Informe definitivo - Informe núm. 85, 1966

Caso núm. 321 (Sudáfrica) - Fecha de presentación de la queja:: 12-MAY-62 - Cerrado

59. Complaints against the Republic of South Africa were submitted to the I.L.O by the South African Congress of Trade Unions (S.A.C.T.U.) in communications dated 12 and 21 May, 9 June and 17 August 1962, and by the International Confederation of Free Trade Unions in communications dated 11 September and 21 December 1962. These complaints raised a number of allegations, relating respectively to the South African national budget, to the prohibition of strikes by African workers, to anti-union propaganda carried on by government departments, to intimidation of African workers, to racial segregation within the trade unions, to job reservation, to measures taken against trade union leaders and members, to the South African delegation at the 46th Session of the International Labour Conference, and to various aspects of the provisions and application of the General Law Amendment Act, 1962. Observations on these complaints were furnished by the Government of the Republic of South Africa in a communication dated 17 January 1963, but they were confined to allegations made with respect to the General Law Amendment Act.

1. 59. Complaints against the Republic of South Africa were submitted to the I.L.O by the South African Congress of Trade Unions (S.A.C.T.U.) in communications dated 12 and 21 May, 9 June and 17 August 1962, and by the International Confederation of Free Trade Unions in communications dated 11 September and 21 December 1962. These complaints raised a number of allegations, relating respectively to the South African national budget, to the prohibition of strikes by African workers, to anti-union propaganda carried on by government departments, to intimidation of African workers, to racial segregation within the trade unions, to job reservation, to measures taken against trade union leaders and members, to the South African delegation at the 46th Session of the International Labour Conference, and to various aspects of the provisions and application of the General Law Amendment Act, 1962. Observations on these complaints were furnished by the Government of the Republic of South Africa in a communication dated 17 January 1963, but they were confined to allegations made with respect to the General Law Amendment Act.
2. 60. The above complaints and observations were examined, as Case No. 300, by the Committee at its meeting in February 1963, when the Committee submitted an interim report to the Governing Body in paragraphs 153 to 234 of its 68th Report, which was approved by the Governing Body at its 154th Session (March 1963). On the recommendation of the Committee the Governing Body dismissed the allegations relating to the South African national budget and to the South African delegation at the 46th Session of the International Labour Conference. The allegations relating to intimidation of African workers, which had also been raised in more detailed terms in Case No. 278, were subsequently dismissed by the Governing Body when adopting the Committee's recommendations in that case. With regard to the allegations relating to segregation in trade unions and to job reservation, the Governing Body reaffirmed the conclusions it had adopted at earlier sessions with regard to similar allegations raised in previous cases relating to the then Union of South Africa. The allegations referred to in the present paragraph, therefore, are not dealt with further in this report.
3. 61. The Governing Body requested the Government to furnish further information on certain matters arising out of the allegations relating to the General Law Amendment Act, 1962. At the same time the Committee decided to request the Government to furnish its observations on the allegations relating to the prohibition of strikes by African workers, to anti-union propaganda carried on by government departments, and to measures taken against trade union leaders and members, which had not been mentioned in the Government's reply dated 17 January 1963. The Committee also asked I the Government to furnish observations or further information on certain points relating to the General Law Amendment Act.
4. 62. The above requests for observations and further information on these outstanding allegations were conveyed to the Government by a letter dated 14 March 1963. On 3 May 1963 the Government asked for a copy of one of the documents in the case, which was sent to it on 10 May 1963. Further requests were addressed to the Government by letters dated 13 June and 22 November 1963, 3 March, 28 April, 22 June and 24 November 1964, and 10 March and 3 June 1965; also, with these or other letters, copies were sent of further complaints addressed to the I.L.O by the South African Congress of Trade Unions on 19 February, 28 March, 13 and 22 May and 24 October 1963 and 11 and 30 January, 11 February and 26 April 1964, and by the World Federation of Trade Unions on 19 October 1963 and 13 February and 26 March 1964. No reply to any of these letters has been received.
5. 63. On 7 November 1962 the Food and Canning Workers' Union (Cape Town) submitted a complaint relating to alleged acts of interference with the union. The matters raised being quite distinct from those raised in Case No. 300, this complaint was dealt with as Case No. 311. The complaint was transmitted to the Government by a letter dated 15 November 1962. In further communications dated 5 February 1963 and 1 March 1963 the complainant also raised allegations relating to measures taken against trade union leaders and members of a similar nature to those raised in Case No. 300. These communications were forwarded to the Government on 13 February and 12 March 1963 respectively. The complaint was supported by the Trade Unions International of Workers of the Food, Tobacco and Beverage Industries and, Hotel, Café and Restaurant Workers (trade department of the World Federation of Trade Unions), of which the complainant in Cape Town is an affiliate, in a letter dated 17 November 1962, transmitted to the Government on 6 December 1962. Further requests to the Government to furnish its observations were made by letters dated 9 May, 12 June and 22 November 1963, 3 March, 25 June and 24 November 1964, and 9 March and 4 June 1965. No reply to any of these letters has been received from the Government.
6. 64. On 14 January 1963 the South African Congress of Trade Unions submitted a complaint relating to a list of organisations published by the Minister of Justice and the placing of restrictions on the scope of their officers and membership. This was a new allegation and the complaint was dealt with as Case No. 321. The complaint was transmitted to the Government, for its observations, on 29 January 1963. Subsequent complaints, on the same matter but dealing also with matters raised in Cases Nos. 300 and 311, were addressed to the I.L.O by the South African Congress of Trade Unions and the World Federation of Trade Unions on 11 February and 2 March 1963 respectively and transmitted to the Government on 12 March 1963. Further requests to the Government to furnish its observations were made in letters dated 9 May, 13 June and 22 November 1963, 3 March, 25 June and 24 November 1964, and 8 March and 4 June 1965. No reply to any of these letters has been received from the Government.
7. 65. In view of the fact that the subsequent documents of complaint in Cases Nos. 311 and 321 raise matters analogous to certain of the questions raised in Case No. 300, the Committee has considered it appropriate to examine the three cases together, in accordance with the procedure which it has followed in certain earlier cases in comparable circumstances.
