The Commission for Gender Equity (CGE), the Congress of South African Trade Unions (COSATU), the Legal Resources Centre (LRC), the Agricultural Business Chamber (Agbiz) and the Association for Rural Advancement (AFRA) were stakeholders who made submissions to the Committee on the Extension of Security of Tenure Amendment (ESTA) Bill.
The CGE referred to the introduction of ESTA in 1997, aimed at providing more security of tenure for farm workers. What had been notable was the lack of reciprocity on the part of the farm owners, most of whom still engaged with the best labour experts to advise them on how to circumvent every piece of legislation or measure the government implemented. Current issues resulting in challenges included the role of labour brokers and the casualisation of farm workers, the employment of migrant workers, and the vulnerability of women and children to eviction when a farmworker died, or his services were terminated.
Its main recommendation was that there had to be a shift from bringing in more protective legislation for farm dwellers, and that there should rather be a focus on enabling legislation for fast-tracked land acquisition for them.
AFRA said one could no longer turn a blind eye to the culprit who had failed the people. Many of the challenges and frustrations that were experienced on a daily basis were unfortunately directed at the government departments which had so many programmes and policies. It therefore questioned whether the proposed amendments would achieve the Committee’s intentions. It strongly recommended that the Committee hold a national consultative workshop with farm dwellers, so that the proposals which had been developed by farm dwellers could be directly shared with the Committee and incorporated into the legislation, as the most effective way forward.
COSATU said the Bill was a welcome and needed intervention. This was a very delicate issue because when farm workers lost their homes, they lost their jobs, so the Bill was a step in the right direction. The areas supported in this Bill were the substitution of subsidies with tenure grants by the Department, aspects to further regulate the rights of occupiers, and the importance of providing legal representation for occupiers. COSTATU welcomed the attempts to further regulate the eviction of occupiers by enforcing alternative resolution mechanisms provided for in the Act, and the establishment and operation of a Land Rights Management Board. It was COSATU’s hope that this Bill could assist and provide alternative accommodation to farm workers when they were evicted and to allow farm workers to erect and access graves and tomb stones for loved ones on the farms where they reside as well as to hold funerals there.
The Legal Resources Centre questioned the manner in which the amendment dealt with evictions. It expressed concerns about section 8(2) and section 8(3) of the Act, as it felt that the Bill failed to take sufficient account of the interests of the occupier, and proposed that in order to provide security of tenure and to protect occupiers from the harsh reality of evictions, a competent court should not decide on an order without a probation report. It raised key points regarding the definitions in the amendments, such as for “reside,” “occupier, “dependent” and “family,” as well as the regulation of eviction procedures.
The Agricultural Business Chamber said the organization supported the need for farm dwellers to be protected against illegal evictions in terms of the Prevention of Illegal Evictions Act. However, ESTA had been a controversial piece of legislation since its promulgation in 1997, partly because of poor implementation. AGbiz included all major financiers of primary agriculture in South Africa, so it had a major interest in ensuring that property rights were entrenched in the legal framework of the country. Any dilution of property rights would undermine the ability of franchisers to finance the primary agriculture production sector of the agro-food system, and thus put South Africa at a food security risk. It welcomed the increased emphasis on mediation so disputes could be settled before positions became entrenched and unmanageable. While evictions were an emotive, sensitive and distressing matter, in certain circumstances they were necessary and warranted, and must be recognised and allowed by government within the necessary legal framework.
Commission for Gender Equality (CGE)
Dr Wallace Mgoqi, Commissioner: Commission for Gender Equality (CGE) said a research report commissioned by the Pretoria office of the International Labour Organisation (ILO) in February 2015 had identified key issues surrounding the implementation of the Extension of Security of Tenure Act, identifying that government had on the one hand withdrawn from the agricultural sector at the time, and on the other inserted itself purposefully into the sector by legislating on the relationship between farmers and farm workers.
There were many key issues. First was the labour legislation extended to farm workers who had been previously excluded from either the Basic Conditions of Employment Act or the Labour Relations Act. Secondly, in 2003, a sectorial determination had been promulgated and a minimum wage set. Thirdly, the Extension of Security and Tenure Act effected in 1997 aimed to provide more security of tenure to farm workers living on farms. What was notable was the lack of reciprocity on the part of the farmer owners, most of whom were white. Instead of reciprocating the good will of government, farmers engaged with the best labour experts to advise them on how to circumvent all legislation or measures the government implemented -- and still did to this day. Fourthly, the labour force was restructured, making employees who were previously permanent, casual employees. Fifthly, there was the process of externalization, which was to introduce a labour broker to act as a go-between for the farm owner and farm workers, resulting in a non-existent employer and employee relationship. This meant that any protection that might be extended in legislation to that relationship would be non-existent. Another measure used by farm owners was the use of migrant workers, who were both vulnerable and non-unionized. This enabled them to pay them low wages. The substitution of more highly skilled workers for lesser skilled workers had resulted in less productive workers losing their jobs and making it hard for them to work elsewhere.
There were also measures such as changing labour management techniques, such as a change from payment for time worked to productivity-based remuneration being implemented.
The Commissioner said that when CGE came across individual cases involving farm workers’ and dwellers’ rights, it tended to support them. In the land claims court, Extension of Security of Tenure Amendment (ESTA) matters were heard and more often than not, procedures were just not followed. In the field there was a wide spread of farm dweller rights. Before an eviction was executed under ESTA or the Labour Tenants Act, the Land Claims Court had an automatic review in respect of all eviction orders. The problem was that in some cases, evictions were effected outside the law. A large number of farm workers and dwellers were evicted procedurally and did not know their rights or have the means to access justice. Cases that came before the Land Claims Court were not necessarily gender disaggregated. In this regard, it would be noteworthy to mention that in August 2016, the acting Judge President of the Land Claims Court had adopted Practice Note No 19, which spoke to the importance of judges and legal practitioners in that Court to apply their minds when making judgments as to how they impacted on women and the girl child. The CGE hopes to take this view to the Chief Justice, so that from the Constitutional Court to all the other courts, gender would be mainstreamed.
This was advocacy of a shift from protection to empowerment in respect of land ownership. There could be no guarantee that any legislation closing the gaps of the previous measures was going to yield any results. Instead, rather than the focus being on introducing legislation aimed and protecting the vulnerable farm workers, it should shift to empowering and converting farm workers and dwellers into farm owners themselves in their own rights. There was a case study available that produced evidence showing it was possible for farm workers to become farm owners with State assistance, mentorship and guidance in the use of the land, in a productive, profitable and sustainable manner.
In fact, the facts at Agri Dwala proved that two critical issues needed to be addressed. Firstly, the use of commonages could be a powerful lever to catapult communities into prosperity. This had been an exclusive privilege of white families since the 1800s, when commonages were introduced. In the case Agri Dwala, the success story had begun when they had been allowed to list commonages in the town of Napier, and in 2015 they had made 295 hectares of land available. They had been mentoring them, just as they themselves had been mentored by Kosie van Zyl, their benefactor. In the interim of over 20 years, the original group had acquired two farms, one with assistance from the Department of Rural Development to purchase the farm Jaftas Krans, and the other through Pioneer foods, who gave them R8 million to buy their second farm. Today, people who had been miserable and destitute owned two farms 100%, and their production of wheat, rye, oats and canola was increasing from year to year.
The second thing to learn was that ownership of land was true empowerment. What had happened in Agri Dwala could happen on a large scale if an audit was made by the Department of all communal land.
Most of the commonage land was used by white families, and leased to them over a long period of time. The fact that these long leases were now being used as an argument against farm dwellers who were landless accessing them, was worrying, as no one was questioning the validity of these lease agreements or contracts which had been entered into under the apartheid dispensation. It was worrying that no one was questioning how it could be said that this was in line with the Constitution, or how it was fair to exclude or deny the majority of poor people from enjoying the rights which had been enjoyed over a long period of time from the system of apartheid.
There had to be a shift from bringing in more protective legislation for the protection of farm dwellers, to focusing on enabling legislation for fast-tracked land acquisition by farm workers and dwellers.
There must be an audit of all communal land since the 1800s, which marked the establishment of commonages when white towns, mainly in the old Cape province, were formally established. It was during this time that cities and small towns received surrounding land for free, and ownership of such land was transferred to municipalities, subject to certain conditions.
Thirdly the audit must disclose the full dimension of the land in question, its size, location and its boundaries, to whom it was leased, when the lease was entered into and with whom. The Department must be seen to enforce the law that provided that municipal commonages be made available to poor people for agricultural purposes.
Municipalities must be transparent with information on municipal commonage land, such as who was using it and what was being paid, what conditions were attached to the lease, when was it entered into, and until when it would run.
No lease must be more than five years, so that the land was used on a rotational basis, so that many people got the chance to use the land in their life time.
It must be ensured that where commonage land was used for farming purposes, water and infrastructure was provided. Commonages must continue to be used for agricultural purposes, and not for residential settlements.
The issue of land allocation for poor people who were willing to work the land, had to be fast tracked. The new law on expropriation on a 50/50 basis must be used as part of land reform in the public interest. A national land acquisition fund land must be established, along with revolving loan fund, the former being used to acquire land for the landless and the latter for assisting with the operational requirements.
