REPUBLIC OF SOUTH AFRICA
TREATY SERIES
No. 11/1964
Agreement between the Government of the Republic of South Africa and the Government of the Republic of Portugal regulating the employment of Portugese workers from the Province of Mozambique on certain mines in the Republic of South Africa.
Place and Date of Signing:
Lisbon, 13th October, 1964.
Date of Entry into Force: 1st January, 1965.
Amended by exchange of Notes: 24th February, 1971 and 11th May, 1971.
The Government Printer, Pretoria
AT THE EMBASSY OF THE REPUBLIC OF SOUTH AFRICA,
Avenida Antonio Augusto de Aguiar 23-5
LISBON
13th October, 1964.
Your Excellency,
I have the honour to refer to Your Excellency’s Note of today’s date which, when translated into English, reads as follows:
"I have the honour to inform Your Excellency that the Portuguese Government agrees with the provisions contained in the document quoted hereunder, as drafted by the South African and Portuguese delegations during the negotiations which took place in Pretoria from the 25th October to the 27th November, 1963:
‘Article 1*
"The Government of the Republic of Portugal and the Government of the Republic of South Africa regulate according to the provisions of this Agreement the employment of Portuguese workers from the Province of Mocambique on mines in the Republic of South Africa affiliated to the Recruiting Organization or Organizations referred to Article III. Provided that the Portuguese and South African Authorities reserve the right to prohibit the Recruiting Organization or Organizations to recruit workers for certain mines (other than gold, coal and uranium mines) and provided further that the said Authorities may impose conditions in regard to the recruiting of labour for certain mines (other than gold, coal and uranium mines).
Article II
The Portuguese Government authorises the recruitment of workers in the Province of Mocambique south of the Save River subject to the terms and conditions contained in the following articles.
The recruiting organisation or organisations shall under no circumstances establish
permanent or temporary recruiting stations north of latitude 22 degrees South.
The Province of Mocambique reserves the right to limit or stop the recruitment of workers in certain zones should there, in its opinion, be economic, social or medical grounds which make it advisable.
His Excellency Dr. Alberto Franco Nogueira,
Minister of Foreign Affairs of the Republic of Portugal,
LISBON.
*Amended by Exchange of Notes: 24/2/71 & 11/5
Article III
"The recruitment of Portuguese workers in Mocambique for employment on the mines, the transport of such workers from the places of recruitment to the places of employment, the signing of contracts on behalf of the employers, whether such contracts are signed in Mocambique or in the Republic of South Africa, and the workers’ repatriation from their places of employment, at the expiration of their contracts shall be entrusted to an organisation or organisations duly approved by the Authority of the Province of Mocambique and of the Republic of South Africa. The cost of transporting such workers from the places of recruitment to the mines and the cost of the repatriation of the workers shall be borne by such organisation or organisations.
During their journeys between the places of recruitment and the places of employment, and their return from the places of employment to the Province of Mocambique the workers shall be supplied with food in accordance with their normal standards by the recruiting organisation."
Article IV
The recruitment of Portuguese workers in Mocambique shall only by undertaken by persons employed by one of the organisations referred to in Article III (hereafter termed "Recruiting Organisation") to whom the Province of Mocambique shall have granted a recruiting licence valid for one year and renewable for yearly periods subject to the following conditions:
payment of an annual fee of R250.00 (two hundred and fifty rand) for each licence;
deposit of the amount of R250.00 (two hundred and fifty rand) with the Treasury (Caixa do Tresouro) in Lourenco Marques, to the order of the "Instituto do Trabalho, Previdencia e Accao Social" of Mocambique (hereinafter termed "Instituto do Trabalho"), as security;
written declaration by the applicant for the licence, undertaking unreservedly to fulfill all the provisions of this Agreement and of the regulations relating to recruiting and emigration of workers in force in Mocambique on the 1st January, 1963, and of the amendments introduced to them which are not in conflict with the terms of this Agreement;
declaration by the Recruiting Organisation that the applicant is its employee and that the same Organisation grants him powers to sign labour contracts on behalf of the Organisation or the parties it represents;
the licence shall be personal and non-transferable and it is prohibited to substitute one person for another in the performance of the functions to which the licence entitles its holder;
the renewal of the licence must be applied for within fifteen days before the expiration of its period of validity, under penalty of forfeiture of the deposit of security; but the holder of licence who does not desire a renewal thereof shall make a declaration to that effect, and shall hand over the licence within the said period of fifteen days in order to enable him to withdraw the relative deposit of security;
the Province of Mocambique reserves the right to cancel the recruiting licences in case of war or of serious public disturbances which in its opinion may make it imperative;
licences may also be cancelled if the holders seriously and persistently fail to comply with the laws in force in Mocambique;
no indemnity shall be due for the cancellation of licences under paragraphs (g) and (h). In the cases provided for in paragraph (h) the holders of the licences shall also forfeit the deposits of security; and
the Province of Mocambique reserves the right to refuse the issue or renewal of licences when the applicants are unacceptable to its administration.
