Section 43 of the Constitution is short in its prohibition and detailed in its exceptions — and the exceptions are where the practical questions arise, particularly around communal work.
The prohibition
No person shall be required to perform forced labour. The right belongs to every person, not only citizens, and under section 34 it applies between individuals and to corporations and associations, not only against the State.
Section 43(2) — what is not forced labour
- (a) Labour required by the sentence or order of a court.
- (b) Labour required of a person in lawful custody which, although not required by a court order, is necessary for the hygiene of, or the maintenance of, the place of custody.
- (c) For a person in custody for care, treatment, rehabilitation or welfare — labour reasonably required for that purpose.
- (d) Labour required of a member of a disciplined force in pursuance of their duties as such.
- (e) Subject to the approval of any local government body for the area in which the person is required to work — labour reasonably required as part of reasonable and normal communal or other civic duties.
- (f) Labour of a reasonable amount and kind required in the national interest by an Organic Law that complies with section 38 — including, in the case of compulsory military service, labour required as an alternative to such service for a person with conscientious objections to military service.
Paragraph (e) — communal work
This is the exclusion that matters in daily life. Community work parties — clearing a road, maintaining an aid post, building a classroom, cleaning a market — are a normal part of life in much of the country, and section 43(2)(e) accommodates them. But it does so on conditions that are easy to overlook:
- The work must be approved by the local government body for the area in which it is required.
- It must be reasonably required.
- It must be part of reasonable and normal communal or other civic duties.
Work that is not approved by the relevant local-level government body, or that is not reasonable, or that is not a normal communal duty, does not fall within the exclusion — whoever is directing it. Labour extracted for the private benefit of an individual, a business or an official is not a communal duty at all.
The relevant bodies operate under the Organic Law on Provincial Governments and Local-level Governments and the Local-level Governments Administration Act 1997.
Work in custody
Paragraph (b) is narrower than it is often treated as being. Where labour is not required by a court order, it is excluded only so far as it is necessary for the hygiene of, or the maintenance of, the place of custody. Work outside that description — particularly work for the benefit of a third party — needs some other source of authority.
The other constitutional limits continue to apply in custody: section 36 (absolute), and section 37(17), which requires all persons deprived of liberty to be treated with humanity and with respect for their inherent dignity.
Conscientious objection
Paragraph (f) is the only exclusion that requires an Organic Law complying with section 38, and it expressly contemplates alternative service for conscientious objectors to military service. Read with section 45 — freedom of conscience, thought and religion — the Constitution does not treat conscientious objection as a loophole to be tolerated but as a position to be accommodated.
Forced labour and employment
Section 43 also has a role in employment. Work performed under a freely entered contract, which the worker is free to leave, is not forced labour. Work compelled by threat, by withholding identity documents, by debt bondage, or by threat of penalty is a different matter — and, because of section 34, section 43 can operate against a private employer.
Related constitutional provisions are section 48 (freedom of choice of employment) and section 52 (freedom of movement).
Ask who is requiring it and under what authority. For communal work, ask whether the local-level government body has approved it. Keep a record of dates, hours and who gave the direction. A breach is enforceable under section 57, with damages under section 58.
Sources
- Constitution — ss 34, 36, 37(17), 38, 43, 45, 48, 52, 57, 58
- Organic Law on Provincial Governments and Local-level Governments
- Local-level Governments Administration Act 1997
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.