Extension of Security Tenure Amendment Bill [B24-2015]: briefing by Department of Rural Development and Land Reform
Rural Development and Land Reform
21 October 2015
Chairperson: Ms P Ngwenya-Mabila (ANC)
The Deputy Minister of the Department of Rural Development and Land Reform (DRDLR), addressed the Committee on the motivation for the amendments to the Extension of Security of Tenure Amendment Bill, saying the fundamental resolve was to overcome decades of hardship in South Africa. Its redress was not about obsolete political stories, but about the creation of just opportunities.
The DRDLR delegation said that the Act under review had been one of the first transformative initiatives of the democratic government, in order to regulate and not prohibit evictions on commercial farmlands in South Africa. Since then, there had been multiple calls either for its amendment or replacement by a new Bill, which would prohibit evictions on commercial farmlands in South Africa. Unfortunately, due to the Bill of Rights and property clauses in the Constitution, government could not prohibit, but could regulate how evictions were executed on commercial farmlands. An important motivation for the amendment was to strike a balance between the rights of the existing parties on the farms, such as the farm dwellers, farm labourers and the farmers. Since the farming industry formed part of an important sector, the Department had felt it necessary to create stability and advance it by means of the proposed amendments.
The Department went through the proposed amendments, which dealt with the definition of “family,” the substitution of “subsidies” with “tenure grants,” the maintenance of dwellings, the right to erect tombstones and the provision for compulsory mediation before litigation.
Members asked in-depth questions, pointing out the potential for unforeseen implications. The issue of multiple spouses needed to be considered, as well as the situation of foster children. Unlike the Western view, where children were dependents until they were 21, African culture would interpret a child as a dependent for as long as she/he was living in the same household, irrespective of the age. A common understanding of the term ‘child’ and his/her dependency therefore had to be established.
The substitution of subsidies by tenure grants required clarity and the Department said that the tenure grant was the instrument devised to provide funds to evictees. It would also serve as compensation to those who supplied alternative accommodation to the evicted. There was some confusion over who would be responsible for the maintenance of farm workers’ dwellings, but Members were assured the farmers were still liable, although the amendment granted liberty to the farm dwellers to upgrade their dwellings to humane living conditions, without incurring the risk of possible eviction for having done so.
The Department clarified that there were two types of farm dwellers -- those who had spent their lifetime on the farm and those who had been granted accommodation after the employment by the farmer. The assumption was that the former type had become owners of their dwellings. However, if the latter had spent any money on the necessary upgrading of the dwelling, but had suffered eviction, they would be compensated for by the State.
Other issues raised by Members included concern that making mediation compulsory was necessary; the involvement of the traditional leaders in rural communities; the capacity of the Department to implement the detailed provisions of the Bill; and the problem of illegal land invasions. The general consensus was that the proposed amendments would lead to good legislation, but further deliberation was required.
Mr Mcebisi Skwatsha, Deputy Minister: Department of Rural Development and Land Reform (DRDLR), addressed the Committee on the motivation for the amendments for the Bill. The fundamental resolve was to overcome decades of hardship in South Africa. Its redress was not about obsolete political stories, but about the creation of just opportunities.
Mr Mduduzi Shabane, Director General: DRDLR, said that the 1997 Extension of Security of Tenure Act under review had been one of the first transformative initiatives of the democratic government, in order to regulate and not prohibit evictions on commercial farmlands in South Africa. Since then, there had been multiple calls either for its amendment or replacement by a new Bill, which would prohibit evictions on commercial farmlands in South Africa. Unfortunately, due to the Bill of Rights and property clauses in the Constitution, government could not prohibit, but could regulate how evictions were executed on commercial farmlands.
The amendment was to enhance the existing legislation by establishing institutional arrangements that would strengthen the role of government within civil society and ensure the necessary resources were accessed so that the Bill could be effectively implemented.