8. 66. According to the procedure for the examination of complaints of alleged infringements of freedom of association it is the function of the Committee to make its examination of cases submitted to it, including the consideration of any observations made by the governments concerned, " if received within a reasonable period of time ". Moreover, in any case in which a government does not respond within a reasonable period to a request for more detailed information, the Committee " will report the circumstances to the Governing Body ". In Case No. 300 eight separate requests for further information and observations on new complaints have been addressed to the Government since 13 June 1963; it has been asked on 12 occasions since 15 November 1962 in Case No. 311, and on ten occasions since 29 January 1963 in Case No. 321, to furnish its observations on the complaints in those cases. The Committee has now to inform the Governing Body that no acknowledgment of any of these 30 communications has ever been received from the Government. In these circumstances the Committee has now examined the cases on their merits, taking account of the evidence submitted by the complainants together with such information as was furnished by the Government in its communication dated 17 January 1963.
9. 67. 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

• Allegations relating to the Provisions concerning Sabotage in the General Law Amendment Act, 1962
  68. 68 These allegations and the Government's observations thereon were examined by the Committee at its meeting in February 1963 and dealt with in detail in paragraphs 186 to 213 of its 68th Report. The matter is analysed more briefly below.
  69. 69 The South African Congress of Trade Unions (S.A.C.T.U.) in its communications dated 21 May and 9 June 1962, and the International Confederation of Free Trade Unions (I.C.F.T.U), in its communication dated 11 September 1962, alleged that the effect of section 21 of the General Law Amendment Act, which created the new offence of " sabotage " and made it punishable by death by hanging or a minimum sentence of five years' imprisonment, was that any white, Indian or coloured workers who went on strike contrary to the provisions of the Industrial Conciliation Act, 1956, and any African workers who went on strike under any circumstances, could be prosecuted for sabotage and sentenced to death.
  70. 70 In its communication dated 17 January 1963 the Government declared that acts which were lawful under the Industrial Conciliation Act, 1956, or the Railways and Harbours Service Act, 1960, were not rendered unlawful by the General Law Amendment Act, the provisions of which were " not aimed at interfering in any way with the exercise of bona fide trade union rights ".
  71. 71 The Committee, therefore, after examining the text of section 21 of the General Law Amendment Act, reached the following conclusion in paragraph 205 of its 68th Report:
• 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.
  72. 72 The Committee then proceeded to consider whether section 21 could be applied in the manner alleged, because, in addition to the act being " wrongful ", it had also to have one or more of the effects set forth in section 21 (1), in order to give rise to a prosecution for sabotage.
  73. 73 The Committee had before it the full text of subsections (1) and (2) of section 21 of the Act, reading 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 any 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.
  74. 74 The Committee observed that the complainants had made the following contentions. Firstly, they claimed that 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. Secondly, special attention was 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. Thirdly, it was contended, any person who painted a " higher wages " slogan on the wall of a building faced the death penalty for sabotage because he thereby " injured " or " damaged " property. Fourthly, it was alleged that if a trade union organiser went inside factory premises to enlist new members or address the workers without the consent of the factory owner, he could be charged with sabotage. Fifthly, it was claimed, if a participant in a big strike for higher wages was unable, in terms of section 21 (2), to show that his strike was not likely to " cause substantial financial loss " to the employer, he could be convicted of sabotage. Finally, the complainants alleged, if a trade union organiser, when organising workers to put demands to employers, referred to the employers in a hostile way and then failed to show that " objectively " his act was not likely to " cause ... feelings of hostility ", he could be convicted of sabotage.
  75. 75 The Committee therefore, in paragraph 234 (a) of its 68th Report, recommended 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 [the preceding paragraph]), whether it is a registered trade union or not and irrespective of the 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.
  76. 76 The Government has failed on eight occasions to reply to requests to furnish the above information.
  77. 77 Also at its meeting in February 1963 the Committee observed that section 21 (2) of the Act placed a serious burden of proof on the accused. It appeared that, if the State made out merely a prima facie case in terms of section 21 (1), the accused had to show that the offence, objectively regarded, was not calculated and was not committed with intent to produce " any " of the effects enumerated in section 21 (2), including " 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 was so broad as to appear to exclude any action which would be regarded as suggesting any change in existing social or economic conditions or any kind of public inconvenience.
  78. 78 The Governing Body therefore decided, on the recommendation of the Committee, to draw the attention of the Government to its view that the provisions of section 21 (2) of the General Law Amendment Act, 1962, were inconsistent with generally accepted principles relating to freedom of association.
  79. 79 Since that time there have been further developments. In a communication dated 13 February 1964 the World Federation of Trade Unions alleged that, because of their trade union activities, the following 11 officials of S.A.C.T.U had been accused of sabotage in the Pietermaritzburg court: Messrs. Billy Nair, Currie Ndhlovu, Solomon Mbanjwa, Bennett Nkosi, Alfred Duma, F. Mdhlalose, Riot Mkwanazi, M. O. Mkize, Joshua Zulu, David Ndawonde, Mathews Mayiwa, and three more in the Port Elizabeth court: Messrs. Caleb Nayikiso, V. Mini and L. Mancoke. Mr. Raymond Mhlaba, Secretary of the African Laundry and Dry Cleaning Workers' Union, and Mr. Elias Motsoaledi, Chairman of the Furniture, Bedding and Mattress Workers' Union and former Chairman of the Council of Non-European Trade Unions, were accused of treason and sabotage in the Pretoria court. With one exception, all these persons were non-Europeans.
  80. 80 In a communication dated 26 March 1964 W.F.T.U stated that Mr. V. Mini and two other S.A.C.T.U members, Mr. W. Khayingo and Mr. Z. Mkaba, had been sentenced to death, and that Mr. Billy Nair had been sentenced to 20 years' imprisonment.
  81. 81 The Government has failed to reply to six successive requests to furnish its observations on the last-mentioned complaint.
  82. 82 In these circumstances the Committee recommends the Governing Body:
      • (a) to deplore the fact that the Government of the Republic of South Africa has failed to furnish the further information requested of it, as indicated in paragraph 234 (a) of the 68th Report of the Committee cited in paragraph 75 above, on repeated occasions, or to reply to the several requests made to it to furnish observations on the grave cases of prosecution of trade unionists for sabotage-in three of which cases sentence of death was pronounced-referred to in paragraphs 79 and 80 above;
      • (b) to point out in these circumstances that the Government has failed to refute the allegations that trade union officers and members are liable to be prosecuted for sabotage and sentenced to death under the General Law Amendment Act, 1962, in the event of their having performed any of the trade union activities indicated in paragraph 74 above;
      • (c) to point out to the Government that, by virtue of the fact that strike action by African workers is always an unlawful act under the Native Labour (Settlement of Disputes) Act, 1953, and therefore wrongful under section 21 of the General Law Amendment Act, 1962, whereas strike action by other workers is not wrongful in this sense when it is not unlawful in terms of the Industrial Conciliation Act, 1956, or the Railways and Harbours Service Act, 1960, the provisions of section 21 are discriminatory against a particular race;
      • (d) to point out to the Government that, in the case of other races, these provisions are discriminatory against the officers and members of non-registered organisations;
      • (e) to reaffirm its previous statement of 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.
