
25. § 5. (1) The Minister may by notice in writing require any person whose name appears on any list in the custody of the officer referred to in section eight, or who has been convicted of an offence under section eleven or is a communist:
26. (a) to comply, while he is an office-bearer, officer or member of any organization specified in the notice, or a member of any public body so specified or while he holds any public office so specified, with such conditions as may be prescribed therein;
27. (b) to resign as an office-bearer, officer or member of an organization specified in the notice, within a period so specified, not again to become an office-bearer, officer or member of that organization and not to take part in its activities;
28. (c) not to become an office-bearer, officer or member and not to take any part in the activities of any organization specified in the notice or of any kind of organization so specified;
29. (d) not to become a member of any public body specified in the notice or to hold any public office so specified or, if he is such a member or holds such an office, to resign, within a period so specified, as such member or from such office and not again to become such a member or hold such office;
30. (e) not to become a member of either House of Parliament or a provincial council or the Legislative Assembly of the territory of South-West Africa.
31. ......................................................................................................................................................
32. § 7. (1) If the Minister has reason to suspect:
33. (a) that the purposes, activities or control of any organization are such that it ought to be declared an unlawful organization under sub-section (2) of section two; or
34. (b) that the circumstances connected with any periodical or other publication are such that the printing, publication or dissemination thereof ought to be prohibited under section six,
35. he may in writing under his hand designate any person as an authorized officer to investigate the purposes or activities of the organization or the manner in which it is controlled, or the circumstances connected with that periodical or other publication, as the case may be.
36. (2) If directed by the Minister to do so in any case referred to in paragraph (a) of sub-section (1), an authorized officer shall compile a list of persons who are or have at any time before or after the commencement of this Act been office-bearers, officers, members or active supporters of the organization concerned: provided that the name of a person shall not be included in any such list or in any category mentioned in such list unless he has been afforded a reasonable opportunity of showing that his name should not be included therein.
37. ......................................................................................................................................................
38. § 8. (1) Every list compiled under sub-section (10) of section four shall, and every list compiled under sub-section (2) of section seven shall if the organization concerned is under sub-section (2) of section two declared to be an unlawful organization, be kept in the custody of an officer designated from time to time by the Minister, until the relevant proclamation under sub-section (2) of section two has been withdrawn.
39. (2) If any person whose name appears on any such list proves that his name should not appear on it or is incorrectly included in any category mentioned in the list, or if any office-bearer, officer, member or active supporter of any organization which has under sub-section (2) of section two been declared an unlawful organization proves that he neither knew nor could reasonably have been expected to know that the purpose or any of the purposes of the organization were of such a nature or that it was engaging in such activities as might render it liable to be declared an unlawful organization in terms of sub-section (2) of section two, the said officer shall remove his name or correct the list accordingly.
40. § 9. Whenever in the opinion of the Minister there is reason to believe that the achievement of any of the objects of communism would be furthered:
41. (a) by the assembly of a particular gathering in any place; or
42. (b) if a particular person were to attend any gathering in any place,
43. the Minister may, in the manner provided in sub-section (1) of section one of the Riotous Assemblies and Criminal Law Amendment Act, 1914 (Act No. 27 of 1914), prohibit the assembly of that gathering in any place within the Union, or he may by notice under his hand addressed and delivered or tendered to that particular person, prohibit him from attending any gathering in any place within an area and during a period specified in such notice.
44. ......................................................................................................................................................
