Expert Guide on Human Rights and Forced Labour in South Africa

The Constitution of the Republic of South Africa, 1996, provides in Chapter 2 (the Bill of Rights) that everyone has the right to freedom and security of the person (section 12) and that no one may be subjected to slavery, servitude or forced labour (section 13). This is given effect to by various provisions in the Basic Conditions of Employment Act 75 of 1997 (BCEA), which prohibits forced labour and child labour. The BCEA provides that it is an offence to require  or permit a child to be employed in contravention of the BCEA, and any person that contravenes the prohibition of forced labour or causes, demands or imposes forced labour commits an offence.  

The Children's Act 38 of 2005 similarly prohibits the use, procurement or offering of a child for slavery or practices similar to slavery, including but not limited to debt bondage, servitude and serfdom, or forced or compulsory labour or provision of services and/or the use, procurement, offering or employment of a child for purposes of commercial sexual exploitation.

The Prevention and Combating of Trafficking in Persons Act 7 of 2013 (PCTPA) provides for certain offences related to exploitation, debt bondage, the possession, destruction or confiscation of documents (such as travel documents, passports) and use of the services of trafficking victims. 

There are no sector specific regulations regarding forced labour however, in terms of the Regulations on Hazardous Work by Children in South Africa under the BCEA, requiring or permitting a child to perform certain kinds of work, such as underground mining, certain types of manufacturing and deep sea fishing, is prohibited. 

There are currently no specific human rights and supply chain obligations on companies.  

South Africa has ratified 28 International Labour Organisation (ILO) Conventions, with 23 ILO Conventions being in force, such as the Forced Labour Convention, 1930 (No.29) and the Labour Inspection Convention, 1947 (No. 81). In terms of Article 22 of the ILO Constitution, each Member agrees to submit annual reports to the International Labour Office on measures which have been implemented, to give effect to the provisions of Conventions to which it is a party. The South African government therefore has a duty to submit the aforementioned annual reports, in relation to the ILO conventions to which it is a party, to the International Labour Office.

Members of the public may file complaints with the Department of Employment and Labour concerning forced and child labour under the BCEA. Labour inspectors have wide powers in terms of inspections under the BCEA (including powers of entry and powers to question and inspect) and issue compliance orders in respect of failures to adhere to the BCEA, which may be made arbitration awards where employers fail to comply.

In terms of the PCTPA, members of the public, despite any law, policy or code of conduct which prohibits the disclosure of personal information, who suspect that there has been a contravention of the prohibition against  trafficking, for the purposes of forced and child labour (or other contraventions of the PCTPA), must immediately report such suspicion to the South African Police Service (SAPS) for investigation. The SAPS plays a key role in the investigation of reported cases and the enforcement of the PCTPA.

In terms of the BCEA, convictions for offences related to the contravention of the prohibitions related to forced labour and child labour may result in a fine or imprisonment of up to 6 years being imposed. 

In terms of section 13 of  PCTPA where a person has been found guilty of trafficking persons for the purposes of exploitation (which includes forced labour as per section 1 of the PCTPA), such person will be liable to a fine of up to R100 million or imprisonment (including life imprisonment or life imprisonment without the option of a fine, or both).  

Although not expressly provided for under the BCEA and PCTPA, the Chief Executive Officer and all other directors can be held accountable for offences committed by the employer and may be liable for fines and imprisonment as provided for under such legislation.

South Africa, as a member of the African Union, is signatory to the Draft Ten Year Action Plan on Eradication of Child Labour, Forced Labour, Human Trafficking and Modern Slavery in Africa (the Draft Plan). The Draft Plan is part of a broader framework that aligns with Agenda 2063: The Africa We Want and Sustainable Development Goal (SDG) target 8.7, which aims for significant improvements in working conditions and the protection of vulnerable groups across the continent.

The Draft Plan emphasises the importance of reviewing national labour laws or codes, to establish or update the definitions of child labour and provisions which relate to the minimum age of employment, to be in line with ratified international conventions.