  83. Allegations relating to Measures Taken against Trade Union Leaders and Members
  83. 83 These allegations fall under two heads: firstly, those concerning measures taken pursuant to the Suppression of Communism Act, as amended and supplemented by the General Law Amendment Act, 1962, and secondly, measures taken under various other legal provisions not directly related to those two acts.
      • (a) Measures Taken pursuant to the Suppression of Communism Act and the General Law Amendment Act
  84. 84 In its communication dated 12 May 1962 S.A.C.T.U referred 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.
  85. 85 In particular Mr. Leon Levy (President of S.A.C.T.U.), Mr. Melville Fletcher (Branch Secretary of the Textile Workers' Union, Durban) and Mr. B. Nair (Secretary of the Metal Workers' Union, Durban), were 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.).
  86. 86 Mr. Harry Gwala (Secretary of the Pietermaritzburg Committee of S.A.C.T.U.) was alleged to have been prohibited from any participation in the affairs of S.A.C.T.U.
  87. 87 In its communication dated 21 May 1962 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 " alleged that the General Law Amendment Act, 1962, which had amended and supplemented the Suppression of Communism Act, could be used to force the resignation of union officials who had not even been "convicted of statutory communism "; if the Minister prohibited a person from attending gatherings or placed a person under house arrest because he was satisfied that his activities might further the objects of " statutory communism ", he could 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) was made by I.C.F.T.U in its communication dated 11 September 1962.
  88. 88 S.A.C.T.U alleged further that, in addition to the case of " statutory Communists ", any person whose activities were likely to further the objects of statutory communism could be placed under what amounted to house arrest. In its communication dated 11 September 1962 I.C.F.T.U referred 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 I.C.F.T.U gave the names of 12 trade union officers alleged to have been the subject of such measures. They included Messrs. Levy, Nair and Williams-Shope referred to earlier and nine other officers of S.A.C.T.U affiliates.
  89. 89 In its communication dated 21 May 1962 S.A.C.T.U stated that a person dealt with in any manner whatsoever pursuant to the Suppression of Communism Act could, 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, declared the I.C.F.T.U in its communication dated 11 September 1962, were embodied in sections 9 and 10 (a) of the 1962 Act.
  90. 90 Both complainants alleged that any breach of the various restrictions mentioned above was punishable by a minimum of three and a maximum of ten years' imprisonment.
  91. 91 They alleged also that any person in possession of a banned periodical was liable to up to three years' imprisonment.
  92. 92 In its communication dated 21 May 1962 S.A.C.T.U alleged that the 1962 Act gave the Minister increased powers to ban gatherings and to prohibit individuals from attending them. Under the 1962 Act it was 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 was the position, declared I.C.F.T.U in its communication dated 11 September 1962, in consequence of section 19 of the Act of 1962.
  93. 93 In its communication dated 17 August 1962 S.A.C.T.U set forth the situation at that time, by virtue of the 1962 Act, arising from the banning as statutory Communists of four of the leading officials of 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 could issue any statement on any matter affecting S.A.C.T.U members or workers generally; they could not address leaflets to their members; if the secretary of a local committee or an affiliated union received a letter from the National President or General Secretary of S.A.C.T.U he could not read it to his own executive committee; press organs of the unions could not reproduce even statements made before the enactment of the 1962 Act, such as extracts from the report of the General Secretary or the presidential address to the National Trade Union Conference.
  94. 94 When the Committee considered the foregoing allegations at its meeting in February 1963 it observed that, in its communication dated 17 January 1963, the Government had confined itself to stating in this connection 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, have been banned from attending meetings " being recorded or read to audiences at meetings or being published in newspapers supporting Communist ideologies. In these circumstances the Committee decided to request the Government to furnish more detailed observations on these allegations. This request has been conveyed to the Government on repeated occasions but no reply has been received.
  95. 95 Since that time there have been the following further developments.
  96. 96 In a communication dated 19 February 1963 S.A.C.T.U declared that, pursuant to the Suppression of Communism Act, Mr. Mosata, President of the African General Workers' Union, Kimberley, had been confined to Kimberley for five years and prohibited from attending gatherings or entering factories, mines or mine compounds. In its communications dated 28 March 1963 and 13 May 1963 S.A.C.T.U referred to similar bans served on Mr. L. Ndzanga, Secretary of the South African Railway and Harbours Non-European Workers' Union (Transvaal), Mr. G. Ngqunge, organiser of the Cape Province organisation of the same union, Mr. C. Ndlovu, Secretary of its Natal organisation-all of whom were also forced to resign from their union offices and Mrs. Moodley, organiser of the Food and Canning Workers' Union, East Rand.
  97. 97 In a communication dated 24 October 1963 S.A.C.T.U alleged that banning orders had been served on its Vice-President, Mrs. Viola Hashe, and its Assistant General Secretary, Mrs. Phyllis Altman, who had never even been " warned " or " listed " under the Suppression of Communism Act or its amendments, confining them to a given area for five years, prohibiting them for five years from attending any political, social or educational gathering or entering any educational premises, from entering any factory or area within which coloured, Indian or African persons resided and from preparing, purchasing, etc., any material for publication, and requiring them to report to the police once a week for five years. This part of the complaint was supported by W.F.T.U in a communication dated 19 October 1963.
  98. 98 S.A.C.T.U annexed to this complaint a list of 16 of its officers banned and removed from office since 1 February 1963.
  99. 99 S.A.C.T.U, in communications dated 30 January, 11 February and 24 April 1964, and W.F.T.U, in a communication dated 13 February 1964, gave the names of eight more officials of S.A.C.T.U and its affiliates subjected to banning orders and forced to give up trade union office.
  100. 100 According to a communication dated 14 January 1963 from S.A.C.T.U the Minister of Justice issued a proclamation in the Government Gazette, Extraordinary, No. 408, of 28 December 1962 containing a list of 36 organisations, including S.A.C.T.U but consisting mainly of organisations other than trade unions, and prohibiting from office or membership in such organisations 432 persons listed under the Suppression of Communism Act and, among others, any person, whether in such list or not, banned by the Minister from attending gatherings. The ban attaching to S.A.C.T.U extended to all its affiliates and subsidiaries and any body promoting the objects of S.A.C.T.U. The consequence was that six S.A.C.T.U officers, Messrs. Levy, Williams-Shope, Nair, Fletcher, Benine and Rammitloa were required to resign their union positions prior to 1 February 1963. The same matters were raised in its communication dated 2 March 1963 by the W.F.T.U, which added the names of two further persons similarly affected: Mrs. Frances Baard, Port Elizabeth Branch Secretary of the African Food and Canning Workers' Union, and Mr. L. Kukulela, Cape Province Secretary of the Hospital Workers' Union and the African Laundry Workers' Union. The case of these two further persons was also raised by S.A.C.T.U in a communication dated 11 February 1963.