45. § 11. Any person who:
46. a) performs any act which is calculated to further the achievement of any of the objects of communism;
47. (b) advocates, advises, defends or encourages the achievement of any such object or any act or omission which is calculated to further the achievement of any such object;
48. (c) contravenes any provision of paragraph (a) of sub-section (1) of section three;
49. (d) prints, publishes or disseminates any periodical publication or disseminates any other publication in contravention of a proclamation under section six;
50. (e) knowingly allows any premises or any other property whatsoever to be used for the purposes of or in connection with any offence under paragraph (a), (b), (c) or (d);
51. (f) fails to comply with any requirement of a notice under section five;
52. (g) after a prohibition referred to in section nine and in contravention thereof, convenes a gathering in any place, or presides at or addresses a gathering the assembly whereof in any place has been prohibited under section nine;
53. (h) in contravention of a notice delivered or tendered to him in terms of section nine attends any gathering;
54. (i) subject to the proviso to sub-section (1) of section ten, contravenes or fails to comply with any notice delivered or tendered to him in terms of sub-section (1) of section ten;
55. (j) refuses or fails to answer to the best of his knowledge any question which an authorized officer or a liquidator has put to him in the exercise of his functions under this Act;
56. (k) refuses or fails to comply to the best of his power with any requirement made by an authorized officer or liquidator under this Act;
57. (l) hinders an authorized officer or a liquidator in the performance of his functions under this Act, or, without the consent of the liquidator of an unlawful organization, destroys, alters or removes any property or document held by that organization or held by any person for the benefit of that organization; or
58. (m) contravenes the provisions of sub-section (4) of section seven;
59. shall be guilty of an offence, and liable:
60. (i) in the case of an offence referred to in paragraph (a), (b), (c) or (d) to imprisonment for a period not exceeding ten years;
61. (ü) in the case of an offence referred to in paragraph (e), (f), (g), (h) or (i) to imprisonment for a period not exceeding three years; and
62. (iii) in the case of an offence referred to in paragraph (j), (k), (l) or (m) to a fine not exceeding two hundred pounds or to imprisonment for a period not exceeding one year, or to both such fine and imprisonment.
63. § 12. (1) If in any prosecution under this Act, or in any civil proceedings arising from the application of the provisions of this Act, in which it is alleged that any person is or was a member or active supporter of any organization, it is proved that he attended any meeting of that organization, or has advocated, advised, defended or encouraged the promotion of its purposes, or has distributed or assisted in the distribution of or caused to be distributed any periodical or other publication or document issued by, on behalf of or at the instance of that organization, he shall be presumed, until the contrary is proved, to be or to have been a member or active supporter, as the case may be, of that organization.
64. (2) A person shall in any prosecution for an offence under paragraph (g) of section eleven be deemed to have convened a gathering in any place if he:
65. (a) has himself or through another person caused written notice to be published, distributed or despatched, inviting the public, or any members of the public, to assemble at a specified time and place or has encouraged or assisted in the publication, distribution or despatch of such notice;
66. (b) has himself, or through another person, orally invited the public or any members of the public so to assemble; or
67. (c) has taken any active part in making arrangements for the publication, distribution or despatch of such a notice, or in organizing or making preparations for such an assembly.
68. (3) No person shall be convicted of an offence under paragraph (g) of section eleven if he satisfies the court that he had no knowledge of the prohibition of the gathering concerned.
69. ......................................................................................................................................................
70. 262. The Government indicates that when the Act was first drafted some leading trade unionists made objections to it and the Minister of Labour conferred with them. Two of these objections relating to the possible banning of strikes and the possibility of a union being declared an " unlawful organisation " were met by the insertion of appropriate amendments in the original text. The third point raised by the trade unions on the original draft was that they were prepared to support the Government in suppressing any organisation or persons who aim at establishing a dictatorship provided that the persons concerned were tried in the courts with a right of appeal to the Appellate Division. On this point, states the Government, persons contravening the Act subsequent to its enactment are tried by normal legal process. When the draft of the Act was before Parliament the Communist Party purported to dissolve itself so that if there was no Party there could be no members. The 1951 amendment, therefore, applied the Act to persons known to have been members of the Communist Party prior to the commencement of the 1950 Act. Thus, to this extent, it was not possible to meet the third point raised by the trade unions, i.e., as to trial by normal legal procedure.