Mr Jomo Ntuli, Director: DRDLR, said an important motivation for the amendment was to strike a balance between the rights of the existing parties on the farms, such as the farm dwellers, farm labourers and the farmers. Since the farming industry formed part of an important sector, the Department felt it necessary to create stability and advance it by means of the proposed amendments.
Section 1 – Amendment: Insertion of a definition of “family”.
This had been difficult, because the current legislation did not quite define who constituted the family. Many people were omitted from legal protection, because the notion of family was left open to interpretation. For instance, the Western view was that a child was deemed as a dependent until the age of 21. However, African culture would interpret a child as a dependent for as long as she/he was living in the same household, irrespective of the age.
Section 4- Amendment: Substitution of “Subsidies” with “Tenure Grant”
The Department had to clarify the tenure grant and what it was used for in the Bill. The Department wanted liberty to express what the tenure grants were and how they were aimed at financing alternative accommodation for those already evicted, and compensation to those who provided accommodation.
Section 6- Amendment: Insertion in subsection (2) “maintenance of dwellings”
Farmers did not allow occupiers to maintain or upgrade their dwellings. Most farm dwellers resided in mud houses and certain landowners refused to repair them for the occupiers. Even worse, if the farm dwellers wanted to upgrade the mud houses into proper brick houses, some landowners retaliated by evicting them. The Department was motivating for reasonable or humanly habitable houses for the farm dwellers.
Section 6- Amendment: Insertion of “right to erect a tombstone”
Easily identifiable graves caused controversy. The legislation would provide for tombstones or markings, since these signs served as a dignified form of remembrance, dependent on their cultural practice or religious views,
Section 10- Amendment: To provide for compulsory mediation before litigation.
The current legislation outlined the steps of mediation and litigation, but it had not made mediation compulsory before litigation. It was now made compulsory before the process of litigation, because mediation had always yielded better results. Mediation was also in the interest of the occupiers, as opposed to the brutal battle of litigation, where the winner would take all. The Department wanted to ensure stability regarding this, because costly litigation could be exhausted on several minor issues that mediation could have resolved initially.
Section 12- Amendment: Further provisions regarding evictions.
Should evictions occur, it would have to happen in humane conditions. For instance, in Kwazulu-Natal, an eviction had occurred in such cold conditions that a mother had lost her child. This amendment would prevent evictions in inhumane conditions being repeated.
Chapter IV- Amendment of Chapter IVA
Committees would be created at the local level and would aim to encourage the parties to find solutions first.
The Chairperson asked if the Director General had any further additions.
Mr Shabane said that the parties involved would not reflect the political parties of the committee, but would be comprised of farmers and their organisations -- farm dwellers, farm workers; non- profit organisations and other related organisations, all of which were operational at ground level.
Regarding the Regulatory Impact Assessment (RIA) and its financial implications, the cost borne by the state would be minimal, compared to the improved living standard of the farm dwellers through securing their tenure rights. Despite the theoretical guarantee of tenure by the Constitution, 2.8 million people had in practice been vulnerable to the violation of their rights, evictions and limited access to basic services, with their children being the most affected and insecure. Hence the Bill was meant to manifest democracy to those who worked on commercial farmland. The RIA suggested the state would incur at least R1.1 billion during the remainder of the decade. The current employment on commercial farmland was estimated at just under 700 000 jobs. Should the Bill be properly implemented, the probability of increased employment and better living conditions for those who lived on commercial farmland would be likely.
The Chairperson asked what had been the causes for the delay. The Bill had been published in October 2013, but was being tailored in Parliament only now.
Mr Shabane apologised for the delay, saying the consultation process had proved a longer process than initially speculated. The consultation process had been exceptionally thorough, and had included in-depth engagements with organised agricultural groups, labour unions and civil society. The only exception had been the formal public hearings, which could have been better explored.
Mr Ntuli added that the delay was also due to the time consumed by having had to cancel the contract of the company appointed to conduct the consultations for the first year, because the company had failed. The consultation processes may also have consumed too much time.