Ownership was the most secure form of tenure, and large numbers of people now living in shacks would have the means to build their own homes on the land they owned. It was only when the country was on this trajectory, of people owning their own land and accessing their own land for productive purposes, that it could boast not about the number of people who were receiving social grants, but about the number of people it had weaned from dependency to economic independence. Needless to say, all these process, whether they be for accessing commonage land or the allocation of land for ownership, must be gender sensitive. Women and the girl child must be placed at the centre, and not the periphery, in keeping with the equality clause of section 9(3) of the constitution.
Mr M Filtane (UDM) felt that the presentation was spot on in terms of the fact that people should be given land, rather than circumventing the Bill around the real problem. Indeed, ownership was the appropriate way of empowering people. When they went around country, it was clear that farm workers were getting the short end of the stick and government needed a more pragmatic way of solving the problem. The CGE had the Committee’s support, and pragmatic ways to solve these problems must be found. Regarding the suggestion of commonages, one municipality in Howick had indicated that it had run out of land and was sitting with 20 000 people who had come from the farms, and they did not know where to resettle these people. That example highlighted that it may not necessarily be the solution, where the land was burdened with land claims. On the question of leases, the Commissioner had suggested five years, which he felt would not be enough for anyone to be able to develop a profitable business if they were leaning more towards agricultural production. He urged the CGE to re-think a longer period of lease.
Mr A Madella (ANC) agreed that the idea of a five year lease had its challenges. He said there were people in Riviersonderend who were leasing the land from the Department of Public Works (DPW), who were struggling to access funding from banks because the banks said the period of three years was too short for them to make an investment. This could be a challenge if a lease period of five years was the option. The issue of municipal commonages was something that should be explored in consultation, or partnership with, the Department of Cooperative Governance and Traditional Affairs (COGTA). The Commissioner had not touched on the privatisation of land during the transition from the apartheid era to democracy, and this should be also be explored. The one challenge that the Committee had found at all public hearings held was the need to look at access to land through a gender lens. Most places had had issues where a woman had been evicted because she wanted to improve her house on the farm, and this was aggravated by the fact that she was sent five kilometres from the farm where she worked. The Committee would like to see the CGE do something that addressed the gender issues in this whole process.
Ms A Steyn (DA) agreed that the lease period was a challenge and that five years might be too short. Banks would not give a loan if there needed to be an investment in infrastructure. Commonages must form part of the land reform programme as a whole, because commonage was good for people who wanted to start. Many people did want to farm, but once they were on a farm they started to understand the challenges that went with it. One had to reconsider the whole land reform strategy and make commonages part of it. For that to happen, it was important that extension officers were used much more extensively. Commonages should not become a dumping ground. Not all farm workers wanted to be farmers -- most of them they just wanted security, so they must have land either where they worked or lived. From her personal observation, many farm workers got houses in town where it was practical. It was important to raise this because when farm schools were closed it was not always practical to live on farms anymore, because where would the children attend school? If one could not access things like schools and clinics it was difficult if one lived on a farm, so one needed to also look at sometimes getting farm workers to live in towns. However, there had to be a system that where they could not live in town, there had to be a means of getting to town from work, and to get their children to school.
The Chairperson said that in most cases people from farms needed land for residential purposes. Commonage focused on land for agricultural purposes. Had the CGE ever engaged departments such as Rural Development on the research findings as presented today, because these were important points and the relevant departments needed to be aware of this?
Dr Mgoqi responded that there was a sense that the main issue raised had been the question of the leasing of the land. He thought that the question around people on farms needing land for residential purposes could be addressed by the acquisition of land, as the CGE was proposing, because then people could decide what they would use it for. Regarding contact with Department, this was a bit erratic and one would hope that there would be more of a structure in such matters. For example, the Commission had taken up the campaign said of “one woman – one hectare” as it simply wanted to make sure that “one household -- one hectare” was not going to end up marginalising women and benefiting men, as it had been in the past. The research had shown that over a period of ten years, the land reform project had resulted in only about 13% of beneficiaries being women, and the CGE certainly did not want a repetition of that going forward.
It was true that women suffered when it came to evictions, and when the CGE came across cases of either human rights or gender rights violations, it felt there should be a naming and shaming campaign against those farmers who were known to be notorious in committing human right violations and violations of gender rights. Those specific farms should be the first in line when it cames to expropriation because if that land was used to abuse people, then it was appropriate that in the public interest the state should take that land.
Association for Rural Advancement (AFRA)
Mr Glenn Farred, Programme Manager: Association for Rural Advancement (AFRA) said AFRA had started in 1979 to assist communities in the struggle against forced removals, and had continued to work with farm workers. AFRA welcomed these public hearings by the Committee, as it had been able to hear and see the voices of farm workers and people on farms, and had observed the dignity of these farm workers. It had been to the people and seen their anger and frustration. AFRA hoped that the Committee understood that the demands of the people at the end of the day were very simple.
Although this particular process was limited in its technical scope, no one could speak on the security of tenure without addressing the reality of the conflicts of insecurity, vulnerability and historical injustice the people had had to face. No one could any longer turn a blind eye to the culprits who had failed the people. Many of the challenges and frustrations that were experienced on a daily basis were unfortunately directed at departments with so many programmes and policies. As always, the people were correct, and the bureaucrats tasked with protecting and advancing their rights, such as those contained in the ESTA were wrong. One had to confront the reality that there was a failure of rural transformation, and a glaring example, amongst others, was the flight of labour tenants. AFRA believed that farm dwellers and people on farms would be greatly heartened if deeper and further consultations were held more closely to where they lived and worked. It was known from the Committee’s experience in the province of KZN that great difficulties had been expressed by farm dwellers when the hearings were scheduled to be held in Newcastle at night, and the limited opportunity for people to hear or be given an opportunity to be heard. This was of concern to AFRA, and it believed that it was necessary for greater consultations to be held at the local level.
AFRA believed that the South African public should be greatly assisted in understanding how these processes of amendments would relate to the processes and findings and recommendations of a high level panel. The submission made here today followed the written submission made by AFRA in December 2015, and joined itself to the views brought forward by other progressive civil society non-governmental organizations (NGOs) and civil society, such as the Legal Resources Centre (LRC) and the Poverty, Land and Agrarian Studies (PLAAS) institute at the University of the Western Cape.
Mr Farred said AFRA would like to remind the Committee of the 2005 Africon national conference of farm dwellers across South Africa. A key question discussed by the farm dwellers and farm workers had been how they viewed themselves, not in legal terms but how they actually viewed themselves. The following had been said: “Farm dwellers were people who reside on a farm, their parents were born there, they work there and they were the indigenous people on the land before the farms were created.”
In seeking to translate this into the law, AFRA believed that the legislation needed to give effect to the spirit of that formulation. When asked to define what family was to them, their responses were definitions that did not have current expression in the legislation. They were much wider in scope, but more consistent with the reality of the people. Incorporating these ideas would assist the legislation in effecting people’s realities much better. For this reason, AFRA strongly recommended that the Portfolio Committee hold a national consultative workshop with farm dwellers, so that these proposals which had been developed by farm dwellers could be directly shared to the Committee and incorporated into the legislation as the most effective way forward.
AFRA wished to reiterate the alternatives and point out its concerns, particularly the Land Rights Management Board and the Land Committees. Importantly, the relationship between the budget allocations of the departments and these institutions should be highlighted, and this could disclose multiple institutions with potentially overlapping mandates. It seemed as if these new institutions could take over existing responsibilities from the Department, and it was unclear what impact this would have.
The alternatives that had been forward for some time included the need for an assessment of the reasons for the failure of ESTA. Secondly, one should look at the protective measures that governed evictions. Thirdly, the justice system needed to become more responsive to the needs of the occupiers. Fourthly, there should be an assurance that the distinction between labour and tenure rights was upheld, and lastly, a stronger relationship between the Department and the Commission for Conciliation, Mediation and Arbitration (CCMA) would be a beneficial inclusion in the amendment process.
AFRA’s concern was that these amendments would not sufficiently address the realities of the people, and a consultative process which was effective needed to occur.
The Chairperson asked if AFRA, with its proposal of a consultative process, was saying that the Committee should have it before the Bill was passed into an Act, or afterwards? AFRA had said that the public participation process by the Committee was not enough, and should be done at a local level -- was it saying that the Committee needed to have public engagements on the amendment at each and every municipality and did it believe it was possible, looking at the number of municipalities out there? What was meant by the systematic failure of ECTA? What was AFRA proposing with regard to the definition of a family?
Mr Filtane said that in the presentation, concerning the “realities on the ground,” AFRA had given a figure of only 1% representing what they regarded as legal evictions. He asked if this figure applied to the whole of South Africa, and if it was a confirmed figure. When the Department had presented this Bill to the Committee, it had definitely indicated that the amendments were intended to address certain issues, and for AFRA to make a bold statement and to say that the Bill did not contribute needed to be explained please ?