Article V
The Province of Mocambique may cancel its approval, given in terms of Article III, to any recruiting organisation whenever after a joint investigation by representatives of the Province of Mocambique and the Republic of South Africa, it has been established:
that the Recruiting Organisation established a recruiting centre, for the recruiting of Portuguese workers no matter what its nature or size may be, less than one hundred miles outside the border of the Province of Mocambique situated to the north of latitude 22 degrees South, in addition to those already established on the 12th April, 1952; and
that the same organisation established any recruiting centre in the Kruger National Park in addition to those existing on the 12th April, 1952, at Pafuri, Letaba, Olifants River and Isweni.
The Province of Mocambique may, after consultation with the Government of the Republic of South Africa, cancel its approval, given in terms of Article III, to any recruiting organisation if that recruiting organisation by itself, or through another person, made propaganda among the population of the Province of Mocambique situated to the north of the Save River, with the purpose of inducing them to present themselves for employment by the mines.
The cancellations provided for in this Article shall also apply to the recruiting licences of the employees of the Recruiting Organisation without any indemnity being due.
Article VI
The Authorities of the Republic of South Africa shall accord full facilities to the Consul-General for Portugal in Johannesburg and to the Consular Officers under his jurisdiction for the performance of his functions as far as the Portuguese workers are concerned.
The workers to whom the provision of this Agreement apply shall, in addition to the protection accorded to them by the Portuguese Consular Authorities, also receive the protection and assistance of the "Delegado do Instituto do Trabalho Previdencia e Accao Social da Provincia de Mocambique" (Delegate of the Institute of Labour) in everything relating to their employment and the rights emanating from their contracts of employment.
The Portuguese authorities shall communicate to the Authorities of the Republic of South Africa the name of the Delegate of the Institute of Labour who shall establish his offices in Johannesburg and shall be assisted by Portuguese workers. The names and addresses of such personnel shall also be communicated to the Authorities of the Republic of South Africa.
The Authorities of the Republic of South Africa and the mines shall accord full facilities to the Delegate of the Institute of Labour for the performance of his functions under this Agreement.
The Authorities of the Republic of South Africa and the mines themselves shall give to the Delegate and his Portuguese personnel freedom of access to the places of employment and of residence of the Portuguese workers and, when possible and convenient, shall facilitate the visiting of places of employment underground, and shall facilitate access of the workers to the officials referred to in this Article.
The Republic of South Africa shall facilitate the entry and sojourn of the Portuguese employees of the Delegate, whatever their rank, in a way compatible with the laws and regulations of the Republic of South Africa.
The Delegate of the Institute of Labour shall, inter alia:
promote by all means at his command the registration of workers by his office;
organise a Deposit and Transfer Agency for money savings belonging to Portuguese workers to be sent to any Province of Portugal whence they came;
obtain information of the conditions of employment of Portuguese workers in the different mines and to obtain from the latter monthly returns showing the movement of workers, their wages and number of working days;
establish with the Recruiting Organisation and the workers the most convenient itinerary for the workers’ repatriation both for territories south and north of the Save River; and
have access to the Authorities of the Republic of South Africa on all matters relating to the employment of Portuguese workers under this Agreement.
Article VII
The mines which authorise the Recruiting Organisation to sign contracts on their behalf, shall report their mandate to the Delegate of the Institute of Labour referred to in the previous article, either directly or through the Transvaal and Orange Free State Chamber of Mines.
The Delegate of the Institute of Labour shall be advised of all mines admitted to membership of the Recruiting Organisation and of those which cease their membership.
Article VIII
No recruited worker shall be allowed to leave Mocambique without having signed a labour contract, in accordance with this Agreement, with the Recruiting Organisation representing its members, which contract shall be duly approved by the "Instituto do Trabalho", and without having a Portuguese passport or travel document.
In order to facilitate the travelling of workers, the South African Authorities shall accept travel documents other than a passport, the form of which shall previously be agreed upon.