71. 263. The Act is not aimed at trade unions but at Communists wherever they may be. On the other hand, being a trade union member or leader does not give a person any exemption from the application of the law of the land. It is well known that Communists have infiltrated into trade unions and other organisations. The object of the Act and of the procedure of naming those who have advocated or worked for communism and, where necessary, of restricting their freedom to carry on Communist activity, is to outlaw communism and to prevent its being advocated either openly or subversively and it is not a threat to trade union rights. This is proved by the fact that the complainant can refer only to six out of a total of about 3,000 South African trade union officials and office-bearers as being affected by the Act, although in fact there are some others.
72. 264. Regarding five of the six persons concerned, the complainant professes ignorance of their politics and.so cannot deny that they are Communists. Regarding Mr. Sachs the Government cites the statement of a Transvaal judge who tried a civil case brought by him in 1946 to the effect that the official publication of the Garment Workers' Union, edited by Mr. Sachs, had contained articles extolling communism, Lenin, Stalin and the Soviet Union.
73. 265. After his second arrest on 26 May 1952, Mr. Sachs was not kept in prison as alleged but was released on bail once more on 27 May and was later tried and convicted and sentenced to imprisonment, but bailed pending appeal. On appeal to the Supreme Court the sentence was confirmed but was suspended for three years. Later he left the country.
74. 266. With regard to the alleged further developments in the case of Mr. Wolfsen raised by the complainant in the communication dated 7 September 1953, the Government provides supplementary observations in a letter dated 27 October 1953. The Government points out that no new principle is involved in these further developments, the notice addressed to Mr. Wolfsen calling upon him to withdraw from his union office and not to act in future as official or member of any union registered under the Industrial Conciliation Act being simply the consequence of the steps already taken against him under the Suppression of Communism Act. The Government then refers to what it regards as factual errors in the complainant's communication of 7 September 1953, stating that the delivery of bread on Wednesdays was not at the material time prohibited by collective agreement but that, such delivery having been prohibited in wartime by measures now long expired, the industry had continued to carry on the wartime practice. Bakers who did not deliver on Wednesdays were recently threatened by the action of independent hawkers (neither employers nor employees for the purpose of wage regulation) and both the employers and the Witwatersrand Baking Employees' Union (not Mr. Wolfsen's National Baking Industrial Union) co-operated with the Government in defeating these hawkers, a collective agreement to this end being eventually concluded. There was no employer-employee dispute, and Mr. Wolfsen's own union was not concerned in the affair and did not become a party to the collective agreement. The idea of Mr. Wolfsen's being banned from office at a critical time for the affairs of his union is, therefore, in the view of the Government, quite false.
75. 267. The Government concludes that the allegations are purely political and constitute an attempt to associate political propaganda with the question of trade union rights.

C. C. The Committee's conclusions

1. 268. With respect to the issue raised on the question of competence the Committee reaffirms the statement it made in a previous case relating to the Argentine Republic (Case No. 12) that it considers that it is not called upon to examine further the question of the competence of the I.L.O in matters of examination of allegations concerning infringements of freedom of association which might be committed in countries which are Members of the I.L.O but have not ratified the Convention concerning freedom of association and protection of the right to organise, in view of the fact that this problem has already been the subject of full discussion at the 33rd Session of the International Labour Conference in 1950, at which session the Conference decided to approve the decisions of the Governing Body and of the Economic and Social Council of the United Nations concerning the establishment of a procedure of fact-finding and conciliation in matters of freedom of association.
2. 269. The Government, while making express reservations as to the competence of the Committee, has nevertheless seen fit to present its observations on the substance of the complaint.
3. 270. The Government maintains that the complaint is purely political in character and " an attempt to associate political propaganda with the question of trade union rights ".
4. 271. The Committee, in its first report, formulated certain principles with respect to the examination of complaints to which the Government concerned ascribes a purely political character. In particular, following the general principle adopted by the Governing Body on the proposal of its Officers, the Committee 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.