Mr S Matiase (EFF) said that the presentation had made all sorts of allegations, and among them had talked about total system failure, yet at face value it looked like a progressive piece of legislation. If it was AFRA’s observation that ESTA represented a system failure, what needed to be done over and above what the Portfolio Committee sought to do? He pointed out that EFF leader Julius Malema was facing criminal chargers for having breached what was called the Riotous Assemblies Act. The people who had brought these charges against him had realised that the prospects of success were slim, and were now invoking this legislation, where he was charged with inciting forceful land occupation. They realised that invoking the Act under which he had been charged brought back memories from the past, and they wanted to walk away from it. A comparative analysis of such legislation, which had been invoked in 1994, and that which had been passed since, needed to be done, as there was a lack of consistency in protecting and providing security of tenure for those who were vulnerable. When this legislative review had been undertaken, it had not been a knee-jerk reaction but a response in totality to the legislative regime, as it were.
Mr P Mnguni (ANC) said he could understand the context in which AFRA had made its presentation, and could associate with it, despite some contradictions. The fact that some of the bureaucratic reports painted a picture that all was well, but that the people could see through this, was a point that needed to be accepted firmly. He said he had certain issues of regarding the engagements with the communities. The first was the Amajuba District and Howick municipalities cases referred to. said At the Amajuba municipality, the Committee had done its best, but there had been internal contradictions on the ground, and people not wanting others to speak was beyond the Committee’s powers to do anything. In respect of Howick, where the hearing was heard at night, in all the other provinces the hearings were held at the weekend except in certain circumstances, where they happened at night. It could be stated in the Committee’s defence that farm workers were at work during the day, and with the attitudes of the farm bosses it was clearly very difficult to secure workers during the day. Thus he commended the Committee for going to consult at weekends.
In relation to the definition of farm dwellers given by AFRA, once one took such a definition into account there was possibility that it described only 5 % of farm dwellers, leaving the rest vulnerable. The total system failure comment had been a really harsh response and he did not think that they had arrived at such a stage. A contradiction was that on the one hand, AFRA talked about total system failure, and on the other talked about ESTA being an important step towards securing the tenure rights of farm dwellers. He challenged the presenter to prove total system failure in his response.
He said that there had been public engagements, and the public must hear all about the contributions. He was not sure if the issue about Julius Malema in court was relevant, especially because he was not at court in his capacity as a Member of Parliament, but in his capacity as someone who had conducted inflammatory speeches elsewhere.
Mr Farred responded on the definition that some of the farm dwellers had given in respect of family. Participants had listed the following on who they considered to be part of the family: “grandmother, grandfather, mother, father, father’s other wife, step-mother, step-father, brother, sister, brother-in-law, sister-in-law, parents-in-law, daughters-in-law, niece, nephew, uncle, adopted children and cousins.” These were from 200 farm dwellers describing who they saw as family, so when it came to the definitions presented here, these were not AFRA’s views -- this was the definition of the people. It was Parliament’s job to intercede between the people to find a balance in the law and their value, but it must be the people who spoke, and not the lawyers.
In relation to AFRA’s concern around the hearings, he said that they had engaged actively with the Committee’s office and with institutions on the ground, and they themselves had assisted and facilitated contact between the farm dwellers’ committees in Newcastle, and that was appreciated. However, what AFRA was asking was for a number of hotspots mentioned to be consulted, to ensure adequate interaction. It was saying that the greatest priority was to come to an understanding, and reach a point where there was effective implementation of the law as it currently stood.
Farm dwellers were people with a connection to the land, and there needed to be an assurance that they were protected. This spoke to the issue of the Prevention of Illegal Evictions (PIE) and the comparative analysis. AFRA would agree that much work had been done by looking at the comparative impact of different laws. Some of them applied in urban spaces and others to rural spaces, and that was an interesting exercise, but they were not academics. For the purposes of people living and working on farms, AFRA’s appeal again and again was whether they could speak for themselves and be heard.
AFRA was not suggesting total systems failure as a conceptual paradigm of the framework, and believed that ESTA was an important step, it also felt that not enough was being done. The moment was now for this Committee to lead and to intercede between the stakeholders in a time-bound manner and to say, let us understand what has gone wrong, what are the obstacles and where have the failures occurred, so that this was not an apportionment of blame for political purposes, but for the realiation of people’s rights, which AFRA believed was the intention of the law.
If the affected people were to speak for themselves, and speak to the Committee and with the other stakeholders involved, then the legislation could be redrafted so that it reflected their interests first. It was commonly held that ESTA was merely an instruction manual on how to get rid of people on one’s farm. If the law could be used for legalised dispossessions, then there were problems, and AFRA thought the institutional challenges at the level of departments, district officers, land claim courts and so on needed to be looked at.
Mr Filtane said that Mr Farred had hit a raw nerve, and rightly so, about farm dwellers who continued to be evicted and uprooted from their homes. These were another generation of people who were being dispossessed right under the watch of the current government, and that was why he firmly believed that it was an exercise in futility to pass this piece of legislation. It was either the government wanting to deal with the land issues effectively, or they did not. There was no point in beating around the bush. He agreed that ESTA did not help anyone and just reaffirmed the farmers’ position that it was their land and no one else’s. Some legal mechanism needed to be made available to allow for farm dwellers to be able to access this land. He felt that what the proposed amendments were doing was to remind them, as legislators, that they had a duty to either leave the situation as it was, or to tackle the problem head on.
Mr Matiase said AFRA had attributed the statement that there had been a total system failure had been quoted from a different source, and was not its position, but if AFRA did not believe in it, it should not have made reference to it. AFRA should state its views without any fear of contradiction. What had been said by Mr Mnguni was an example of what was called classical psychogenic illusion, because the post colonial leadership and intellectuals wanted to be on both sides and remain on good terms on both sides of the dispute. The land claims issue was an important one and the views that were being expressed here must be known to the public. The ruling party was attempting to be on both sides of the conflict -- they were assuming such a position, and did not want to stick out their heads and stand for the position at hand. It was a classical attempt of running with the hares and hunting with the hounds. The issue of land evictions and the inconsistencies the range of legislation designed to transform farm tenure systems, would be an exercise in futility. The relevance of land evictions from an unlawful occupation of land was precisely that -- trying to be on good terms and to assume a position of neutrality in a conflict situation. If one read the Act, it opened the front door and said that everyone else in terms of ESAT was protected and this the legal instrument that would litigate against unlawful evictions, while it opened the back door for those farmers who continued to subject black farm workers and dwellers to the unbearable situations, and allowed them to go free. As long as this Act was in place, it gave farm owners the right to evict people as they pleased, and the people would forever be evicted from the farms.
Mr Madella referred to the expressed total system failure, and asked whether AFRA was aware of the Right of Tenure impact assessment, which really pointed out all the gaps in the current legislation and the need for it to be tightened. The purpose of the public hearings had been to hear first hand from those directly affected about their experiences. This was so that whether the government was making further amendments or not, what they had been exposed to would not be repeated. The definition around the farm dwellers that spoke about the ancestors and being born on the land, actually fell short. The reality was that people moved, and some were not born on a farm but had a job there, and a definition should not exclude those people.
Mr M Nchabeleng (ANC) said that all who gave inputs were people who were concerned about the gaps left by ESTA, and people had given their input in different ways. Some had listened for points of clarity and taken what they could from the inputs, and what was said was not in conflict with the Constitution and other laws. In his experience in doing these visits, the farm workers and dwellers were not being treated as human beings. The very people who talked about human rights and human rights abuses were the very people who were causing the abuse. In provinces like KZN, some farmers used the labour laws to get rid of workers and remove them from the land. Even departments should be alert, because land was leased by departments to private farmers who treated the people on the land as if they were not human beings. The departments did nothing about this, and just referred it to lawyers who did not act. He had not come across any convictions of farmers for the cruel evictions that were in contravention of the Act.
Mr Mnguni said that socio-political struggles were socio-political and not legal struggles. There needed to be clarity on ESTA being a ‘manual for eviction.’ Eviction would never be promoted as long as there were tools to fight it. ESTA, in the manner that it was sought to amend it, had to ensure that the people of South Africa did not remain victimised and there were no subtle racist attitudes in what was happening to the people on farms. In response to Mr Filtane’s statement on ESTA being an ‘exercise in futility’, he did not understand why his colleague would use so much energy to go out an participate if he felt that way, and he was of the view that Mr Filtane’s comment had indicated some form of “double talking”
Congress of South African Trade Unions (COSATU)
Mr Matthew Parks, Parliamentary Coordinator: COSATU, said the Congress felt that Bill was very important and progressive, with all its positives and negatives, for farm workers’ rights across the country.
It was a welcome and needed intervention. COSATU understood that this was a very delicate issue because when farm workers lost their homes, they lost their jobs, and viewed the Bill as a step in the right direction. The areas supported in this Bill were the substitution of subsidies with tenure grants by the Department, and aspects to further regulate the rights of occupiers and the importance of providing legal representation for occupiers. COSTATU welcomed the attempt to further regulate the eviction of occupiers by enforcing alternative resolution mechanisms provided for in the Act, and the establishment and operation of a Land Rights Management Board.
