Rapport définitif - Rapport No. 44, 1960

Cas no 200 (Afrique du Sud) - Date de la plainte: 10-JUIN -59 - Clos

1. 149. This case consists of two distinct sets of complaints. The first set, which relates to the general trade union situation in the Union of South Africa, originates from the Trade Unions International Workers of the Food, Tobacco and Beverage Industries and Hotel, Café and Restaurant Workers (a trade department of the W.F.T.U). Their complaints contain a number of allegations, which are dealt with more fully below, to the effect that the exercise of trade union rights has been obstructed on several occasions in the country complained of. The second set of complaints comes from the South African Congress of Trade Unions and the World Federation of Trade Unions respectively ; this group of complaints relates to a specific infringement of freedom of association directed against a person mentioned by name. On account of this distinction, it may be expedient to divide this case into two main parts.

A. A. The complainants' allegations

• Complaints of the Trade Unions International of Workers of the Food, Tobacco and Beverage Industries and Hotel, Café and Restaurant Workers
  150. 150 The complaints alleged by the above-mentioned organisation are contained in two communications dated 10 June and 17 September 1959. Although they do not come from an international organisation of workers having consultative status with the I.L.O, these complaints must be deemed receivable under the present procedure, as the complainants informed the Director-General in a letter dated 7 August 1959 that the organisations mentioned in their complaint were among their affiliated organisations. The communications from the complaining organisation were transmitted to the Government of the Union of South Africa for comment in a letter dated 3 November 1959. The Government forwarded its reply in a communication dated 2 February 1960.
• Allegations relating to the Pillage of Trade Union Premises.
  151. 151 The complainants allege that thugs, " enemies of trade unionism and the labour movement ", broke into the offices of the Food and Canning Workers' Union in Capetown on the night of 23 April 1959, where they are said to have made away with the contents of the safe and to have smashed equipment and torn up the files inside the premises. Without actually saying so, the complaining organisation insinuates that the Government is not altogether a stranger to this affair and states that the trade union in question, together with another union, the African Food and Canning Workers' Union, has been the butt of repeated persecution on the part of the Government, though without specifying what kind of persecution.
  152. 152 In its reply the Government confirms that a burglary was committed at the offices of the above-mentioned union on the date stated by the complainants, declares that the police are making inquiries into the matter as they always do in similar circumstances and denies that a burglary of this kind raises any question of freedom of association.
  153. 153 The Committee considers that a burglary in the offices of a trade union does not create any presumption of interference with the exercise of freedom of association in the absence of any evidence to the contrary, and that in the information at its disposal there is nothing to suggest that in the case in point there was any connection between the burglary and the exercise of trade union rights. For this reason the Committee recommends the Governing Body to decide that this aspect of the case does not call for further consideration.
• Allegations relating to the Dismissal of Trade Union Leaders.
  154. 154 The complainants allege that trade union leaders and prominent members of the rank and file-without giving any names or numbers-have been dismissed in Johannesburg, Port Elizabeth, Wolseley, Bonnievale, Tulbagh, Capetown and Paarl. According to the complainants this represented a renewed attempt on the part of some employers to destroy the Food and Canning Workers' Union.
  155. 155 In its reply, the Government states that in the Union of South Africa employers are at liberty to dismiss their workpeople, just as employees are free to leave the service of their employers, subject of course to the provisions of their employment contracts. The Government ends by declaring that it never intervenes in such matters.
  156. 156 It would indeed seem that there has been no government intervention in the present case. Not only do the complainants not allege any intervention on the part of the Government, but the very way the complaint is worded suggests quite the opposite. The complainants express themselves on this point in the following words " Some of the employers hoped and relied upon the nationalist government to break the union."
  157. 157 While noting that in this case there does not appear to have been any government interference in the dismissals complained of, and while taking the view that the wording of the complaint is in any case too vague to allow it to conclude that such dismissals actually constituted an infringement of freedom of association, the Committee emphasises, as it has done in many previous cases that it is one of the fundamental principles of freedom of association that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment-dismissals, transfers and other prejudicial acts-and that such protection is particularly desirable in the case of trade union leaders, in view of the fact that in order to carry out their trade union functions in full independence, they must have the assurance that they will not be victimised by virtue of their trade union office.