Section 1: Insertion of a definition of “family”
Mr S Matiase (EFF) agreed with the Department’s definition of family and dependents, and the rights envisaged for such dependents. However, the amendment required further expansion to include historical and contemporary problems of the perceived definition. An illustration was that a minor, aged 15 or 16, would be sent away from his/her family and home in search of employment elsewhere, because the farmer no longer deemed the minor of the farm dweller as a child or dependent. Therefore the definition should be explicit, that regardless of one’s age, as long as one was dependent on one’s parents, one should benefit from the amendment as holding the rights of a child.
Mr A Madella (ANC) queried the relation of the child within the family definition, specifically that of the foster child. In terms of the Children’s Act, once a child had been removed from an unsafe environment, she/he would first be allocated to extended family members, as an option before foster home/care. Should the allocated family members reside on a farm, the fostered child would not be as legally provided for as an adopted child, based on the exclusion of definition in the legislation. Therefore, a broader context of family, that incorporated the intervention of fostered children, was required.
Mr M Filtane (UDM) noted that in certain cultures, marriage consisted of several spouses. The legislation had seemed to relate inextricably to one main spouse. A technical amendment would mandate the clarification and inclusion of “spouses”.
Mr P Mnguni (ANC) agreed with his colleagues that the concept of family had to be a broad-based notion of family, so that within the courts none of the victims of evictions would be further prejudiced by the justice system.
Mr T Mhlongo (DA) queried the recognition of a spouse in a common law setting, specifically after disputes had occurred. If the evicted had had a “wife” and had replaced her after a dispute, and the new “wife” could also have been separated as a result of conflict, which of the two wives would the State recognise as the wife upon compensation of the evicted?
Mr Ntuli agreed with the Committee, and assured Members that the definition of the family would be a broad-based description to incorporate the highlighted concerns. The issues highlighted by the Committee had been raised in the consultation process, and it was believed by the Department that the term was reflective of such, but due to the discussion, it was clear that the term required further expansion.
Section 4: Substitutions of “Subsidies” with “Tenure Grant”
Mr Matiase asked what the meaning of replacing subsidies with tenure grants was, and what it entailed.
Ms A Steyn (DA) asked what the tenure grants would be used for, and how they would work in practice.
Mr Shabane explained that the difference between the subsidy and the tenure grant was that the Extension of Security of Tenure Act (ESTA) directed the state to make financial provisions for the evictees, but required a proper instrument, to do so. The tenure grant served as the instrument specifically devised to appropriate funds for the farm dwellers/workers.
Section 6: Insertion in subsection (2) “Maintenance of dwellings.”
Mr Matiase questioned the implications for the farm dwellers who had provided for, and maintained, their own dwellings. Had that not shifted the responsibility away from the farmers to provide for, and maintain, the accommodation of the farm dwellers and/or labourers?
Mr Filtane (UDM) questioned the rationale behind the maintenance of the buildings and structures by the tenants, rather than by the owners -- why would that be the case? Since farm workers earned low wages, if they had spent any money on the maintenance of their dwelling, would it be compensated for? If so, would it be a question of refunding by the Department?
Mr Ntuli elaborated that there were two categories of farm dwellers. The first category was comprised of those who were born on the farmland and had continued to reside on it. They should naturally hold ownership of their dwellings and should maintain the right to upgrade their dwelling places as necessary. The second category comprised of those who had found themselves on the farmland as a result of a search for employment, and had been provided with accommodation. The latter may especially require compensation from the State if they had upgraded their dwelling places not merely for the sake of aesthetics, but had carried out necessary renovations. If the farmland dwellers had planted personal crops, it may pose a question of compensation from the State, or the State may have to decide if evictions would occur after the harvesting.
Section 10 To provide for compulsory mediation before litigation
Mr Filtane (UDM) requested clarity regarding the initiation of the mediation process. Usually when mediation was introduced, there was an assumption that one party concerned may be on the other side of the radar and thus lack the desire to co-operate. Therefore, what capacity would be required to enforce co-operation from all parties concerned? Additionally, would there be penalties should a party involved fail to co-operate or transgressed further once the mediation had taken place?