COSATU hoped Land Rights Management Committee would help to identify, monitor and settle land rights disputes before they escalated. It was also hoped that this Bill could assist with providing alternative accommodation to farm workers when they were evicted, and allow farm workers to erect and access graves and tombstones for loved ones on the farms where they resided, as well as to hold funerals there. This might seem like a small technical issue, but the eviction of many farms workers had resulted in them not being able to access the graves of their long lost relatives.
With regard to the houses on farms, its was appreciated that the Bill was trying to cover both sides, one being to compel the farm owner to maintain farm workers’ houses and ensure that they were in a decent condition, and that the farm workers would also be empowered to make repairs to the houses accommodating them. It was also appreciated that the dependents and family were protected with the expansion of the definition of family in this Bill. It was also important to note that the provision of legal representation, mediation and arbitration would go a long way to assist in resolving cases, especially those where farm workers had frequently been abused and had their rights violated. COSATU felt that this was a badly needed intervention and supported it strongly.
COSATU had three areas of proposed amendments to the Bill. It was important to state that it had participated with the Department in the negotiations around the Bill in 2014, and had had quite extensive engagements. Some agreements had been made following these negotiations, but unfortunately between then and now, the Department seemed to have forgotten those agreements, which had been quite alarming. However, the Department had assured COSATU that this was accidental, and that they were not backtracking.
The proposed amendments were:
Land Rights Management Board
- The board should be made of 50% women and 50% men, who represented the communities’ interests and those affected by this Act;
- It should also be made of occupiers, land owners and organised labour. This would help with the identification of issues on the ground and reaching consensus. COSATU was hoping that these boards would be on the ground to help identify probelms before they exploded, like had been seen in De Doorns.
Limitation of evictions
- The major part of the proposed amendments was around the limitation on evictions. There had been a very progressive Bill drafted by the Department in 2010, the Land Tenure Bill and Title Rights, but which had not been proceeded with.
- In identifying ten progressive clauses around limiting evictions, the first had been around an opportunity for genuine consultation with those affected, and adequate and reasonable notice for all affected persons prior to the scheduled date of eviction.
- Information must also be provided on the proposed evictions, and where applicable, on the alternative purpose for which the land or accommodation was to be used, to be made available in reasonable time to all those affected.
- When groups of people were involved, for the Department’s officials or their representatives to be present during evictions, and all persons carrying out the eviction to be properly identified. This was aimed to protect the most vulnerable and marginalised farm workers, as most of them did not speak English.
- Evictions should not take place on days of bad weather or at night, unless the affected persons consented otherwise. It had been seen that many farm workers, with their wives and children, were thrown out during a storm or at midnight.
- There were also two very important parts about evictions, one being that they may not result in persons affected being rendered homeless or vulnerable to the violation of their human rights. Secondly, courts should not be allowed to make an eviction order in the absence of a probation officer’s report and a report from the local municipality on emergency housing.
- The provisions for legal remedies and, where possible, the provision of legal aid to persons who were in need of it in order to seek redress from the courts. This was mainly because farm workers could not afford legal representation.
Mr Parks said COSATU appreciated that the Department was confined by the legal definitions of dependents. However, it looked at the definition of family from viewpoint of the average farm worker. They had given examples where they might have been taking care of their nephews and nieces, or elderly family members who were too old to take care of themselves. If the approach to the definition of family was too legalistic, especially around the adoption of children, it could create problems because when a farm worker’s brother or sister died, they took care of the child without going to court to adopt him or her.
Thus the three proposals raised today were that member occupiers be represented at the board, that limitation clauses on tenant evictions from the 2010 Bill be considered, and that the courts expand the definitions of family and dependents.
COSATU was in support of the passing of a progressive Bill, and asked the Committee to consider the speeding up of its adoption. The Department had had a very progressive hotline around farm evictions, which allowed farm dwellers to phone in and report evictions, and it was linked to Legal Aid. said Unfortunately, that hotline had been out of service for the past few months. This had been raised with the Ministry and the Department, and it was still not working. COSATU had raised it here so that the Committee could squeeze the Department to take action and fix it.
Mr Filtane pointed out that significantly, COSATU had said that the Bill was in the right direction, and it could not have been anymore accurate. The Bill was going in the right direction, but like he had said, not showing to have a destination. Mr Parks had opened with an appetising couple of points referring to the economic context, but nowhere else did he see him quoting any proposed amendments to the 1997 Act, which would change the economic situation of the farmers. Typically, COSATU was an employee organisation and they were not business people, and it was understandable that they could not speak contextually about business.
He asked how COSATU saw the Lands Right Committee accessing the intended beneficiaries, given the fact that time and time again during the public hearings the Committee had been told that farmers took pleasure in locking the gates, whether it meant locking them in or out. How would the Bill create a better economic climate for farm dwellers and workers?
Mr Matiase said the Committee appreciated the presence of COSATU, as this had given it an opportunity to understand the origin of COSATU’s excitement around the Bill being progressive. He wanted to know the source of the information on which it had based its findings. In 2000, the Portfolio Committee on Land Affairs had observed that it was nearly impossible to attach a figure to the total number of evictions taking place on farms. Secondly, the South African Human Rights Commission had made a similar observation in 2008 and had said that there were very few statistics available to assess the advancement and protection of land rights. COSATU needed to give the Committe hints on the source of their information for them to be able to conclude that the Bill in its current form was progressive. Was this with the benefit of hindsight, that the 2001 submission and resolutions arising from those submissions had been implemented?
Mr Madella said pointed out that one of the issues that had come to the Committee’s attention during the public hearings, was the fact that when there was a change of owner, the new owner would come and state that those working on the farms were no longer needed to work there. Did COSATU have anything to say about that?
Mr Mguni said he thought COSATU was spot on in its presentation where it talked to the draft amendments, and that they had applied their minds. The Committee should really debate as to why they would not support the call for a 50/ 50 gender split. Most of the victims were women and children, and this required a gender perspective in the structure of the interventions. The Committee’s eyes had been opened to a glaring omission.
He questioned COSATU’s statements that evictions should not take place in particularly bad whether or at night, and that they should occur unless the affected persons’ consented. He thought there was trouble there and the concession COSATU wanted to make might be problematic. If they had said they were proposing that evictions were not to take place during bad weather or at night, full stop, that would have been better. It was not an eviction or forceful eviction if the person affected moved out on his own. If that person had consented, then it would have been a relocation. The next point that he agreed with was the point that stated, “provision where possible of legal aid for those who were in need of it to seek redress from the courts,” but he thought that the use of the term “legal aid” created the impression that reference was being made to the legal aid sought before, like the one from the Legal Aid board.
Mr Parks responded by stating that Mr Mnuguni had captured COSATU’s thoughts by saying that their destination was socialism. If the farm workers were being evicted tomorrow, one could not go there and say, hold on, there was a relevant ESTA Bill, with all its positive and negative points. He agreed that it was better than what it was before, as it gave tools to the government to assist farm workers, and it gave tools to farm workers to help themselves. It was a progressive tool to assist everyone, because it even assisted farmers to help regulate conflict situations. It was not a perfect Bill, but it was a progressive Bill. It benefited farm workers, including children.
On the point of access by the Board, the Act should give them full access, so that they did not have to go to the court to get a warrant. Regarding the consent issue, he agreed that that should be removed because there could never be a balance of power between a farm worker and the farmer, who was more educated than the worker.
This Act was not going to resolve the issue of the economic climate. The real issue was about land reform. COSATU was not popping the champagne about the Bill, but were happy about it because it was going to provide what farm workers had asked for. The proposed amendments were going to be of real help to farm workers, such as the issue of legal representation, the definition of family and so on. In terms of the eviction statistics, COSATU could provide some research data it had collected over the years from PLAAS and the LRC, which had given good information which had been useful.
Legal Resources Centre (LRC)
The Legal Resource Centre (LRC) said that a written submission had been made in January 2016, and the purpose of the submission today was to outline the main points that had been highlighted. In summary, the LRC had identified that the definitions proposed and provisions introduced, and they had been considered. However, it questioned the manner in which the amendment dealt with evictions, and it hoped that through this Bill consideration would be given to the submissions which would inform some changes.
The LRC was also concerned about section 8(2) and section 8(3) of the Act. It felt that the Bill failed to take sufficient account of the interests of the occupier, and proposed that in order to provide security of tenure and to protect occupiers from the harsh reality of evictions, a competent court should not decide on an order without a probation report. The issue of the probation officer’s report was important, and no matter at court should be heard without this report. This problem, as well as the lack of measures taken to ensure the enforceability of section 23, which dealt with the criminal offence, had been outlined.
The LRC had identified ways in which section 23 could be enforced by the state from the stage where the matter was reported, to the stage where it was prosecuted. The question around the Land Rights Management Board, as well as the Committee’s concerns, related to the purpose of the Board’s function across the country in practical terms, and whether the committees established would work parallel to the already existing land reform committees. The LRC had also considered the proposed tenure grants, which may have the effect of increasing resources for land owners, but not assisting the occupiers. It seemed as if the proposed tenure grants sought to replace the subsidies which had been previously made available to occupiers upon application.