  158. 158 Under these circumstances, for the reasons given in the previous paragraph and subject to the observations contained therein, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to the Arrest of Trade Union Leaders on Treason Charges.
  159. 159 The complainants state that " the Government and the employers felt that when they removed the union officials, Ray Alexandre, Frank Marguard, S. V. Reddy, Gus Coe, Betty du Toit, Sarah Wentzel and Becky Lan, and arrested and charged with treason many of the union's leaders, the said union would be broken and not in a position to defend and advance the workers' interests ".
  160. 160 With respect to this aspect of the case the Government confines itself in its reply to referring to previous communications on the question, and states that it has no further comments to make.
  161. 161 In another case concerning the Union of South Africa it was likewise alleged that there were some trade union leaders among a number of persons who had been arrested on charges of treason. As judicial proceedings were in progress the Governing Body, on the Committee's recommendation, requested the Government to be good enough to inform it in due course as to the outcome of these legal proceedings and to furnish copies of the judgments given in the case of the accused trade unionists. In its reply on that occasion the Government stated that it considered that the question of the trial of certain persons on charges of high treason fell outside the competence of the International Labour Office and that it had decided not to furnish information on this question.
  162. 162 In the above-mentioned case the Governing Body rejected the Government's arguments by stating that although an indictment for high treason was clearly outside the competence of the I.L.O, the question whether the formulation of such a charge on the basis of facts and allegations involving the exercise of trade union rights is to be regarded as a matter relating to high treason or a matter related to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned, in such a manner as to prevent the Governing Body from inquiring further into it. When it adopted the Committee's report on that case at its 138th Session (March 1958), the Governing Body noted with regret that the Government was not prepared to inform the Governing Body as to the outcome of the legal proceedings pending in the South African courts and reaffirmed the importance which it has always attached to the principle of a prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions. In the present case the Committee recommends the Governing Body to come to the same conclusion.
• Allegations relating to the Recommendations of the Wage Board.
  163. 163 The complainants allege that at the very moment when the South African Congress of Trade Unions was organising a meeting to press for the £1 day, the Wage Board " submitted recommendations for the food industry worsening the workers' conditions and lowering the wages". The complainants refrain however from giving any further details.
  164. 164 In its reply the Government states that the Wage Board, which operates on a scientific basis, is an independent statutory body set up under the terms of the Wage Act, 1957. It recommends, inter alia, the payment of minimum wages in accordance with the ability of an industry as a whole to pay after due investigation and consideration of representations made by interested bodies. The employers, the Government adds, are free to pay wages in excess of such minimum rates.
  165. 165 In earlier cases, the Committee has not thought it appropriate to examine questions relating to the economic or social policies of governments where there is no direct relation with the exercise of freedom of association. Having regard to this principle and considering that the issue raised is not directly connected with that of freedom of association, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to Racial Discrimination in Trade Union Affairs.
  166. 166 According to the complainant organisation, the Government, not content with having passed the Suppression of Communism Act, 1950, the Native Labour (Settlement of Disputes) Act, 1953, and the Industrial Conciliation Act of 1956, Acts which, say the complainants, " have taken away the elementary rights of workers to organise unions and to have leaders of their own choice and the right to collective bargaining and strike action ", has undertaken to introduce amendments to the Industrial Conciliation Act. In the complainants' opinion these amendments, if passed, would have the effect of taking away jobs held by the coloured, Indian and African workers since time immemorial and of breaking the last few unions that have been standing up in opposition to the Government's policy.
  167. 167 The complainants' organisation say that under the Industrial Conciliation Act, 1956, mixed unions were compelled to separate their members into white and coloured branches, but were still permitted to cater for both white and coloured members. They assert that in the terms of a proposed amendment to section 7 of the Act, registered unions will have to declare in advance in their Constitutions that in respect of any new areas or additional interests which they propose to cover, they will cater for white persons only or coloured persons only. " In other words," the complainants continue, "they will not be allowed to recruit white and coloured workers, even in separate branches, into their unions should they go to new areas or cater for new interests."