The contract shall be drawn up in Portuguese and in one of the official languages of the Republic of South Africa and there shall be as many copies as necessary for the contracting parties as well as for the Portuguese and South African authorities.
In the recruiting stations or posts versions of the contracts in the local dialects shall be displayed in order that the worker may consult them. Such versions must, however, be duly approved by the "Instituto do Trabalho".
Article IX
The Government of the Republic of South Africa shall accept the passport or travel document referred to in the previous Article, when produced together with the relative contract of employment, as being sufficient documentation for the worker’s entry into the Republic of South Africa and his employment on the contracting mine.
The Government of the Republic of South Africa reserves the right, while the contract is still valid, to withdraw from any Portuguese worker permission to stay in South Africa.
Article X
The Provisions of the contracts relating to the rights and obligations of the parties shall always be expressed clearly and unambiguously and shall contain the following:
identification of the employer;
identification of the worker;
worker’s permanent address in Mocambique;
place or recruitment;
places of employment;
nature of work;
duration of the contract;
minimum salary guaranteed to the worker;
food, clothes and lodging;
conditions of the worker’s transport to the place of employment and of repatriation; and
special conditions of the contract in certain cases.
Article XI
The contracts of employment shall be entered into for a period of twelve months (313 shifts worked), but the workers shall be entitled to enter into new contracts, or to extend or to renew their contracts for a period or periods, not exceeding six months. The maximum period of service shall not exceed eighteen months.
The period of the contract is calculated from the date the worker arrives at the place of employment, and the period of extension or of renewal from the day following the one on which the previous contract expired, even if the further contract is signed on a subsequent date.
Article XII
Contracts with workers under the age of 18 years or with workers who are not physically capable of performing the work for which they are contracted or workers whose contracts contain provisions contrary to this Agreement shall not be approved in terms of the provisions of Article VIII.
The "Instituto do Trabalho" shall also be entitled to withhold approval of contracts signed on behalf of any mine if after a joint investigation by representatives of the Province of Mocambique and the Republic of South Africa it has been established that such mine has persistently failed to fulfill the provisions of previous contracts or has deliberately obstructed the action of the Delegate of the Institute of Labour, or his authorised representative, or has obstructed the approach of the workers to such official or his representatives.
Article XIII
Notwithstanding the provisions of their contracts Portuguese workers shall not be treated less favourable than South African workers employed on the same kind of work especially in regard to enumeration, food, accommodation, clothing, hours of work, overtime, rest periods, injuries sustained and occupational diseases contracted in the course of their employment, apprenticeship and professional grading.
Article XIV
The Province of Mocambique shall facilitate the granting of passports or travel documents to the workers who have contracts of employment in terms of this Agreement duly signed by the worker but shall have the right of refusing such documents to those workers who have been convicted of any crime or who are known to be of bad character.
The contract to be valid must be duly attested by an agent of the "Instituto do Trabalho".
Article XV
The workers recruited in Mocambique found to be unfit for work on the mines by any medical officer of the Province of Mocambique, or of the Recruiting Organisation in Mocambique, or by medical officers of the Recruiting Organisation in the Republic of South Africa shall be returned to their place of recruitment at the expense of the Recruiting Organisation by the route by which they came, unless by common agreement between the Organisation and the worker another route is chosen.
During the journey the worker shall be supplied with food in terms of Article III.
Workers who during their term of employment are found to be unfit for the work for which they are engaged shall be repatriated and the costs of repatriation shall be borne by the mines.
Article XVI
The contracts signed in Mocambique must be registered by the Delegate of the Institute of Labour mentioned in Article VI, and the contracts, renewals or extensions signed in the Republic of South Africa between the Portuguese workers and the mines, either directly or represented by the Recruiting Organisation must also be registered by the above-mentioned Delegate.
The operational costs incurred in respect of this Agreement shall be defrayed from the contributions on a scale to be mutually agreed upon between the two Governments.
Article XVII
The number of workers from the Province of Mocambique to be employed by the mines shall be mutually agreed upon between the two Governments.
Article XVIII
The transfer to Mocambique by the Portuguese workers of a portion of their earning shall be effected on a basis to be mutually agreed upon between the two Governments.
The amounts transferred shall be paid in Mocambique in one of the following ways at the worker’s choice, which choice shall be made at the commencement of his contract and again if he wishes to do so, at the time of his renewal or extension:
as periodical payments, the period of which shall not exceed three months, to a relative indicated by the worker;
as a deposit in a savings account opened in the worker’s name guaranteed by the Province of Mocambique, interest being payable at a rate not less than the current rate of interest in the money market in Loucenco Marques; and
as payment to the worker himself at the time of his return of the total amount transferred by him.