Mr Ntuli explained that once eviction or the threat of eviction was reported to the Department’s offices, officials would be dispensed to explain the rights to those involved -- the evicted and the evictee. At that point, the idea of mediation would be introduced. However, preceding the amendment to the Bill, to have made it compulsory, the Land Claims Court would have questioned whether the task of mediation had been followed first. If not, the Land Claims Court would have initiated it.
Section 12 Further provisions regarding evictions
Mr Mnguni said that the Department had overlooked the omission of a Bill in 2010 which it had failed to implement. Both the government and the Committee had agreed on a certain number of its clauses, to have limited evictions and to address non-legal evictions. It had even entailed a probation report, a local municipality report and an emergency housing report. Why had its failed implementation been omitted with regard to the ESTA?
Insertion of Chapter IVA
Mr Filtane challenged the lack of party representation as merely a cosmetic alteration. To have incurred meaningful and contextual amendments, it was necessary to have approached the fundamental concerns that had provoked the legislation and have addressed it as a collective whole -- civil society, Parliament and the Executive. The proposed amendments would not have drastically altered the situation, because without fundamental confrontation by civil society, Parliament and the Executive, gaps would have continued to exist within the legislation
Mr Shabane said the Committee had perceived the proposed amendments as merely cosmetic.
Mr E Nchabeleng (ANC) addressed the structure of land management and the land committees. Who would comprise the land committees differently to those of the boards? What would the role of traditional leaders be, particularly within rural communities, where the traditional leaders had held the land interests for their communities? What were the implications for the Ingonyama Trust Board (ITB), and how would the newfound committees affect its function? Did the ITB have the authority to evict people from rural Kwazulu-Natal?
Mr Ntuli answered that the farmlands involved were commercial farmlands, and mainly private properties, so the traditional leaders could not met the criteria as Board members, unless they themselves were farm owners.
Mr Louis Louw, Legal Services: DRDLR, added that ultimately the Minister of the Department would decide on the composition of the Board, and his discretion was warranted by Clause 15 (b) of the Bill.
Ms N Magadla (ANC) questioned the accessibility of information by those affected by the evictions. Sometimes the marketing of information had failed to reach ordinary civil society. How could the affected individuals appeal for legal help, should they be oblivious of their legal rights pertaining to the matter?
Mr Filtane questioned the inclusion of farmers in the consultation process, because no indication of incorporating them had been shown. Since they were at the frontline of having implemented the evictions, the farming communities’ view would have been valuable. Additionally, the incorporation of the farming community would have meant the possibility of having enticed the farming community to facilitate evictions in a civil fashion, or to have better imposed ultimatums on them. He was uncertain if the current legislation had provision for penalties. For instance, if a farmer transgressed further by inflicting multiple and/or repeated evictions, would the farmer be penalised in any manner?
Mr Ntuli replied that Section 23 of the Act dealt with offences and repeated offences as well as their consequences. Regarding the accessibility of information to those affected, as well as the farmers in the collective community, it would be aggressively implemented, given the necessary resources. A section specifically demanding the marketing of information did, in fact, exist in the Bill. This had been included because the Department had realised that should a gap exist between the prospective recipients of the Bill and its knowledge, people would then be left to their own interpretations of the Bill, which may result in grievances.
Mr Matiase questioned an objective of the Bill that referred to suitable alternative accommodation having to be provided for by the State at the point of eviction. The concern was the after-effects, because once the eviction had already occurred, the evictee may have then become burdensome to the municipality, through aimless wandering in the streets or creating new informal settlements. If the state merely provided alternative post-eviction accommodation, this may not be in the interest of retaining the farm dweller/labourer on the premises of the farm. The point of intervention by the State may be too late, because the farmers’ pursuit of evicting farm dwellers/labourers had already been exacerbated. Alternative accommodation by the State might ultimately contribute further to the de-populization of rural farmlands and their surrounds as well.