  168. 168 The complainants then allege that an amendment to section 8 of the Act would have the effect of tightening up the restrictions on racial mingling in the unions. The 1956 Act, they say, compelled the mixed unions to hold separate meetings for the separate branches ; it was, however, possible to hold mixed congresses, conferences and meetings other than branch meetings. The complainants allege that the new amendment says that the Constitution of mixed unions must provide " for the holding of separate meetings by white persons and coloured persons ".
  169. 169 Continuing their argument the complainants say that the proposed amendments further provide that a registered union shall not appoint or elect an African as an official or office bearer; no African may be appointed as a representative or alternate representative of employees on an industrial council or a conciliation board. Another amendment is said to prohibit payroll deductions of trade union dues in the case of members of the African unions.
  170. 170 Lastly, the complainants say that under the Act certain jobs would be reserved exclusively for whites.
  171. 171 On the latter point the Government states that the fundamental objective of the job reservation system is to avoid competition between the various races. In regard to the other allegations, the Government refers to the observations presented in connection with previous cases.
  172. 172 The question of racial discrimination in the trade union field has already been considered by the Committee in the context of several earlier cases involving the Union of South Africa. In particular the Industrial Conciliation Act, 1956, to which the complainants refer, has been the subject of very careful consideration by the Committee which has made a number of observations regarding it. The amendments mentioned by the complainant organisation in the present case would have the effect of further enhancing the discriminatory nature of the Act which the Committee has already noted.
  173. 173 When it adopted the Committee's conclusions on similar allegations contained in paragraph 185 (2) of the Committee's 15th Report, the Governing Body, at its 128th Session (March 1955), noted that the provisions of the South African legislation involve discrimination against African workers which is inconsistent with the principle that workers without distinction whatsoever should have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation and that all workers' organisations should enjoy the right of collective bargaining. When it adopted the conclusions contained in paragraph 209 (2) (4) and (5) of the Committee's 24th Report, the Governing Body, at its 133rd Session (November 1956), noted that the provisions of the Industrial Conciliation Act, 1956, which had in the meantime replaced the Act of 1937 which it had previously considered, did not alter the general position of African workers and reaffirmed its earlier conclusions. At the same time, the Governing Body noted that the provisions of section 8 of the Act of 1956, with respect to the organisation in registered, mixed trade unions of separate branches for white persons and coloured persons respectively and the holding of separate meetings by the separate branches are not compatible with the generally accepted principle that workers' organisations should have the right to draw up their Constitutions and rules and to organise their administration and activities and that the provisions reserving to Europeans the right to be members of the executive committees of such trade unions are not compatible with the principle stated above or with the principle that workers' organisations should have the right to elect their representatives in full freedom. Further, the Governing Body noted that the provisions in the Act of 1956 prohibiting future registration of mixed trade unions and those relating to cancellation of registration of a trade union some of whose members have formed a new union pursuant to the Act, are not compatible with the generally accepted principle that workers, without distinction whatsoever, should have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation or with the principle that all workers' organisations should enjoy the right of collective bargaining. In these circumstances, the Committee recommends the Governing Body to come to the same conclusions in the present case.
  174. 174 The allegation to the effect that certain jobs would be reserved to white persons by law is another question which the Committee has been called upon to examine on an earlier occasion.
  175. 175 When the Governing Body adopted paragraph 209 (3) of the Committee's 24th Report at its 133rd Session (November 1956), the Governing Body, repeating in substance the findings contained in paragraph 185 (6) of the Committee's 15th Report adopted by the Governing Body at its 128th Session (March 1955), noted that section 77 of the Industrial Conciliation Act, 1956, would, so far as workers who, by virtue of other sections of that Act would become members of or may cease to be entitled to be members of trade unions registered or registrable under the Act are concerned, tend to prevent the negotiation by collective agreement of better terms and conditions, including terms and conditions governing access to particular employments, and thereby to infringe the rights of the workers concerned to bargain collectively and to promote and improve their working conditions which are generally regarded as essential elements of freedom of association. In the present case the Committee recommends the Governing Body to come to the same conclusions.