  101. 101 In communications dated 5 February and 1 March 1963 the Food and Canning Workers' Union (Cape Town), after referring to the case of Mrs. Baard, gave the names of ten other officials of the Union removed from office in similar circumstances.
  102. 102 Another and even more serious aspect of the measures taken against trade unionists under the General Law Amendment Act was raised by S.A.C.T.U in its communications dated 13 and 22 May 1963. The complainant alleged that pursuant to section 17 of the General Law Amendment Act, which permits of detention for 90 days without trial, a period which can be renewed indefinitely, the following persons were held in solitary confinement, " for interrogation " and without any charge being brought and without being permitted to have access to their legal advisers or their families: Mr. L. Levy, former National President of S.A.C.T.U, Mr. S. Mlamini, National President of S.A.C.T.U, Mr. C. Mayekiso, Port Elizabeth Secretary of S.A.C.T.U, Mr. V. Mini, Secretary of the Metal Workers' Union (Port Elizabeth), Mr. L. Mancoko, Secretary of the General Workers' Union (Port Elizabeth), and Mr. E. Loza, Secretary of the Commercial and Distributive Workers' Union (Cape Town). In a further communication dated 24 October 1963 S.A.C.T.U gave the names of 35 S.A.C.T.U officials and members detained under the " 90 days clause " stating that the five persons other than Mr. Levy named above had by that time been held in solitary confinement for 150 days without ever being charged. Mr. Mlamini, according to a communication from W.F.T.U dated 13 February 1964, was eventually sentenced to nine months' imprisonment for distributing a leaflet calling a regional conference of workers and peasants in December 1962.
  103. 103 All these various documents of complaint were submitted to the Government for its observations. The Government has never acknowledged any of the repeated requests made to it to furnish observations on the complaints.
  104. 104 When the Committee, in Case No. 63, examined earlier cases of trade union leaders having been banned from public and trade union life by operation of the Suppression of Communism Act, 1950, it submitted to the Governing Body the conclusions contained in paragraphs 268 to 276 of its 12th Report. Paragraph 276 reads as follows:
• 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 ... 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.
  105. 105 The Committee reaffirmed the conclusions contained in paragraphs 268 to 276 of its 12th Report in subsequent cases relating to South Africa. Now that the Suppression of Communism Act has been amended by the General Law Amendment Act, 1962, for the specific purpose of strengthening the provisions of the earlier Act, these general conclusions still hold good and the Committee accordingly reaffirms them.
  106. 106 There remains, however, the question as to the manner in which the legal provisions are in fact applied to trade union leaders and members as such.
  107. 107 It is clear from the evidence in the present and earlier cases viewed cumulatively that under the Suppression of Communism Act a trade union leader can be removed from and disqualified for trade union office membership and/or confined to a particular area and prohibited from attending gatherings, not merely if it is proven that he is a Communist or if he is or has been a professed Communist or a member of a Communist party or organisation, but on the mere ground that the competent minister has " warned " him as a Communist, a proceeding entirely within the discretion of the Minister in the course of which the person concerned has no opportunity to defend himself and against which there is no right of appeal to the courts. Prior to the General Law Amendment Act, 1962, such a person was referred to as a " statutory Communist ". The General Law Amendment Act has considerably aggravated the position. The position now is that a trade unionist can be barred from union office and membership, made to report regularly to the police, confined to a given area, barred from attending gatherings or communicating with his trade union colleagues and kept in solitary confinement for periods of 90 days, which can be renewed indefinitely, entirely at the discretion of the Minister-all this even without having been designated a " statutory Communist-because in the view of the Minister his activities might further the interests of statutory communism. No recourse to the courts in any form exists. All these points have been alleged and substantiated in detail by the different complainants and the Government has submitted no observations at all in refutation.
  108. 108 Certain principles enunciated on many occasions by the Committee and the Governing Body are brought into question by these legal provisions.
  109. 109 In a number of cases the Committee has observed that the public authorities should refrain from any interference which would restrict the right of occupational organisations to elect their representatives in full freedom and to organise their administration and activities. The provisions of the Suppression of Communism Act and the General Law Amendment Act which permit the Minister in his discretion to remove trade union leaders from trade union office and to disqualify them for such office in the future are incompatible with this generally accepted principle.
  110. 110 The Committee has also pointed out in earlier cases that in all cases in which trade union leaders are preventively detained these measures may involve a serious interference with the exercise of trade union rights, and has emphasised the right of all detained persons to receive a fair trial at the earliest possible moment. The Committee has also expressed the view that the restriction of a person's movements to a limited area accompanied by a prohibition of entry into the area in which his trade union operates and in which he normally carries on his trade union functions is also inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions, and should also be accompanied by adequate judicial safeguards applied within a reasonable period and, especially, by observance of the right of those concerned to receive a fair trial at the earliest possible moment. The Committee considers that the provisions of the Suppression of Communism Act and the General Law Amendment Act which permit the Minister in his discretion to confine trade union leaders to a particular area, to prohibit them from entering the areas in which they normally carry on their trade union activities, and to hold them in solitary confinement for a 90 days' period which can be renewed, without trial or even without charges being laid, are incompatible with the right to exercise trade union activities and functions and with the principle of fair trial enunciated above.
  111. 111 The Committee therefore recommends the Governing Body:
       • (a) to draw the attention of the Government to the importance which the Governing Body attaches to the principle that the public authorities should refrain from any interference which would restrict the right of occupational organisations to elect their representatives in full freedom and to organise their administration and activities;
       • (b) to express the view that the provisions of the Suppression of Communism Act and the General Law Amendment Act which permit the Minister in his discretion to remove trade union leaders from trade union office and to disqualify them for such office in the future are incompatible with this generally accepted principle and have been consistently applied in practice in a manner incompatible with the said principle;
       • (c) to draw the attention of the Government to the fact that in all cases in which trade union leaders are preventively detained these measures may involve a serious interference with the exercise of trade union rights and to the importance which the Governing Body attaches to the right of all detained persons to receive a fair trial at the earliest possible moment;
       • (d) to express its view that the restriction of a person's movements to a limited area accompanied by a prohibition of entry into the area in which his trade union operates and in which he normally carries on his trade union functions is also inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions, and should also be accompanied by adequate judicial safeguards applied within a reasonable period and, especially, by observance of the right of those concerned to receive a fair trial at the earliest possible moment;
       • (e) to draw the attention of the Government to its view that the provisions of the Suppression of Communism Act and the General Law Amendment Act which permit the Minister in his discretion to confine trade union leaders to a particular area, to prohibit them from entering the areas in which they normally carry on their trade union activities and to hold them in solitary confinement for a 90 days' period which can be renewed, without trial and even without charges being laid, are incompatible with the right to exercise trade union activities and functions and with the principle of fair trial enunciated above and have consistently been applied in a manner incompatible with the said right and the said principle.