Its submissions had addressed the new obligations and requirements imposed on occupiers to maintain their own dwelling structures. Instead of providing greater security and providing an extension of the occupiers’ rights, in order to address the imbalances of the past, the amendment Bill in this regard required occupiers to “take reasonable measures” to maintain the dwelling structures occupied. The submission had further considered this requirement in light of the prejudice occupiers had experienced by not being granted the opportunity to improve their dwelling structures. The LRC had also revisited the proposals made in relation to the issue of the national land tenure security summit of 2001, where terms of reference had been established. It had revisited them to remind the Committee about all the resolutions made then.
Key points raised by the LRC covered the following definitions:
- The term “reside” or “residence” was currently not defined in ESTA and such lack of definition had resulted in several difficulties encountered by occupiers faced with the threat of eviction.
- The term “reside” had, however, recently been dealt with in a Land Claims Court judgment, which had interpreted the concept of residence. This was determined in the case of Mathebula & Another v Mr Harry, and had provided clarity. The judgment said that the term “reside” was not limited to the mere physical presence at a particular place at a given point in time. Furthermore, when “the right of residence was considered to exist in terms of the legislation, certain other associative rights also come into being.”
- The meaning of “reside” as used in section 6(2) (DA) of ESTA should not depend on mathematical formulas, such as how many days in a week a person spent at a particular farm. It should also not depend on the subjective views of the owner of the land. The judgment said that when determining whether a person was a resident, there should at least be a degree of physical presence, but this need not be continuous as it I could be interrupted by different factors.
- Where this was the case, there must at least be an intention exhibited by the conduct of the occupier to return on a permanent basis to the residence. The proposed amendment intended to insert the term “reside” in ESTA. Clause 1 (H) of the amendment Bill stated that “reside” meant to live at a place permanently, and residence had a corresponding meaning.
- The proposed amendment was in LRC’s view not favourable to occupiers, as it was too narrow. It provided protection only to occupiers who were residing on the farms on a permanent basis. The proposed amendment may be interpreted to mean that if an occupier was not on the farm on a daily basis, he or she did not reside on the farm on a permanent basis. The LRC was of the view that the proposed definition would do more harm than good if inserted in the ESTA.
- Where the term occupier was defined in ESTA, the LRC had noted that the proposed amendment made minor amendments and removed only the word “has or” from the definition of an occupier in ESTA.
- The LRC did not see this as being a good change, and had identified that paragraph C of ESTA limited the potential scope of ESTA’s protection. In terms of paragraph C, read together with the regulations of ESTA, a person who had an income in excess of R5 000 did not qualify to be an occupier in terms of ESTA. This amount had never changed since 1998.
- The LRC proposed that the Department should consider adjusting the ESTA regulations by increasing the amount from R5 000. It did not believe that the removal of the words “ had or” from the definition of an occupier in ESTA would strengthen the right of occupiers of farm land.
- The term “dependent” was not defined in ESTA. The proposed amendment intended to insert the definition of “dependent” into ESTA. The word “dependent” was defined in the Bill as follows: “Dependent means family member to whom the occupier has a legal duty to support.”
- This had come up In earlier discussions and it was common practice in African culture that an individual was not only a dependent for the duty of support, but could constitute a dependent for various reasons, such as moral, religious, and social support, and for preserving family relations.
- Therefore, the proposed definition of “dependent” posed problems, particularly within the African culture.
- In the view of the LRC, the inclusion of the proposed definition of “dependent” in ESTA would not necessarily serve the purpose of strengthening or protecting the rights of farm occupiers. It should be noted that even though the term “dependent” was not defined in ESTA, it appeared in some of the sections in ESTA, so as it stood there were occupiers who were regarded as having “primary rights status” and those who were regarded as having “secondary rights status”. Taking into account the history of South Africa, most of the occupiers who were having secondary rights status were women and children.
- Women were previously not employed on farms, because farm labour was regarded as hard labour. The farm owners preferred men instead of women, and as a result men acquired primary rights status. This classification of occupiers had created a number of problems. Once the occupier who was regarded as having the primary rights status (mainly men) died, his/her spouse (mainly women) was given 12 calendar months’ notice to vacate the farm.
- The proposed insertion of the definition of “dependent” in ESTA was unlikely to solve the problems faced by women and children, especially insofar as their eviction from farms was concerned. It was the LRC’s opinion that the proposed definition of a dependent actually negatively affected farm workers' rights to family life, as family members of farm workers were not also defined as dependents. It proposed that the definition of “dependent” be removed from the Amendment Bill, as it in its current form it would not serve the purpose of providing protection to occupiers.
- This was also currently not defined in ESTA. However, it appeared in some of the sections of ESTA. The proposed amendment intended to insert the definition of the term “family.” Clause 1 (c) of the Amendment Bill stated that: “‘family’ means “the occupier’s spouse, including a spouse in a customary marriage, whether or not the marriage was registered; child, including an adopted child, grandchild, parent and grandparent, who were dependents of the occupier and who reside on the land with the occupier.” This proposed definition was unduly limited, as it did not cover partners who were living together but werenot married.
ESTA was enacted with the purpose and intent of regulating eviction procedures of farm occupiers in the spirit of section 26 (3) of the Constitution, which provided that “no one may be evicted from their home or have their home demolished, without an order of court after considering all the relevant circumstances.” No legislation may permit arbitrary evictions. ESTA was enacted to ensure that this particular constitutional provision was promoted and protected, but despite the legislation, there had been a great number of evictions. Many such evictions had not been legal, as many landowners had failed to follow the correct legal procedures for eviction, as set out in ESTA. Even in instances where the eviction was lawful, occupiers had had little or no legal representation, to ensure that in the event of a threat of eviction order issued by the court, the court considered a safeguard for the occupier in the form of the provision of suitable alternative accommodation. The LRC therefore agreed with the contention in the explanatory memorandum to the Amendment Bill, that by making it easier to evict occupiers, ESTA in its current form had failed occupiers in ensuring that they had security of tenure and that their rights were adequately protected.
The LRC had noted that the Amendment Bill left section 8(2) and 8(3) of ESTA unaffected.
As currently worded, the LRC respectfully submitted that these sections conferred inadequate procedural protection on occupiers who were also providing labour on farms, who had been dismissed from employment. It was aware that other civil society organisations had in the past proposed an amendment which would require the court hearing an application for eviction, to have proof that the labourers’/workers’ rights at the CCMA had been fully explained and the labourer/worker had been given written notice which recorded that if the labourer/worker signed a settlement a CCMA settlement, this would result in a termination of rights under section 8(2), and this carried a consequence that eviction proceedings would follow. The LRC maintained that the Department should take this opportunity to ensure that stronger procedural safeguards were put in place to address the concerns raised by civil society. Such safeguards should take account of the rights of farm labourers to have a fair court hearing or arbitration hearing at the CCMA, in which they fully understood the proceedings of such a hearing and also its consequences.
LRC proposed that sections 8 (2) and 8 (3) of ESTA should be amended so as to confer greater protection to farm labourers or farm workers who were also farm occupiers. Further, that such provisions should not, as it was in its current form, be heavily reliant on the provisions of the Labour Relations Act, for determination of the eviction of the occupier. The determination of eviction should be made by the court upon application by the land owner against the occupier. LRC urged that section 9(3) of ESTA should be amended so that it was expressly said that a court could not grant an ESTA eviction order in the absence of a probation report and a report from the local municipality on emergency housing. The hearing of an eviction application/action in the absence of a probation report was an issue that urgently called out for legislative certainty.
The lack of preparation of a probation officer’s report revealed a lack of commitment and seriousness of the Department and its officials towards the lives of farm occupiers. The LRC proposed that the provision of a probation officer’s report should be mandatory before a court granted an order for the eviction of a farm occupier. It was submitted that such reports were important to ensure that the courts consider the provision and availability of alternative accommodation of the occupiers as a result of an eviction. The report also assisted the courts to consider the constitutional rights of the occupiers.
Eviction orders which may result in an occupier being rendered homeless should not generally be granted without alternative accommodation being offered by the local municipality. In the 2010 draft, there had been eight limitations on evictions. It had been noted that in the 2013 draft, the limitations had been excluded. The LRC proposed that the Amendment Bill should provide that in each and every eviction application/action, the local municipality and the Department of Rural Development and Land Reform must be cited as necessary parties.
Advancing women’s and children’s rights: Eviction procedures
The LRC had noted with regret that the ESTA Amendment Bill did not take the opportunity to advance the protection of women and children of an occupier who fell within section 8 (4) of ESTA, as section 8(5) had been left intact. It was the LRC’s submission that women and children suffered great injustice and prejudice upon the death of the male occupier. ESTA, in its current form (in terms of section 8 (5)), required spouses and dependents of male occupiers to vacate a farm upon expiry of a 12-month period. This particular requirement in ESTA had left many women and children in an extremely vulnerable position as they were faced in many instances with the reality of homelessness after the expiration of the 12-month calendar period as legislated, or earlier if a breach occurred. In order to advance women and children’s rights, it was therefore proposed that these particular provisions in ESTA ought to have been removed by the Bill or substantially amended to provide for greater procedural protection. In the absence of this, it was submitted that section 8 (5) of ESTA in its current form, was discriminatory towards women and children, and amounted to a denial of their security of tenure. Spouses and children of occupiers should be treated as independent occupiers. Their right to reside should not be linked to their spouses.