Mr Shabane answered that the alternative accommodation supplied by the State was meant as a last resort. The alternative accommodation would become a solution only once the other resources implemented by the Bill became exhausted. Alternative accommodation would be made available merely after the relationship between the parties was damaged -- an attempt at mediation had been sought after, but had failed, arbitration had failed, and so a court of law would have had to intervene with its verdict. This resolution had been reserved, if it were available upon the onset of eviction, it would in fact be promoting eviction to occur frequently. The purpose of the Bill had been to discourage evictions and negate it from happening. Hence, the long-winded procedures that the Bill would enforce, would actually secure people’s rights.
Ms Steyn questioned the issue of land invasions and how they would be dealt with in practice. Particularly in the Northern Province, cases of land invasions existed in which people had crossed the South African borderline on to farmland and had established dwelling places for themselves. It has proved somewhat impossible to remove those trespassers. Consequently, many farmers had resorted to using their labour, although it may be from an illegal source. How could the ESTA guarantee the rights of all farm dwellers, when in some cases they may have originated illegally? Perhaps ESTA should become applicable with the removal of the illegal land invasions, so further alternatives would no longer be required.
Mr Shabane clarified that Bill on hand was different from the Prevention of Illegal Occupation and Eviction Act (PIE), which would be legislation dealing with illegal land invasion. The primary focus of this Bill was to secure the rights of those working and living on commercial farmland in the legal context. Should trespass occur by land invaders, the expectation would be that the farmers/land owners would exercise their democratic rights by initiating the removal of the trespassers. It would not be necessary for it to become the responsibility of the State. The State had also had instances of land invasions and had thus demanded evictions. For instance, in Kwazulu-Natal, the Durban High Court had recently ruled against the state regarding the eviction of land invaders on state property. The state itself had the responsibility to call for the eviction of those who had illegally trespassed on its property, just as landowning South Africans had the responsibility and accompanying freedom to induce eviction upon land invaders.
Mr Ntuli added that the Prevention of Illegal Occupation and Eviction Act (PIE) was applicable to the issue of land invasions, because the Department had encountered situations in which the farm owners had demanded the eviction of those who had initially trespassed, but the call for eviction had been made around five years later. Therefore, in accordance with the PIE legislation, as soon as a month had elapsed since the presence of an occupier was made known to a landowner, and the occupier had trespassed, it would become consented provision. It was therefore the concern of the landowner to get rid of land invaders.
Ms Steyn questioned the 50/50 policy and its impact, should the farm workers become unemployed. Due to the current drought crisis, many farmers would opt to reduce their workforce, because of affordability. Were there allowances in the Bill that would ensure that the farm workers would remain on the farm, even after they were no longer employed? How would such an issue be dealt with? The challenge that would be posed would be that, should the farm workers continue to reside on the land, but had ceased to work on it, their presence would become a massive social responsibility to someone. Would the State or the farmers carry the weight of this responsibility?
Mr Shabane addressed the issue of drought by noting the separate process followed by the Department of Water and Sanitation and Co-operative Governance. Provinces affected with drought were Kwazulu-Natal, the Northern Cape, the Free State, North West Province and Limpopo, thus the loss of employment of many working on farmlands would be inevitable for. However, he gave the assurance that in spite of the possibility of farm labourers becoming unemployed due to the drought, the tenure security would remain undisturbed and so should secure their livelihood. For instance, workers on cane farms had admitted that if no intervention had occurred currently, they may be out of business next year. Hence, although the farm owners would be compelled to retrench their workers, due to no economic activity, it would not affect the worker’s security of tenure. The lack of productivity on the farms would only reduce the workload and therefore the generation of capital and profits. Lack of productivity should not result in the eviction of the recently unemployed. Therefore, the security of tenure of commercial farmland dwellers would remain constant.
Mr Ntuli said that should the farm workers became unemployed, but remained on the farmland, the state would become liable for their livelihood.