       • (b) Other Measures Taker against Trade Unionists
  112. 112 In its communication dated 12 May 1962 S.A.C.T.U made the following allegations. Mr. U. Maleka (Secretary of the Furniture, Mattress and Bedding Workers' Union) and Mr. R. Takalo (Secretary of the Metal Workers' Union, Transvaal) were arrested while helping to distribute leaflets to African mineworkers and were convicted of an offence under the Trespass Act, 1959. Mr. B. Ndavemavota (organiser for the National Organising Committee for Mineworkers), also arrested when distributing leaflets, was sentenced to three months' imprisonment under the Urban Areas Act. Mr. R. Bapela (member of the Clothing Workers' Union) was also arrested when distributing leaflets. Mr. M. Lekhoto (organiser of the Transvaal General Workers' Union), Mr. J. Mebena (member of the Shop and Office Workers' Union) and Mr. L. Ndzanga (Secretary of the South African Railways and Harbour Workers' Union) were arrested in connection with a placard demonstration. Mr. C. Nixishe (organiser of the South African Railways and Harbour Workers' Union) was 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 were stated to be awaiting trial on a charge of entering a reserve without permission.
  113. 113 While the Government has furnished no observations on these allegations the complainants have not indicated the nature of the leaflets and placards in connection with the distribution or demonstration of which the persons concerned were arrested. However, certain of the laws they were charged with violating are statutes which in themselves restrict the exercise of trade union rights on racial grounds, so that the Committee does not consider that it would be justified in recommending the dismissal of the allegations out of hand.
  114. 114 In these circumstances the Committee recommends the Governing Body to note that the evidence before it does not enable it to reach firm conclusions on these particular allegations.
• Allegations relating to the Suppression of and Restrictions on Newspapers pursuant to the Suppression of Communise Act and the General Law Amendment Act and the Publications and Entertainments Bill
  115. 115 It was alleged by 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, had banned three newspapers-The Guardian, Advance and Clarion-but that, until 1962, a newspaper thus banned could reappear under an assumed name. Under the General Law Amendment Act, 1962, however, a newspaper banned under the 1950 Act would 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 would effectively prevent any workers' newspaper from reappearing once it was banned. The complainants also alleged that the Publications and Entertainments Bill conferred 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 expressed hostility to employers or instigated strike action. So far as the General Law Amendment Act is concerned I.C.F.T.U made the same allegations in its communication dated 11 September 1962.
  116. 116 In its communication dated 17 January 1963 the Government stated 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 had been closed by the 1962 Act.
  117. 117 Examining these allegations at its meeting in February 1963, the Committee observed that in a number of previous cases it had expressed the view that the right to express opinions through the press is clearly one of the essential elements of trade union rights. It appeared to the Committee that, having regard to that principle, it might place a very considerable hardship on any small trade union if it were required to deposit so large a sum as £10,000 before it could issue a newspaper. The Committee therefore requested the Government to state whether all trade unions were 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.
  118. 118 Despite repeated requests, the Government has furnished no further observations and has not, therefore, refuted the complainants' contention that all newspapers must furnish a £10,000 bond under the Act of 1962, this being an intolerable burden for small trade unions. On the other hand, the complainants have not submitted later information to show whether the clauses of the Publications and Entertainments Bill complained of were enacted in the terms alleged.
  119. 119 The Committee, therefore, recommends the Governing Body:
       • (a) to reaffirm its view that the right to express opinions through the press is clearly one of the essential elements of trade union rights;
       • (b) to express the view that if, as alleged, trade union newspapers are required to furnish a £10,000 bond, this would constitute, especially in the case of smaller unions, such an unreasonable condition for their existence as to be incompatible with the exercise of the foregoing right;
       • (c) to express further its view that, if the provisions of the Publications and Entertainments Bill concerning " undesirable literature " have been or were to be enacted in the terms alleged, this would permit of such abusive interpretation in the discretion of the authorities as to be incompatible with the right of trade unions to express opinions through the press.
  120. Allegations relating to the Banning of Organisations under the General Law Amendment Act
  120. 120 In their communications dated 21 May and 11 September 1962 S.A.C.T.U and I.C.F.T.U respectively alleged that the General Law Amendment Act widened further the powers of state presidents to ban organisations, permitting them to ban " any organisation that carried on or has been established for the purpose of carrying on directly or indirectly any of the activities of an unlawful organisation ". It was 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 being a discretionary matter, the Court could not overrule the state president in the absence of proof that he acted in bad faith. In the view of I.C.F.T.U these provisions infringed the generally accepted principle that workers' organisations shall not be dissolved or suspended by administrative authority.
  121. 121 In its communication dated 17 January 1963 the Government referred to these allegations only indirectly, when it stated 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.
  122. 122 When it examined this aspect of the case at its meeting in February 1963 the Committee, observing the specific nature of the allegations made, recalled the principle laid down in the procedure for the examination of complaints of alleged infringements of trade union rights that, where precise allegations are made, the Committee cannot regard as satisfactory replies from governments which are confined to generalities. The Committee therefore requested the Government to furnish more detailed observations on these allegations. No reply has been received from the Government to the repeated requests made to it to furnish such observations.
  123. 123 It appears from the unrefuted evidence submitted by the complainants that the General Law Amendment Act permits the competent authorities in their discretion to ban any organisation which carries on any normally legal trade union activity, such as campaigning for a minimum wage, if that activity has at any time figured in the programme of any trade union or other organisation which has been declared to be unlawful.
  124. 124 The Committee therefore recommends the Governing Body to draw the attention of the Government to its view that the provisions in question are incompatible with the generally accepted principle that the public authorities should refrain from any interference which would restrict the right of workers' organisations to organise their activities and to formulate their programmes or impede the lawful exercise of this right.
• Allegations relating to the Provisions of the General Law Amendment Act concerning the Offence of Illegally Leaving the National Territory
  125. 125 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. In its communication dated 21 May 1962 S.A.C.T.U alleged that the General Law Amendment Act 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.