Improvement of dwelling structures by occupiers
The LRC said that on the one hand, land owners felt that as owners of land, they had a right to enjoy undisturbed use and ownership of their land. On the other hand, occupiers felt that as occupiers of land, they had a right to security of tenure, including the renovation and construction of new houses on land where they resided. ESTA was silent on this issue. The LRC therefore urged the Department to take this opportunity to add to the Amendment Bill a section that would give farm occupiers the right to renovate their existing structures. It was submitted that such inclusion would be in line with the provision of section 26 (1) of the Constitution, which provided that everyone had the right to have access to adequate housing.
The Amendment Bill, however, imposed a new obligation on farm occupiers to “maintain their dwelling structures”. In terms of clause 6 (2) (dB), occupiers would be required to maintain their own dwellings. This particular provision appeared to be imposing an unfair burden to occupiers, who also provided labour on the farm under the employ of the farm owner. The cost of maintaining such dwellings has been unfairly imposed on the occupier, without any clear indication of the way in which such requirement would be implemented. It was therefore submitted that this requirement imposed should be removed from the Bill, as it infringed on the rights of occupiers to decent living conditions which ought to be provided by the owners/employers.
Land Rights Management Board and Land Rights Management Committees
The LRC noted that the Amendment Bill had introduced the Land Rights Management Board and Land Rights Management Committees. It was of the view that there had been little or no public consultations conducted on the establishment of the board. The board had been given broad powers without any guidance or structured discretion to regulate the exercise of those powers. It was inconsistent with the rule of law for legislation to provide for broad discretionary powers containing no express constraints, as those who were affected by the exercise of the broad discretionary powers would not know what was relevant to the exercise of those powers, or under what circumstances they were entitled to seek relief from an adverse decision. It proposed that the Portfolio Committee take the following into account when considering the proposed establishment of the board, as provided for in the Bill:
- The practical measures which would be employed in ensuring that the board served its functions had not been outlined.
- The proposed amendment stated that the board would, amongst other things, “create mechanisms for the provision of legal assistance and representation”. The motivation for this function of the Board was unclear. The Department already had an existing legal department and a panel of attorneys who were appointed to handle all land-related legal disputes. Therefore, would the board work with the already established entities? Would it provide support to the existing entities? Or would the functioning of the board in the provision of legal assistance be considered a separate form of assistance?
- There appeared to be no proper system or plan in place which would inform the Minister and Director General on matters relating to the accountability of the Board and how it executed its role and duties.
- It was submitted that the requirement of an “appropriate qualification” for a board member was vague and problematic. It was submitted that a mere requirement of an “appropriate qualification” was very broad, and not a sufficient description for a qualifying member
- Furthermore, in terms of clause 15C (1) (d) of the Bill, the board would “provide for the mediation and arbitration of land rights disputes arising from the application” of ESTA. Section 21 (1) of ESTA provided that “Any party may request the Director-General to appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute...” The inclusion of section 15C (1) (d) would amount to an unnecessary repetition. Furthermore, the LRC was aware that section 21 (1) of ESTA had not yet been adequately utilized, which was concerning.
Other land reform measures and land use planning
The LRC had noted that the National Development Plan (NDP) proffered the development of half a million hectares of irrigation farms, the establishment of a new class of small farmers, and one million new jobs. The relationship between the Amendment Bill, the land rights committees and land use management and planning instruments was not apparent. The tenure of farm dwellers as a category of vulnerable persons under the bill of rights must be linked to proper planning.
Land tenure grants
The Bill introduced “land tenure grants,” which would replace the “subsidies” which had been made available to occupiers in accordance with the provisions of section 4 of ESTA. It appeared that the reason for the removal of the word “subsidy” could be that the tenure grants would be made available to the farm owners as opposed to the occupiers, although there was no clarity provided in this regard. The quantum of the new tenure grants had not been defined, nor had there been qualifying criteria provided for their being made available. In the circumstances, the provision empowered the Department to pay money in the form of a grant to either farm owners or occupiers, or to both, but there was no guidance on how much should be paid, when it should be paid and furthermore, under what circumstances the grants were to be paid.
The tenure grants (from the national land reform budget) would be paid to farm owners to develop their basic services. It was submitted that this amendment reverted to the situation when the state used to subsidise farmers for their farm labour in terms of basic services and housing, without leveraging for better rights for the workers. The issue of the responsibility for alternative accommodation was left unclear in the Amendment Bill. It was submitted that the proposed tenure grants would not serve the interests of the occupiers in ensuring long-term security of tenure. The previous subsidy grants, although minimally utilized by the Department, ensured better measures of protecting the interests of the occupiers and ensured that they acquired land and had tenure security.
It had been noted that the Bill left section 23 (5) (i), which referred to the term “Attorney General”, unaffected. It was well known that this position or title no longer existed in South African law. It was thus submitted that the term “Attorney General” be changed and substituted with the term “Director of Public Prosecutions”.
During the land tenure summit held in 2001, civil society organisations had proposed that a national task team ought to be established. In terms of the proposal, the task team would have the following terms of reference:
- The Department should acquire land for ESTA evictees, and evicted farm occupiers must be explicitly prioritised in the implementation of land redistribution;
- The Department should clarify how its budget would be apportioned to provide evicted ESTA occupiers with access to land on which to base a livelihood;
- It must ensure that the justice system becomes responsive to ESTA. The Department must work with the various state Departments of Justice, public prosecutions, the Commissioner of Police and the Legal Aid Board, in order to provide training on ESTA.
- It must ensure that the distinction between labour and tenant rights was upheld, working with the Department of Labour and the CCMA.
- It should oversee the establishment of a monitoring and evaluation system for ESTA and link this to an alternative dispute resolution (ADR) to intervene in threatened evictions;
- It must ensure that the Department monitor settlement agreements which appear to be contrary to ESTA through the section 9 (2)(d) notices, and taken up with CCMA structures;
- Judgment applications in relation to common law evictions should be funded by legal aid as a priority;
- Section 23 charges should be captured on the national database of the SA Police Service (SAPS) and decentralized;
- ESTA officers should be required to proactively intervene when section 9 (2) (d) notices are served, as a two-month probation period was given in terms of the Act. The Department should clarify how it intended to provide for evicted occupiers who had not been provided with suitable alternative accommodation. Notice periods for termination of employment and for ESTA were distinct requirements governed by different pieces of legislation, protecting different rights. Notice periods must never run concurrently;
- Unfortunately, the comments made by civil society organizations in 2001 appeared not to have been considered or taken into account in the Amendment Bill .
Mr Filtane said that the Committee welcomed the proposed definition of residence in the way which it had been suggested because for African people, residence was not a must. This was the reason why the Committee believed that people should not be regarded as occupiers of places at the pleasure of the owner, but that they should be regarded as homes. South Africa was at liberty to create its own definition of occupier to address its unique problems. It was important to think outside of the box and not just follow the generic meaning. Secondly, the definition of occupiers was limited, where it was limited by the income level of R5 000, because it had the potential of influencing the person who paid income to the occupier. It was thus potentially discriminatory, because if one earned an income only from the farm owner, he was in the best position to simply put that worker above R5 000 in order to play him off site. Therefore it had serious potential of being unconstitutional. If one looked at clauses 9(1) and 9(2) of the constitution, equality before the law was guaranteed and thus one should not be talking about primary and secondary occupiers. It was not clear why the Department had chosen to go with s25(6) instead of 25(5). The Committee submitted that this condition of ‘legally insecure’ did not exist -- what did exist was ‘illegal insecurity.’ This needed to be classified in terms of whether it was a law of general application, and if it was specifically designed to assist farm dwellers, then there was a need to legislate in context.
In terms of processes, how did the LRC expect a farm worker or dweller to know who was an expert, as contemplated in 16(c) (1D), read together with 21(1)? One should view this whole piece of legislation against the legal maxim, which said that ignorance of the law was no excuse because the attorneys that would be employed by the farmer would say this to the magistrate, and he would agree and say that it was for the farm dweller to know. This Bill entrenched the suppression of the rights of the farm dwellers.
Mr Madella said that the LRC had raised concern with regard to s8(2)(30 of the original ESTA, which had been left untouched. These related to a dismissal which resulted in eviction. He asked what LRC proposed should be done? What was the LRC’s view with regard to the definition of family as proposed by COSATU and AFRA? With regard to the issue of occupiers’ income levels, the LRC was saying that it was not in any way amended in this current bill and that the figure had to be reviewed -- what was its proposal?
Mr Nchabeleng said the Committee needed the LRC to propose amendments, because after this process the Committee was going to sit and apply its minds to the presentations and see which proposals were line with what they wanted to amend.