Mr T Walters (DA) questioned the issue of capacity and the resource implications thereof. In terms of the envisaged capacity to deal with the issue of tenure security, there would be tremendous administrative tasks involved. It was not merely a case of creating institutions and mediating rights. Efficiency would mandate the capacity to register the people affected, monitor their rights and record their progress.
Mr Shabane answered that the Department already had the bulk of administration particulars necessary to implement the Bill. A numerical value of people living on commercial farmland had been acquired from a survey conducted in 2007, but may require refreshment. The establishment of the Land Rights Committees and accompanying structures, such as the Spatial Planning and Land Use Management Act (SPLUMA), had ensured proper zoning and so numerical accuracy.
Mr Walters queried the emphasis on commercial farmland in the legislation. The rights of South African citizens could not be separated between commercial farmland, state owned land and communal land. Since the same basic rights would surely be applicable whichever setting they would find themselves in, why had the legislation implied compartmentalisation? Issues of tenure security existed in urban settings and communal settings as well. He further queried the accommodation, or lack of accommodation, of the state as a landlord in the legislation. How would the implementation of the state as a landlord reflect properly in the legislation?
Mr Shabane explained that the Bill was concerned primarily with the protection of the long-term occupiers on farmlands, who had no other alternative place to go to.
Mr Ntuli clarified that the Bill focused on commercial farmland, because other legislation already existed that dealt with other forms of farmland ownership.
Mr Walters questioned the accuracy of the underlying assumptions. Was the legislation dealing solely with general forceful evictions? A distinction could be made between forceful evictions, illegal evictions or those which were voluntary. The extent was based on choice, because certain research suggested that younger South Africans no longer wanted to form part of the rural sector and had pursued, or desired to pursue, urbanisation. Furthermore, to what extent was the voluntarily leaving of farmlands as an alternative choice of lifestyle accommodated for within the legislation? In other words, should someone exercise the freedom of choice by leaving the farmland for the city, would that same individual retain his/her rights cited by the legislation or forfeit it, once she/he reverted to the farmland 30 years or so later?
Mr Shabane explained that the voluntary relocation to urban areas would have meant that the Bill would no longer protect the individual, because the evictees whom the Bill had aimed to protect complied with the definition provided for within the Constitution. It was for those who had, or knew of, no other place to reside or work, apart from the farmland that they came from. It pertained to those who were born and had since lived on their particular farmlands, so the issue of urbanisation was not addressed by this legislation.
Mr Nchabeleng expressed concern for the aftermath of the evictions. He cautioned against the relocation of evictees to arid areas that were unproductive. Once eviction had taken place, it was imperative to relocate the evictees closer to the prime agricultural land that they had come from. Areas conducive for excavating, grazing for animals, wood collection and farming for food should exist in the new places of relocation as opposed to exposing the evictees to the possibility of starvation, because the land of relocation may have been unsuitable for maintaining a livelihood beforehand.
Mr Ntuli said the current legislation stipulated what the alternative accommodation should entail. Additionally, the mandate of the Department was about rural development, so the Department would ensure that any relocation would enhance sustenance for the evicted.
Mr Mnguni appealed for a thorough process of public hearings, and for the consultation processes to reach at least 2.6 million people out of the 2.8 million people affected. Within the constraints of resources or time, it would be essential for the Committee to have provided maximised public hearings throughout South Africa. He advised that the Committee should be separated into groups of two or three and should conduct public hearings on three to six sites per province within two or three weeks in January 2016.
Mr Mnguni questioned the absence of the state’s law advisors, as this was the first time that progress had been made at the national level. Since the law-making process was highly technical, the risk of being the law tested in the Constitutional Court was always immense. However, the aim was to avoid any possible complications, so the need for the presence of the state’s law advisors was paramount.
The meeting was adjourned.
Ngwenya-Mabila, Ms PC
Filtane, Mr ML
Madella, Mr AF
Magadla, Ms NW
Matiase, Mr NS
Mhlongo, Mr TW
Mnguni, Mr PJ
Nchabeleng, Mr ME
Qikani, Ms AN
Walters, Mr TC
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