  126. 126 When it examined this question at its meeting in February 1963 the Committee observed that, while the Government did not comment on the matter, the complainants had made 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. The Committee therefore recommended the Governing Body to decide that these allegations did not call for further examination.
  127. 127 In a communication dated 28 March 1963 S.A.C.T.U alleged that Mr. John Gaitsewe, its Acting General Secretary, had been sentenced to two years' imprisonment, on 25 March 1963, for leaving the country without travel documents to attend a trade union conference overseas. In his speech in the court, Mr. Gaitsewe said that he had been forced to leave the country in this way because the Government would not grant passports to any Africans who did not support the Government's cause. The same allegations were made by W.F.T.U in a communication dated 2 March 1963.
  128. 128 The Government has not furnished any observations on the case of Mr. Gaitsewe and, more particularly, has not refuted the allegation that Africans who do not support the Government's cause are not granted passports permitting them to leave the country to attend trade union conferences abroad.
  129. 129 The Committee has emphasised in several cases in the past that national trade union organisations should have the right to affiliate with international organisations of workers and has affirmed that this right normally carries with it the right of representatives of national organisations to maintain contact with the international organisations with which they are affiliated and to take part in the work of those organisations.
  130. 130 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it attaches to the principle enunciated in the preceding paragraph.
• Allegations relating to the Prohibition of Strikes by African Workers
  131. 131 In its communication dated 12 May 1962 S.A.C.T.U referred to the penalties of fines and imprisonment prescribed by the Native Labour (Settlement of Disputes) Act, 1953, and the General Law 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 was alleged, as a result of which some 40,000 African workers were prosecuted, many of them having been fined or imprisoned.
  132. 132 In August 1961, it was alleged, 80 blind African workers at the Constance Caworth Institute for the Blind (Natal), earning only £10 a 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.
  133. 133 Also in August 1961, it was 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 had held a lunch-time demonstration and exhibited placards demanding union recognition and a wage of £1 a day; leave to appeal was refused.
  134. 134 The complainant stated that workers employed by Klipfontein Organic Products (Transvaal) were recruited through the (Government) Bantu Administration Department and lived in compounds on a poverty wage of £7 per month, plus food and accommodation; their only chance to have grievances redressed was to apply to the Bantu Native Commissioner, who, it was alleged, whenever a complaint was addressed to him saw that the workers were dismissed and refused permits to seek work elsewhere. In desperation, it was 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 was alleged, they were referred to the same Commissioner against whom the workers had complained.
  135. 135 S.A.C.T.U alleged that 193 African workers employed by the Bay Transport Company, Port Elizabeth, were each fined £7 10s for striking.
  136. 136 At its meeting in February 1963 the Committee decided to request the Government to furnish its observations on these allegations. The Government has not replied to repeated requests to furnish these observations.
  137. 137 The Committee has always applied the principle that allegations respecting the right to strike are not outside its competence in so far as they affect the exercise of trade union rights." It has also pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised.
  138. 138 When the Committee examined the question of the right to strike of African workers in an earlier case relating to the then Union of South Africa, it observed that, while temporary restrictions were placed on the right to strike of employees covered by the Industrial Conciliation Act, and a complete prohibition was placed on strikes by such employees engaged in certain essential services, section 18 (1) of the Native Labour (Settlement of Disputes) Act, 1953, placed a total prohibition on strikes by African workers, irrespective of the nature of their occupation. On that occasion the Committee expressed the view that, where the right to strike was accorded to workers and their organisations, there should be no racial discrimination with respect to those to whom it was accorded. Accordingly, in that case, the Committee recommended the Governing Body to note that in South Africa the existence of racial discrimination in respect of trade union rights was further confirmed by the fact that the nature and extent of the limitations placed on the right to strike differed widely as between employees covered by the Industrial Conciliation Act and African workers.
  139. 139 In these circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government to the fact that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised;
       • (b) to express its view that, where the right to strike is accorded to workers and their organisations, there should be no racial discrimination with respect to those to whom it is accorded;
       • (c) to note once again that in the Republic of South Africa the existence of racial discrimination in respect of trade union rights is further confirmed by the fact that the nature and extent of the limitations placed on the right to strike differ widely as between employees covered by the Industrial Conciliation Act, 1956, and African workers.
  140. Allegations relating to Anti-Union Propaganda Carried On by Government Departments
  140. 140 In its communication dated 12 May 1962 S.A.C.T.U alleged that anti-union propaganda was carried on among its 99,800 African employees by the South African Railways and Harbours Administration, which was a government department.
  141. 141 The complainant furnished 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 was 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.
  142. 142 After referring to these organisations as " illegal so-called unions ", the extract stated as follows:
• 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.
  143. 143 In the view of the complainants these statements defamed officials of the South African Railways and Harbour Workers' Union (of African railway workers), stated wrongly that the union was illegal and confirmed the implacable opposition of the Government to free trade union organisation.
  144. 144 At its meeting in February 1963 the Committee decided to request the Government to furnish its observations on these allegations. It has failed to reply to repeated requests to do so.
  145. 145 It appears clear from the text of an official publication cited by the complainants that the South African Railways and Harbours Administration exercised pressure on non-white railway workers to induce them not to join trade unions. The references to the fact that the unions seeking to organise the workers in question do not enjoy departmental recognition and are not allowed to negotiate and the statement that " the workers' representatives and the regional committees (appointed by the Administration) are the official medium for the purpose of making representations to the Department " and that these are, in fact, " the only medium ", are particularly significant.
  146. 146 In these circumstances the Committee recommends the Governing Body:
       • (a) to emphasise the importance which it attaches to the generally accepted principle that workers without distinction whatsoever should have the right to establish and join organisations of their own choosing without previous authorisation;
       • (b) to draw the attention of the Government to its view that the extract from the March 1962 issue of Umgondiso cited by the complainants and set forth in paragraphs 141 and 142 above constituted an infringement of this principle on the part of the South African Railways and Harbours Administration.
  147. Allegations relating to Police Interference with the Trade Union Activities of the Johannesburg Branch Secretary of the National Union of Laundering, Cleaning and Dyeing Workers
  147. 147 In a communication dated 11 January 1964 S.A.C.T.U complained of the treatment accorded by officers of the Special Branch to Mr. E. Davoren, Johannesburg Branch Secretary of the National Union of Laundering, Cleaning and Dyeing Workers.