Mr Mnguni felt he needed to clarify that this was not a technical committee which listened for technical submissions and made criticisms. The Members were politicians too, and they did not expect the LRC to change their opinions. The idea was to facilitate a conversation. He asked the LRC to go back and check, as legal people, what should go into the principal Act, and into the regulations. He wanted to know why it had not suggested that evictions be done away with? There was also a need to reflect back on women and children, especially around evictions when the main labourer died. He thanked the LRC for alerting the Committee to this point. He asked it to clarify the point on the right to renovation, and the financial burden?
Mr Thabiso Mbehense, LRC lawyer, responded that there were sections of the Act which had not been amended, such as section 8, and there were many more. When there was as ESTA eviction in the magistrates’ court, the rules that were used were those of the high court, as there rules for the magistrates’ court had not been regulated. With regard to the issue of the board, the LRC was worried about the fact that the Minister and Director General would oversee the Board, because one knew that they were both very busy, and it was the LRC’s opinion that they would not be able to oversee the functioning of the Board.
The LRC knew very well that it was important to say farm workers must be able to maintain their dwellings, but why could one not say in the legislation that they must be able to put up new structures? With regard to women that had to move after 12 months, according to the LRC, in terms of ESTA the occupants were not treated the same. What about those who had been occupiers since before February 1997 -- why could not all occupiers so defined be treated the same, no matter if one was a woman, or child?
Section 8(2) that had been left untouched was also as a result of the occupiers not being treated the same, because in terms of section 8, if a worker’s employment had been terminated, that alone was the termination of their rights.
Regarding the alternatives to the R5 000 issue in the statute, the right to reside must not depend on an income -- if a worker resided on a farm, then he resided on a farm. The LRC was of the opinion that that provision should be scrapped.
With regard to the prioritisation of land for ESTA occupiers, in KZN there were farms that had been bought by the Department, and some of those farms were not occupied and by saying that the occupiers should be prioritized, why were some of those farms not being used to accommodate occupiers. Inrelation to the question around doing away with evictions, one needs to be careful of that because the Department of Land Reform currently was buying land on behalf of restitution claimants, what if someone was residing on their farm? They would not be able to evict that person. Section 25 of the constitution was important because it protects the rights of land owners.
Agricultural Business Chamber (Agbiz)
Mr John Purchase, CEO: Agbiz, said the organization was a voluntary and dynamic association of agribusinesses with the mission to negotiate and position for a favourable agribusiness environment, so that members could perform competitively and profitably, and prosper as a result. Its function was also to ensure that the agribusinesses played a constructive role in the country’s shared economic growth, development and transformation and to create an environment in which agribusinesses of all sizes and in all sectors could thrive, expand and be competitive.
In principle Agbiz supported the need for farm labourers and/or occupiers to be protected against illegal evictions in terms of the Prevention of Illegal Evictions Act. However ESTA had been a controversial piece of legislation since its promulgation in 1997, partly because of poor implementation.
Agbiz members were generally not farmers, but included all major financiers of primary agriculture in SA and as such, it had a major interest in ensuring that property rights were entrenched in the legal framework of the country. Any dilution of property rights would undermine the ability of franchisers to finance the primary agriculture production sector of the agro-food system, and would thus put South Africa at a far greater food security risk. South Africa’s total farm debt was in excess of R160 billion and much of the land used as collateral by the financing institutions would lose value if property rights were undermined, and would put these institutions at greater risk.
Agbiz had participated in the three-year National Reference Group consultation process following the publication of the Green Paper on Land Reform in 2011.The policy on Land Tenure Security in Commercial Farming areas and the ESTA Amendment Bill were, among others, the outcomes of this process. The indicated policy had been comprehensive and identified key challenges regarding the land in commercial farming areas and acknowledged shortcomings in the implementation to date. It also recommended incentives for property owners to provide services to farm workers to improve farm dwellers’ rights.
Agbiz had also participated in the National Economic Development and Labour Council (NEDLAC) dialogue on the Bill as part of its business delegation, and all the points of contention had been thoroughly debated. While some amendments had been agreed to, there were still a number of areas of disagreement that had been tabled in the NEDLAC report to Parliament on the matter. This submission would focus on those areas of disagreement, as well as on the subsequent amendments made to the original Bill.
As a general comment, Agbiz welcomed the increased emphasis on mediation and recognised the significant role professional and objective mediators could play in settling disputes before positions became entrenched and unmanageable. Sufficient funds would have to be made available to remunerate and secure the services of professional mediators. Such mediation would need to be expedited within a certain timeframe in order to limit costs and the bureaucratic process. The proposed 30-day timeline was critica, as deals could be scuppered if not enacted.
While eviction was an emotive, sensitive and distressing matter, and Agbiz recognised this, it should also be acknowledged that evictions in certain circumstances were necessary and warranted, and must be recognised and allowed by government within the necessary legal framework. Agbiz wished also to refer the Portfolio Committee to the July 2015 ILO report entitled “Farm workers’ living and working conditions in South Africa: Key trends, emergent issues, and underlying and structural problems,” as it dealt extensively with the issue of evictions and tenure security, and highlighted a number of tenure security issues outside of the scope of application of the ESTA Bill that also needed to be considered as a matter of urgency. While certain allegations had been made or repeated, it also needed to be emphasised that government would need to keep a far more reliable database of evictions if the process was to be managed more responsibly and in an evidence-based manner, through the proposed legislation.
A further point of general comment pertained to the general vagueness in a number of areas of the Bill. These should be clarified, either in the Bill directly, or through the promulgation of regulations that specifically provided clarification on these matters. Such regulations would need to be gazetted for public comment to ensure a fully consultative approach. An example of the clarification that was required pertained to the whole mediation process that needed to precede any court process, as well as the legal representation that was required for occupiers.
Clause by Clause comments
Clause 1: amendments of section 1: Definitions
The definition of “family” was essential, both from a legal perspective, as well as from the perspective of the landowner, so that there would be absolute clarity and certainty as to which persons were regarded as family members of the occupier. “Family” needed to be defined clearly in the Act.
“Subsidies” had been substituted in Section 4 with the words “tenure grants”. The words “tenure grants” were open to broad interpretation, and Agbiz recommended that the words “tenure grants” be clearly defined within the Bill so as to provide certainty as to their meaning.
Clause 2: Amendments of section 4: Subsidies
Agbiz welcomed the provision and introduction of tenure grants, as the lack of implementation of section 4 of the Act, which provides for long term tenure security both on-or-off farm, was in the most part due to a lack of dedicated funding by government. Such funds needed to budgeted for specifically in the Department’s annual budget.
Furthermore, clause 2( c) (d) reads “… to enable occupiers and former occupiers to…” By including former occupiers, this extended the scope of ESTA and made it very broad indeed. There was no timeframe or qualification as to who fell within the scope of a former occupier, and this placed an enormous burden on both landowners and the State alike. In some instances, a property may have been sold a number of times and a historic eviction of an occupier may have been affected and not disclosed to a purchaser, as it had not been material to a contract of purchase and sale at the time. The current owner of a property may not have purchased the property had this material fact been disclosed. Current owners of affected properties would therefore be unfairly prejudiced if the words “former occupiers” were added to this section of the Bill.
Agbiz recommended including that former occupiers had the right of access to a tenure grant or alternative accommodation, which was to be provided by the state on a definitive qualification basis, ie the right of access to a tenure grant or alternative accommodation was limited to a specific period.
Clause 3: Amendments of section 6: Rights and duties of occupier
Agbiz supported the rights of lawful occupiers to take reasonable measures to maintain their houses, provided that maintenance did not extend to the expansion or erection of new dwellings, as this may impose a liability on the landowner. In most cases the landowner would maintain the farm workers’ houses on the farm. However, on some farms, occupiers lived in houses that were not built by the farm owner. While landowners had a maintenance duty where housing was provided as a condition of service to a worker, or where they leased out the housing, this duty may not exist in situations where there was no employment or landlord and tenant relationship. This needed to be recognised and provided for in the Bill.
The reason occupiers could not be allowed to add or build on to existing houses without the permission of the landowner under the guise of maintenance, was that it could result in the landowner incurring liability. Building regulations were applicable to the buildings on farms, and the landowner was responsible to ensure that these were complied with, failing which he would incur liability. While Agbiz submitted that this was in all probability not the intention of this clause, it should however be clarified so as to avoid unintended consequences. Maintenance should be limited to essential aspects, such as fixing water pipes, leaking roofs, cracks and any such actions, with prior notice to the landowner. Agbiz thus would welcome the provision provided, that it was qualified to better reflect the real intention.
Clause 4 : Amendments of section 9: Limitation on evictions.
Agbiz is totally opposed to the insertion of clause 4(1) (b), as this was a duty that resided fully with the Department, and it was currently dealing with this through the Land Rights Management Facility. Agbiz fully recognised the right of occupiers to legal representation, but this could not be made a pre-condition for eviction. The wording of this clause limited the jurisdiction of the court in a situation where government departments failed to comply with the responsibility placed on them by the Courts, and this would then be to the detriment of the landowner. This made no sense from a jurisprudence perspective, and needed to be corrected. In addition, there was no provision in the constitution which guaranteed or enforced legal representation in a situation such as this, and the courts could not and should not be barred from exercising their discretion merely because an occupier was not legally represented. Agbiz was strongly of the opinion that this provision was an unjustified limitation on the rights of the landowner.