• Complaints of the South African Congress of Trade Unions and the World Federation of Trade Unions
• Allegations relating to Mrs. Elizabeth Mafekeng
  176. 176 The complaints lodged by the South African Congress of Trade Unions and the World Federation of Trade Unions are contained in two communications dated 2 and 25 November 1959 respectively. Both relate to the same occurrences.
  177. 177 The complainants allege that Mrs. Elizabeth Mafekeng, President of the African Food and Canning Workers' Union, has been the subject of an order banishing her for life and has been exiled to a remote farm in the North-Western Cape Province being forced to leave her husband and her 11 children, one of whom is a baby, at Paarl where she resided. Mrs. Mafekeng has not, it is alleged, been tried in any court of law for any offence and has no legal redress against the order which has been served on her, and which the authorities are said to justify by the fact that "her continued presence in Paarl is injurious to the peace, order and good administration of the Natives in the Paarl district". According to the complainants the real reason for the Government's action is Mrs. Mafekeng's persevering struggle for better living conditions for cannery workers.
  178. 178 At its session in November 1959 the Committee decided that the above allegations fell within the category of matters involving personal freedom, which the Governing Body at its November 1958 Session had decided should be regarded as cases of urgency
  179. 179 The Director-General accordingly sent two letters dated 24 November and 10 December 1959 to the South African Government with which he transmitted the complaints of the South African Congress of Trade Unions and of the World Federation of Trade Unions and requested the Government to supply its observations as a matter of urgency.
  180. 180 The Government submitted its reply in a letter dated 11 February 1960.
  181. 181 In its reply the Government states that the order was issued in terms of section 5 of the Native Administration Act, 1927, which empowers the Governor-General to make such an order whenever he deems it necessary in the public interest. The Government further states that the " removal order " in question was issued for reasons completely unrelated to Mrs. Mafekeng's trade union activities, and adds that it is, therefore, clear that the complaints lodged with the I.L.O in this connection are political in origin and cannot be held to fall within the sphere of interest of the Organisation.
  182. 182 If in certain previous cases the Committee has reached the conclusion that allegations relating to measures taken against trade union militants did not call for further consideration, this has been after it has received information from the governments concerned showing sufficiently precisely and with sufficient detail that the measures were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were prejudicial to public order or of a political nature. In the present case the Committee observes that the Government has refrained from specifying the activities which led to the issue of a removal order in respect of Mrs. Mafekeng.
  183. 183 However, it would appear from certain information reaching the Office and, in particular, from the words of the World Federation of Trade Unions complaint of 25 November 1959 that Mrs. Mafekeng had left the territory of the Union of South Africa before the order issued against her could be carried into effect.
  184. 184 This being so, the Committee recommends the Governing Body:
       • (a) to take note of the fact that Mrs. Mafekeng appears to have left the territory of the Union of South Africa;
       • (b) to draw the Government's attention to the importance it attaches to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions ;
       • (c) to state that it considers this principle to be infringed in the event of an accused person being exiled or banished for life without trial, as occurred in the case of Mrs. Mafekeng.

The Committee's recommendations

1. 185. Under these circumstances the Committee recommends the Governing Body:
   • (a) to decide that the allegations relating to the pillage of trade union premises, to the dismissal of trade union leaders and to recommendations of the Wage Board do not call for further examination;
   • (b) to reaffirm, with regard to the allegations relating to the arrest of trade union leaders on treason charges and to racial discrimination in trade union affairs, the decisions taken by the Governing Body in March 1955, November 1956 and March 1958 and recapitulated in paragraphs 162, 173 and 175 above ;
   • (c) to decide, with regard to the allegations relating to Mrs. Elizabeth Mafekeng:
   • (i) to take note of the fact that Mrs. Mafekeng appears to have left the territory of the Union of South Africa ;
   • (ii) to draw the Government's attention to the importance it attaches to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions ;
   • (iii) to state that it considers this principle to be infringed in the event of an accused person being exiled or banished for life without trial, as occurred in the case of Mrs. Mafekeng.
     • Geneva, 22 February 1960. (Signed) Roberto AGO, Chairman.