Should the worker not exercise any choice the method referred to in paragraph (c) would apply.
Article XIX
In order to implement the previous Article the following provisions shall be observed:
The mines, through the Recruiting Organisation, shall deposit to the order of the Delegate of the Institute of Labour referred to in Article VI, by the fifteenth day of each month, in Johannesburg, with a bank nominated by the Province of Mocambique, the amounts deducted during the previous month from the wages of Portuguese workers to be transferred to Mocambique;
the Recruiting Organisation shall by the last day of each month lodge with the Delegate of the Institute of Labour schedules for each one of the payment forms established in Article XVIII, showing the amounts deducted during the previous month from the wages of the Portuguese workers, and shall also supply the Delegate with the necessary information to enable him to advise the Mocambique Authorities of the amounts to be paid to the workers’ relatives or to be deposited in the savings accounts opened in their names or to be paid directly to them;
the amounts which have to be paid directly to the workers in Mocambique shall be paid at four special payment stations, including the three as at present established. The Recruiting Organisation shall accept the principle of a progressive increase in the number of such stations from the established three up to a total of eight, subject to mutual agreement between the two Governments as to the date and place of the establishment of such additional stations. Additional stations shall only be established at places where adequate facilities to effect payment exist and where it would be to the advantage of the workers if such stations were established.
the Recruiting Organisations reserves the right to employ its own employees who speak Portuguese to make payments directly to the workers;
the Province of Mocambique shall put at the disposal of the Recruiting Organisation appropriate places for payments and shall weekly in advance hand over to the said Organisation the amounts necessary to effect such payments;
the payment of the amounts transferred for the workers’ families shall be made by the "Instituto do Trabalho", by means of cheques or nominal money order, without any charge to the workers or their families;
lists of the cheques and money orders mentioned in the previous paragraph shall be compiled separately in respect of each mine and shall be forwarded in duplicate to the Delegate of the Institute of Labour. One of the copies shall be for the mine, for its information and for that of the workers;
the "Instituto do Trabalho" shall effect the deposits referred to in paragraph (b) of Article XVIII and shall advise the employers of the workers concerned of the numbers of the accounts, dates of the deposits and amounts deposited; and
the Recruiting Organisation and the mines shall give all facilities to the Delegate of the Institute of Labour in order that he may be able to satisfy himself that the provisions of this Article are being implemented.
Article XX
No deduction shall be permitted from the salaries of the Portuguese workers for payment of advances made to them before the commencement of their contracts by the Recruiting Organisation or the mines.
However, in order to assist the worker’s family and to prepare him for the journey, the Recruiting Organisation may at its discretion on behalf of the mines advance, at the time of the attestation of the contract, when so requested by the worker, an amount not exceeding one month’s salary which shall be recoverable during the first six months of the contract.
Article XXI
The Portuguese workers, their heirs or dependents, may request the Delegate of the Institute of Labour to act as their advisor in civil cases to which they may be a party.
Article XXII
Compensations monies due to Portuguese workers in respect of injuries sustained or diseases contracted in the course of their employment shall be paid to them in the following manner:-
ten per cent of the amount of compensation awarded when the amount exceeds R200 (two hundred rand);
R R20 (twenty rand) when the amount of compensation awarded is more than R20 (twenty rand) but does not exceed R200 (two hundred rand);
the total amount of compensation awarded, when the amount is R20 (twenty rand) or less.
When the amount of compensation awarded to a worker in terms of paragraphs (i) and (ii) includes fractions of a rand such fractions (cents) shall be disregarded for the purpose of calculating the percentage to be paid to the worker in terms of paragraph (i) or otherwise for the purpose of paragraph (ii) but shall instead be added to the amount to be paid over to the worker.
All amounts referred to in this Article shall be paid to the worker in the presence of the Delegate of the Institute of Labour or else one of his authorised representatives, in accordance with the procedure applicable to in the Republic of South Africa and the balance shall be forwarded to the said Delegate for transmission to the Province of Mocambique and there be paid by the Portuguese authorities to the worker concerned in the area of his permanent residence.
Where the worker concerned has returned to the Province of Mocambique before receiving the compensation due to him, or where such worker has indicated that the total amount of compensation should be paid to him in the Province of Mocambique, the total amount of compensation shall then be forwarded to the Delegate of the Institute of Labour for transmission to the Province of Mocambique where it shall be paid by the Portuguese authorities in that province to the worker concerned.