  148. 148 According to the copy of an affidavit by Mr. Davoren forwarded by the complainant, he was, in December 1963, engaged in assisting in negotiations regarding a new wage agreement. In this connection it was his duty to keep the workers informed of the course of the negotiations and to consult them on their case. Accordingly, he addressed a meeting of workers at Lorentzville on 19 December 1963 and distributed pamphlets setting out their case for a minimum fl a day. After leaving the meeting he was intercepted by officers of the Special Branch, who took him to headquarters. There, fearing to share the fate of 35 other union officials detained without charge, he asked to use a telephone in order to tell a trade union colleague where he was, but the officer snatched the instrument from his hand. He alleged that the officer lost all self-control and threatened to " tear him apart ". He was then made to sit in the centre of a room occupied by several officers. The senior officer present produced a copy of the pamphlet he had distributed and told him that he was sure to get 90 days and that " it was the Communist cell in S.A.C.T.U which started the campaign for £1 per day ". He was then questioned as to his earnings in South Africa and concerning his work and earnings in England. In the end, he alleged, after insulting him repeatedly, they allowed him to leave.
  149. 149 In a communication dated 11 February 1964 S.A.C.T.U alleged that Mr. Davoren had been detained and was to be deported to England.
  150. 150 In its communication dated 13 February 1964 W.F.T.U formulated similar complaints regarding Mr. Davoren.
  151. 151 In a communication dated 26 April 1964 S.A.C.T.U stated that Mr. Davoren had been deported in March 1964.
  152. 152 In a number of cases the Committee has emphasised the importance that it has always attached to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. The Committee has stated further that any such interference, by the same token, would appear to infringe the generally accepted principle that workers' organisations should have the right, without such interference, to organise their activities and to formulate their programmes
  153. 153 It appears from the detailed evidence furnished by the complainants, to which the Government has made no reply, that Mr. E. Davoren, Johannesburg Branch Secretary of the National Union of Laundering, Cleaning and Dyeing Workers, was engaged in lawful wage negotiations on behalf of his members in December 1962, when, by reason of the fact that he was engaged in such negotiations, he was questioned, his actions were criticised and he was threatened with 90 days' detention by officers of the Special Branch.
  154. 154 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it attaches to the principles enunciated in paragraph 152 above and to its view that the action taken by the police with regard to Mr. Davoren on 19 December 1962 constituted an infringement of the said principles.
• Allegations relating to Interference in the Activities of the Food and Canning Workers' Union (Cape Town)
  155. 155 In its communications dated 7 November 1962 and 5 February and 1 March 1963 the Food and Canning Workers' Union (Cape Town) alleged various acts of interference in its activities by the authorities.
  156. 156 The complainants stated that their union was registered under the Industrial Conciliation Act and had 8,600 members and 27 branches.
  157. 157 On 10 May 1962 the General Secretary and four other representatives of the union visited Mossel Bay. These five officials were alleged to have been arrested at 1.30 p.m. and detained for four hours. The complainants stated that the five were arrested in their car which was on a property next to that of the undertaking they intended to visit; despite this, it was alleged, the police urged the employers to lay a charge of trespassing against them.
  158. 158 When five union officials, including its President, Vice-President and General Secretary, visited the fishing village of Stompneus Bay on 17 June 1962, it was alleged, they were questioned by the police, who also asked the employers not to allow the union to hold meetings.
  159. 159 Four union officials, including the President, Vice-President and General Secretary, visited East London on 4 July 1962. The complainants stated that they were stopped by the police and taken to the charge-house to be questioned by Mr. Huttingh of the Special Branch, where they were kept for three hours, after which they were followed everywhere by the Special Branch. Mr. Huttingh, it was alleged, told the union officials that when they went to East London in future " he should be approached first so that he could work together with them " and added, when they refused this, " that he would break down everything they built up in East London ".
  160. 160 It was alleged that the Special Branch attended factory meetings of the union's Paarl Branch. On 5 July 1962 six Special Branch men attended a meeting of the East London branch and refused to leave. Between 15 and 27 July 1962 branch officials and members received visits from the Special Branch; at the same time the police put pressure on employers who had thus far co-operated with the union and allowed it to hold meetings on factory premises. On 18 February 1963 union officials visited Mossel Bay; the union lunch-hour meeting on factory premises was attended by the police; on 19 February the firm concerned would not permit a further meeting. A members' meeting was held at the Mossel Bay Roman Catholic Church Hall but the priest in charge was visited by the police and then asked the participants to leave. A lunch-hour meeting organised by the Montagu branch of the union on 21 February 1963 was attended by members of the Special Branch.
  161. 161 The Government has failed to reply to repeated requests made to it to furnish its observations on these allegations.
  162. 162 The Committee has consistently drawn attention to the importance it has always attached to the fact that freedom from government interference in the holding of proceedings of trade union meetings constitutes an essential element of trade union rights, as well as to the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
  163. 163 It appears from the evidence furnished by the complainants that on different occasions at Paarl, Mossel Bay and Montagu, as indicated in paragraph 160 above, the police attended trade union meetings organised by the union. The Committee, in the absence of any explanations by the Government, can only conclude that these facts constitute an infringement of the principle enunciated in the preceding paragraph.
  164. 164 The complainants have also furnished evidence to the effect that officers of their union, when visiting Mossel Bay, East London and Paarl, were questioned or detained and threatened by the police in respect of their trade union activities. In the view of the Committee these acts constituted an infringement of the right of a workers' organisation to organise its activities without interference on the part of the public authorities.
  165. 165 The Committee therefore recommends the Governing Body:
       • (a) to draw the attention of the Government to the importance which it has always attached to the fact that freedom from government interference in the holding or proceedings of trade union meetings constitutes an essential element of trade union rights, to the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and to the principle that workers' organisations should have the right to organise their activities without interference on the part of the public authorities;
       • (b) to express its view that the various instances of police interference cited by the complainants, as indicated in paragraphs 157 to 160 above, constituted infringements of the principles and rights enunciated in the preceding subparagraph.