5. 272. In the present case the complainant raises a number of issues relating to trade union rights-that the effect of the Act of 1950 as amended and of the naming of persons under its provisions as " Communists " is to prevent them from taking part in public life and, consequently, in trade union activities without the necessity to bring them before the courts and without giving them any right of appeal, that the persons mentioned were named as Communists with the intention of silencing the militant section of the trade union movement, that one official, Mr. Sachs, was held in prison on a purely technical charge, and that the attacks on Mr. Wolfsen, culminating in his being called upon to resign from his union over a year after being named a Communist and at the precise moment when his union was engaged in a serious dispute, constitute a deliberate attempt to interfere with the workers' rights by depriving them of their leader at a critical time, a violation of their right to elect their trade union representatives and a denial to Mr. Wolfsen of the right of any worker to join a union and take part in its activities, and that, in conclusion, the Government is contravening the Universal Declaration of Human Rights and Articles 2, 3 and 8 of Convention No. 87. In reply the Government states that the Act of 1950 relates to Communists as such, and only Communists, wherever they may be, that the persons concerned, regarding whose political opinions the complaining organisation says it has no knowledge beyond the fact that Mr. Sachs is not a Communist, are Communists (the evidence of this in Mr. Sachs's case being the statement of a judge who tried a civil case in which Mr. Sachs was involved in 1946 to the effect that a union publication edited by Mr. Sachs had contained articles extolling communism, Lenin, Stalin and the Soviet Union), that Mr. Sachs was not held in prison but was released on bail, and that the Government's contention that the Act is aimed at Communists as citizens and not at trade unions is borne out by the fact that the complainants can name only six out of a total of 3,000 South African trade union officials and office-bearers as having been affected by the measure and by the further fact that the Government endeavoured, when the Act was being prepared in the form of a Bill, to allay the fears expressed by the unions that the Act might be used to ban strikes and to declare some unions to be unlawful organisations by inserting appropriate amendments to the text to avoid these contingencies, although, the Government declares, it was not possible to ensure the right of trial by the courts to persons against whom the Act is applied by reason of their Communist affiliations prior to its coming into force. With reference in particular to Mr. Wolfsen the Government states that, when he was called upon, pursuant to the Act of 1950, to withdraw from trade union office and membership, this ban was not imposed, as alleged, at a critical time in a dispute concerning his union, but that, first, there was no employer-employee dispute and that, second, while certain matters required regulation by collective agreement, Mr. Wolfsen's union was not concerned and was not a party to the collective agreement which was eventually signed.
6. 273. The Committee recalls that, in certain previous cases, namely, those relating to Chile (Case No. 10), and India (Case No. 5), it expressed certain principles in connection with the application of measures which, though of a political nature and not intended to restrict trade union rights as such, might nevertheless affect the exercise of trade union rights.
7. 274. In the aforesaid case relating to Chile the Committee had to consider allegations concerning, among other things, the exclusion from trade unions under national legislation of persons deprived of the right to vote, by judgment of the ordinary courts, on the ground of their membership of a group seeking to institute a totalitarian or tyrannical system. Noting that in such cases, once charges were laid but prior to judgment, the trade union rights of the accused were suspended, the Committee expressed the opinion that it might appear unusual that a person merely charged with an offence, but not convicted thereof, might be deprived of the right to belong to a trade union. The Committee therefore recommended the Governing Body to suggest to the Government concerned that it might wish to re-examine this provision in its legislation in the light of the principles enunciated in Conventions Nos. 87 and 98. In the present case the Committee emphasises once again the importance it attaches to these 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 without previous authorisation.
8. 275. In the aforesaid case relating to India the Committee was dealing with allegations concerning, among other things, the preventive detention of persons under public security legislation intended to prevent acts of violence, and placed on record its view that measures of preventive detention may involve a serious interference with trade union activities which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period. In concluding its examination of that case the Committee emphasised 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, a principle which the Committee reaffirms in the present case.

The Committee's recommendations

1. 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.