Article XXIII
All assets in the estates of deceased Portuguese workers, together with any compensation moneys due in respect of such workers, shall be forwarded to the Portuguese Consular Representative in the Republic of South Africa for transmission to the Province of Mozambique. When the heirs or beneficiaries of the deceased workers cannot be traced, such moneys shall be invested by the Province of Mozambique in works or services of a social character, in areas where the majority of workers are recruited. All other unclaimed moneys due to the Portuguese workers which could not be paid to them shall be dealt with in a similar manner.
Any interest that may accrue upon such moneys, and also upon the amounts deposited in terms of paragraph (a) of Article XIX, shall be similarly invested.
Article XXIV
All moneys payable under this Agreement whether they are taxes, fees, wages, or any other moneys, shall be paid and settled in the legal currency of the Republic of South Africa. However, the moneys mentioned in paragraphs (a) and (b) of Article IV of this Agreement may be paid in escudos, at the official rate of exchange.
Article XXV
The provisions of the Pneumoconiosis Compensation Act 1962, (Act No. 64 of 1962) of the Republic of South Africa, and any amendment thereof, in regard to the award to compensation and other benefits to workers resident outside the Republic and in regard to the examination of workers for that purpose by medical officers resident outside the Republic, shall apply also to Portuguese workers on their return to Mocambique.
Article XXVI
Portuguese workers whose employment in the Republic of South Africa is regulated by the provisions of this Agreement shall not be liable for any direct taxes payable in South Africa. The Province of Mocambique shall not collect any levies or taxes from the workers for the signing of contracts, medical examinations, departures from or entry into the Province of Mocambique.
Article XXVII
Nothing in this Agreement shall detract from any rights acquired or liabilities incurred by the Portuguese workers employed on the mines or by their employers in terms of contracts entered into under the provisions of the Convention of 11 September, 1928, as amended. Any renewals or extensions of such contracts entered into after the date of coming into operation of this Agreement shall be covered by the provisions of this Agreement.
Article XXVIII
All deductions made by the mines or the Recruiting Organisation from the salaries of Portuguese workers contracted under the provisions of the Convention of 11 September, 1928, as amended, and which have not been used for the purpose conceived, shall be handed to the Delegate of the Institute of Labour within one month from the date on which this Agreement comes into force. Deductions made under this Agreement and not used for the purpose conceived shall also be handed to the said Delegate every second year from the date of coming into operation of this Agreement.
Any obligation incurred by the mines or the Recruiting Organisation which would be offset by the deductions referred to above shall be assumed by the Portuguese Authorities.
Article XXIX
On the expiration of this Agreement, its provisions shall continue to bind the Recruiting Organisation, the mines and the Portuguese workers until the expiration of the existing contracts of employment, and the Delegate of the Institute of Labour shall continue his functions pending the repatriation of such workers.
Article XXX
Wherever in this Agreement provision is made for a joint investigation by representatives of the Province of Mocambique and the Republic of South Africa, the said representatives shall appoint as an umpire a judge, who in the first case that arises shall be appointed from the Province of Mocambique and in the second case from the Republic of South Africa, and thereafter in like rotation. In the event of the said representatives failing to come to a unanimous decision on matters under investigation, the findings of the said umpire on these matters shall be final.
The Province of Mocambique and the Government of the Republic of South Africa shall, at the request of either party, consult with each other on the working of this Agreement.
Article XXXI
Subject to the provisions of Article XXVII of this Agreement, the provisions of this Agreement shall as from their commencement be substituted in all respects for the provisions of Part I of the Convention of 11 September, 1928, as amended, regulating the introduction of Portuguese labour from Mocambique for work in the mines.
Article XXXII
Notwithstanding the provisions of Article LIV of the Convention of 11 September, 1928, this Agreement shall come into operation on the 1st of January, 1965, and shall remain in force until either of the governments shall have given three years’ notice of its termination.
Should the Government of the Republic of South Africa agree with the abovementioned provisions, the Note and Your Excellency’s affirmative reply of today’s date and in equivalent terms shall constitute an Agreement between our Governments on the matter.
This Note and Your Excellency’s Note of today’s date quoted above shall constitute an Agreement between our two Governments on the matter.
Please accept, Your Excellency, the assurance of my highest consideration.
(Sgd.) HILGARD MULLER
MINISTER OF FOREIGN AFFAIRS OF THE
REPUBLIC OF SOUTH AFRICA