Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - South Africa (Ratification: 1996)

Previous comments

Trade union rights and civil liberties. Allegations of violent repression of strike actions and arrests of striking workers. The Committee notes with deep regret that the Government provides no information on the findings of the investigation into the arrest of 100 community health striking workers in July 2014 and the killing of a union steward of the Association of Mineworkers and Construction Union (AMCU) in January 2014. The Committee recalls the requirement of independent judicial investigations to be conducted rapidly in the case of allegations of violations of the rights and principles guaranteed by the Convention with a view to establishing the facts, violations and determining responsibilities, punishing the perpetrators and instigators and preventing the recurrence of such acts. In this regard, the Committee recalls that excessive delays in the procedures set in motion in response to such allegations create, in practice, a situation of impunity, which reinforces the existing climate of violence and insecurity (see the 2012 General Survey on the fundamental Conventions, paragraph 60). The Committee once again firmly urges the Government to take all necessary measures with a view to expediting the process of investigation and requests the Government to inform it of the findings.

In its previous observation, the Committee had requested the Government to provide detailed comments on the serious allegations of violations of trade union rights and civil liberties contained in the 2022 observations of the International Trade Union Confederation (ITUC). The Committee recalls that the ITUC alleged that strike actions in South Africa were often met with intimidation and anti-union dismissals, violence and arrests and referred in this respect to: (i) the assassination of a campaigner and organizer for the National Union of Metalworkers of South Africa (NUMSA) in August 2021; (ii) the killing of a member of the NUMSA in October 2021, during a protest march for a salary increase in the metal and engineering sector; (iii) the NUMSA allegation that some of its members have been attacked by the police and private security companies, and in some instances, have even been shot at, causing injuries; (iv) the alleged intimidation of South African Commercial Catering and Allied Workers Union (SACCAWU) members by employers during protests, in particular through the use of legal notices, unpaid leaves to self-isolate for allegedly violating COVID-19 safety rules, and text messages telling workers they had been replaced; (v) the alleged violence, such as threats, the use of rubber bullets and petrol bomb attacks against striking dairy workers, members of the General Industries Workers Union of South Africa (GIWUSA); and (vi) the alleged suspension of four members of the National Emancipated and Allied Workers Union of South Africa (NEAWUSA) following a month-long strike. The Committee notes the Government’s indication that freedom of association is a fundamental right enshrined in the Constitution of South Africa, and that the laws support the right to strike when industrial action is peaceful. The Government adds that the laws do not support the use of violence and destruction of property; when the law is violated and the intervention of police is solicited, their intervention must be within the ambit of the law. The Government further indicates that in instances where the police or private security agents violate the law, the trade unions or aggrieved individuals have the right to approach the courts. The Government emphasizes that all industrial actions are required to operate within the parameters of the law for them to be protected. The Government indicates that it is important that the allegations and complaints against the Government are supported by evidence. While noting the general explanation provided by the Government, the Committee notes with deep regret that there appears to be no investigation conducted into the ITUC serious allegations involving a number of national trade unions. The Committee emphasizes the importance of properly investigating all alleged instances of violence against trade union members and recalls that the authorities, when informed of such matters, should systematically request information from the unions involved and carry out an immediate investigation to determine who is responsible and punish the guilty parties. The Committee urges the Government to conduct a thorough investigation into the alleged instances of violation of civil liberties and trade union rights and requests the Government to provide information on the outcome.

The Committee further notes with regret that the Government did not provide detailed information on the implementation of the recommendations of the Judicial Commission of Inquiry into the events at Marikana Mine in Rustenburg regarding the violent death of 34 workers during a strike action in August 2012. The Committee reiterates its previous request and expects the Government to transmit full particulars with its next report.

The Committee takes note of the Accord on Collective Bargaining and Industrial Action, the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing, and Picketing Regulations and the Government’s indication that the Accord is the product of social dialogue and consensus between the State, Organized Business, Organized Labour and Community Constituency under the auspices of the National Economic Development and Labour Council (NEDLAC).

The Committee recalls that in its previous comments it had noted the Government’s indication that the social partners have deliberated under the auspices of the NEDLAC during 2015 and 2016 and have established amendments to the Labour Relations Act (LRA) with regards to picketing, secret ballots and the establishment of an advisory arbitration panel. The Committee once again requests the Government to indicate the status of the amendments and to provide a copy thereof once adopted.

Articles 2 and 3 of the Convention. Rights of vulnerable workers to be effectively represented by their organizations. The Committee had previously requested the Government to provide a copy of the research report on the impact of the amendments of the Labour Relations Act on trade unionization of temporary employees, and information on any developments regarding the Government’s interventions to address difficulties in the exercise of the right to organize by farmworkers, including on the ITUC’s 2015 observations alleging difficulties for farmworkers to engage in legally protected industrial action. The Committee notes the Government’s reply that it has not conducted any research, because there is nothing in the legislation that impedes trade unions from organizing in any sector irrespective of the workers’ status. The Government points out that while it is its responsibility to create a conducive environment for organizations and workers to exercise their rights, it is not the Government’s responsibility to organize on behalf of workers. The Committee refers to its 2019 observation wherein it took note of the Government’s various initiatives aimed at addressing difficulties encountered by temporary workers and farmworkers, which included, among others, a commissioning of the above-mentioned research. The Committee reiterates its previous requests and expects the Government to transmit full details with its next report. In particular, the Committee expects clarification as to whether the research report that was announced in the past will be produced after all, or how else the Government intends to create a framework within which vulnerable workers can engage in legally protected industrial action.