The Committee's recommendations

1. 166. In all the circumstances the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to the provisions concerning sabotage in the General Law Amendment Act, 1962:
   • (i) to deplore the fact that the Government of the Republic of South Africa has failed to furnish the further information requested of it, as indicated in paragraph 234 (a) of the 68th Report of the Committee cited in paragraph 75 above, on repeated occasions, or to reply to the several requests made to it to furnish observations on the grave cases of prosecution of trade unionists for sabotage - in three of which cases sentence of death was pronounced -referred to in paragraphs 79 and 80 above;
   • (ii) to point out in these circumstances that the Government has failed to refute the allegations that trade union officers and members are liable to be prosecuted for sabotage and sentenced to death under the General Law Amendment Act, 1962, in the event of their having performed any of the trade union activities indicated in paragraph 74 above;
   • (iii) to point out to the Government that, by virtue of the fact that strike action by African workers is always unlawful under the Native Labour (Settlement of Disputes) Act, 1953, and therefore wrongful under section 21 of the General Law Amendment Act, 1962, whereas strike action by other workers is not wrongful in this sense when it is not unlawful in terms of the Industrial Conciliation Act, 1956, or the Railways and Harbours Service Act, 1960, the provisions of section 21 are discriminatory against a particular race;
   • (iv) to point out to the Government that, in the case of other races, these provisions are discriminatory against the officers and members of non-registered organisations;
   • (v) to reaffirm its previous statement of 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) with regard to the allegations relating to measures taken against trade union leaders and members under the Suppression of Communism Act and the General Law Amendment Act:
   • (i) to draw the attention of the Government to the importance which the Governing Body attaches to the principle that the public authorities should refrain from any interference which would restrict the right of occupational organisations to elect their representatives in full freedom and to organise their administration and activities;
   • (ii) to express the view that the provisions of the Suppression of Communism Act and the General Law Amendment Act which permit the Minister in his discretion to remove trade union leaders from trade union office and to disqualify them for such office in the future are incompatible with this generally accepted principle and have been consistently applied in practice in a manner incompatible with the said principle;
   • (iii) to draw the attention of the Government to the fact that in all cases in which trade union leaders are preventively detained these measures may involve a serious interference with the exercise of trade union rights and to the importance which the Governing Body attaches to the right of all detained persons to receive a fair trial at the earliest possible moment;
   • (iv) to express its view that the restriction of a person's movements to a limited area accompanied by a prohibition of entry into the area in which his trade union operates and in which he normally carries on his trade union functions is also inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions, and should also be accompanied by adequate judicial safeguards applied within a reasonable period and, especially, by observance of the right of those concerned to receive a fair trial at the earliest possible moment;
   • (v) to draw the attention of the Government to its view that the provisions of the Suppression of Communism Act and the General Law Amendment Act which permit the Minister in his discretion to confine trade union leaders to a particular area, to prohibit them from entering the areas in which they normally carry on their trade union activities and to hold them in solitary confinement for a 90 days' period which can be renewed, without trial and even without charges being laid, are incompatible with the right to exercise trade union activities and functions and with the principle of fair trial enunciated above and have consistently been applied in a manner incompatible with the said right and the said principle;
   • (c) with regard to the allegations relating to the suppression of and restrictions on newspapers pursuant to the Suppression of Communism Act, the General Law Amendment Act and the Publications and Entertainments Bill:
   • (i) to reaffirm its view that the right to express opinions through the press is clearly one of the essential elements of trade union rights;
   • (ii) to express the view that if, as alleged, trade union newspapers are required to furnish a £10,000 bond, this would constitute, especially in the case of smaller unions, such an unreasonable condition for their existence as to be incompatible with the exercise of the foregoing right;
   • (iii) to express further its view that, if the provisions of the Publications and Entertainments Bill concerning " undesirable literature " have been or were to be enacted in the terms alleged, this would permit of such abusive interpretation in the discretion of the authorities as to be incompatible with the right of trade unions to express opinions through the press;
   • (d) with regard to the allegations relating to the banning of organisations under the General Law Amendment Act, to draw the attention of the Government to its view that the provisions in question, which appear to permit the competent authorities to ban any organisation which carries on any normally legal trade union activity if that activity has at any time figured in the programme of any trade union or other organisation which has been declared to be unlawful, are incompatible with the generally accepted principle that the public authorities should refrain from any interference which would restrict the right of workers' organisations to organise their activities and to formulate their programmes or impede the lawful exercise of this right;
   • (e) with regard to the conviction of Mr. Gaitsewe, Acting General Secretary of the South African Congress of Trade Unions, on a charge of illegally leaving the country contrary to the provisions of the Departure from the Union Regulation Act, to draw the attention of the Government to the importance which the Governing Body attaches to the right of national trade union organisations to affiliate with international organisations of workers and to its view that this right normally carries with it the right of representatives of national organisations to maintain contact with the international organisations with which they are affiliated and to take part in the work of those organisations;
   • (f) with regard to the allegations relating to the prohibition of strikes by African workers:
   • (i) to draw the attention of the Government to the fact that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised;
   • (ii) to express its view that, where the right to strike is accorded to workers and their organisations, there should be no racial discrimination with respect to those to whom it is accorded;
   • (iii) to note once again that in the Republic of South Africa the existence of racial discrimination in respect of trade union rights is further confirmed by the fact that the nature and extent of the limitations placed on the right to strike differ widely as between employees covered by the Industrial Conciliation Act, 1956, and African workers;
   • (g) with regard to the allegations relating to anti-union propaganda carried on by government departments:
   • (i) to emphasise the importance which it attaches to the generally accepted principle that workers without distinction whatsoever should have the right to establish and join organisations of their own choosing without previous authorisation;
   • (ii) to draw the attention of the Government to its view that the extract from the March 1962 issue of Umgondiso cited by the complainants and set forth in paragraphs 141 and 142 above constituted an infringement of this principle on the part of the South African Railways and Harbours Administration;
   • (h) with regard to the allegations relating to police interference with the trade union activities of Mr. E. Davoren, Johannesburg Branch Secretary of the National Union of Laundering, Cleaning and Dyeing Workers:
   • (i) to emphasise the importance which it has always attached to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and to the principle that trade, unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
   • (ii) to express its view that the action taken by the police with regard to Mr. Davoren on 19 December 1962 constituted an infringement of the principle enunciated in the preceding clause and also of the principle that workers' organisations should have the right, without interference on the part of the public authorities, to organise their activities and formulate their programmes;
   • (i) to note that, for the reasons indicated in paragraph 113 above, the evidence before the Committee does not enable it to reach firm conclusions on the allegations relating to measures taken against trade unionists under the Trespass Act and Urban Area Act and legislation restricting entry into reserves;
   • (j) with regard to the allegations relating to interference in the activities of the Food and Canning Workers' Union (Cape Town);
   • (i) to draw the attention of the Government to the importance which it has always attached to the fact that freedom from government interference in the holding or proceedings of trade union meetings constitutes an essential element of trade union rights, to the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and to the principle that workers' organisations should have the right to organise their activities without interference on the part of the public authorities;
   • (ii) to express its view that the various instances of police interference cited by the complainants, as indicated in paragraphs 157 to 160 above, constituted infringements of the principles and rights enunciated in the preceding subparagraph.