Clause 5:amendments of Section 10: order for eviction of person who was an occupier on 4 Feb 1997
The word “or” should be changed to “and” to make this clear, as the onus should be on both parties to seek a resolution to their dispute. In addition, and as previously stated, Agbiz fully supported the principle of mediation, but a set timeframe should be included in the Bill so that the eviction process was not unduly delayed by unsuccessful attempts at mediation.
In terms of the clause “… was satisfied that the circumstances surrounding the order for eviction was of such a nature that it could not be settled by way of mediation or arbitration,” the wording was problematic, as an arbitrator may not make a binding decision in favour of the landowner, where such landowner wished to evict an occupier. Section 26(3) of the Constitution clearly stated that “no one may be evicted from their home or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”. This section of the constitution clearly states that an eviction order could only be made by a court, not an arbitrator. Thus, unlike meditation, arbitration was by its very nature binding, so should a dispute regarding a threatened eviction be referred to arbitration, the arbitrator would be able to rule only in favour of the occupier, as the opposite would in fact amount to an eviction, which an arbitrator was not constitutionally authorized to do. This in itself would violate the audi alteram partem rule. So while the parties could still attempt to settle the dispute through a non-binding mechanism such as mediation prior to approaching a court, the role of an arbitrator in such a dispute was, in the opinion of Agbiz, redundant. It therefore suggested that the words “or arbitration” be removed.
It was recommended that mediators be appointed only from the independent Mediation Service of South Africa, so as to maintain mediation as a specialist occupation. In order to attract experienced and professional mediators, they would have to be remunerated fairly and the Department would have to budget for this. The appointment of mediators needed to be expedited as soon as possible, so as to not unnecessarily delay the process. The Bill also needed to clarify the issue of who would initiate the mediation, as well as who would carry the related costs. It was the opinion of Agbiz that the Department should bear these costs.
Clause 7: Amendments of Section 12 – further provisions regarding eviction
This clause was not part of the original version of the bill that was tabled at NEDLAC. Agbiz believed that this particular clause was nonsensical, requiring a court to rule on future weather conditions, which were often not at all predictable in the timeframe foreseen. If the date of the eviction was determined to take place two or three months from the date of judgment, the court would in no way be able to know what weather conditions would prevail on that day. It was simply not practical to impose such a function on the court. Agbiz was of the opinion that such a clause in the Bill should be scrapped.
In conclusion, it was noted that the Department was in the process of finalising the socio-economic impact assessment, and that the estimated financial implications that this Bill would have were wider than just the financial implications for the state. Both landowners and mortgagers alike would experience a dilution of their properties, and therefore this Bill would have negative financial implications for such parties from a resale perspective -- for properties where landowners were unable to provide prospective buyers with vacant possession and full beneficial use of the property. Agbiz therefore recommended that the socio-economic impact assessment for this Bill included the financial impact on other stakeholders as well.
Agbiz was of the opinion that the Bill in its current form prejudiced and infringed on the rights of landowners. As a result, the State could expect landowners and/or holders of real rights to challenge the more onerous sections within this Bill which were deemed to be prejudicial, in the courts, including the Constitutional Court. Agbiz did not believe that it was in the interest of taxpayers, nor the State, for this Bill to be enacted without the recommended amendments being implemented.
The Chairperson said that if Mr Purchase felt that the Bill infringed on the rights of the landowners, what about the rights of the occupiers, because the presentations talked about two parties? Secondly, if the court took a decision that someone had to be evicted on a specific date, and on that date it snowed, must the eviction continue? It was simple -- the Bill stated that farm dwellers should not be evicted during bad weather conditions. What was his view on this?
Did he not think that the issue of the 30 days’ mediation should be included in the regulations instead of the Bill?
Where the presentation had stated that legal representation must not be a pre-condition of eviction, was that not a bit unfair, as the farm owner could run to court and use legal representation while the occupier would not be afforded that courtesy, and they needed people to speak on their behalf.
The principle Act was being amended to correct some of the challenges that had been experienced since its implementation in 1997. In relation to the clause on maintenance, how did Agbiz expect a family that had moved on to a farm 30 years ago, and that had grown in size, to continue to live in a two-roomed house? Was it beingsaid that even now they were not allowed to extend that house and add another two rooms as may be needed?
Mr Madalla, said that when listening to Mr Purchase and going through the presentation, one could not help but have a feeling that not much concern was shown for the occupiers. It was concerning that an organisation like Agbiz could project an inhuman view on people. One would expect some kind of empathy. Another concern was the issue of the maintenance of the house, as suggested by the presenter. He felt that those responsibilities were those of the farmer, and one would have expected that as a voluntary organisation that assisted farmers in making sure that their businesses were profitable, it would have considered more humane recommendations.
Mr Filtane stated that the presentation had said much about the land being used as collateral, and that any dilution of property rights would undermine the capacity for agrifood production. How did Agbiz synchronize the two statements because the latter sends the message that Agbiz did not want to share the land, and in the preceeding paragraph, it says that the function of Agribiz was to also play a constructive role in the country’s shared economic growth and transformation. He could not find that the two statements were speaking to one another. It seemed to him that Agbiz was more concerned with those who already had the land being able to keep it to themselves.
Property ownership in South Africa was severely compromised, and here it seemed that Agbiz was saying that former occupiers should not be part of the progress. It looks like, for certain parts of the population, Agbiz was saying they could stay poor with no pension, no sharing of the land and no transformation, because the moment it shared the land with them it would dilute the property portfolio of South Africa and food production would be compromised. It looks like Agbiz would be happier if food production was reserved for a certain sector of the population.
Mr Mnguni said Agbiz had talked about ESTA being a controversial piece of legislation, and asked if Agbiz felt that before ESTA there had been no problems. Its introduction stated that Agbiz had a major interest in ensuring that property values were entrenched in the framework of the country and went further to say warn against any dilution of property rights. Did this mean Agbiz considered the property regime in South Africa was perfect? In terms of social policy, did Agbiz think that South Africa would be a prosperous and comfortable society where property rights were simply not diluted? So that those who have must continue having, and those who have nothing must continue to have nothing?
Agbiz had stated that while evictions were an emotive, sensitive and distressing action, it had to be acknowledged that evictions in certain circumstances were necessary within the framework and warranted. What circumstances were those?
When Agbiz had referred to the rights and duties of occupiers under the term, “guise of maintenance ,“ it was not a guise -- it was people trying to ensure that they lived in habitable places
The issue of legal representation not being made a prerequisite -- was Agbiz saying that these people should be evicted without legal representation? Was this the dispensation the organisation wished for South Africa? In other words, kicking and screaming, they must be evicted?
Mr Purchase responded by stating that Agbiz did support the Bill fully, except for those issues that had been raised. Agbiz was not against the Bill. In principle, it supports the need for farm labourers and occupiers to be protected against illegal evictions in terms of the Prevention of Illegal Evictions Act, so there had been a misunderstanding to a large degree. Agbiz was not insensitive to farm workers. He himself was very sensitive to their situation. Agbiz strongly believes in transformation and drives it, but perhaps it had a different idea of what that transformation was. It believed in broadening property rights to previously disadvantaged people. If one looked at property rights, the stronger the property rights were in a country, the wealthier that country was. The idea of shared property rights did not work well, and there were many studies that reflected Agbiz’s senitiments as to why it was not a good idea. Shared property rights did not bring investments. Agbiz wanted to broaden property rights and give title deeds to people who rented houses in townships, for example. Land owners versus occupiers’ rights -- there had to be a balance of rights between the land owners and occupiers. Agbiz had clearly said that it was a two-way street and that labourers should be protected from illegal evictions.
Regarding the clause on the weather, Agbiz understood the arguments and thought that one must try and word it better. He agreed that if the weather was bad, one could not effect the eviction order, but then the order must have an extension period that stated the number of days from when the order was given, that the occupiers had to move out, so that people could plan their move.
On the issue of the mediation, and the 30 days, he agreed that Agbiz would need to look into the regulations. It just thought that there should be some kind of limit as to where mediation could take place and when a matter needed to go to court.
On legal representation, Mr Purchase said there might have been a misunderstanding -- that Agbiz was trying to withhold legal representation, which it was not. The law made provision that everyone was entitled to legal representation, and even if one was charged for murder, that person could represent himself. Agbiz was therefore saying that legislation could not make it a prerequisite that a worker had to be represented, if that person wants to represent himself in such a case. One could not prohibit that person. What Agbiz was saying was that the legal situation in south Africa made provision for one to represent oneself.
Regarding the extension of homes, the point that Agbiz was trying to make was that occupiers could not just arbitrarily start adding on to the house that they had. Farmers also had to submit plans to the municipality for approval. Further, if people just start adding to the homes without approval, then the property owners became liable for that. All Agbiz was saying was that there must be a mechanism that if these buildings were built, that this must be subject to the normal practice of submitting one’s plans.
The family definition was a very difficult one, because where did one draw the line in terms of what was considered to be a family. It was very difficult to say, and from a cultural point of view it was very different to that of a European or western definition.
Agbiz did not want to be considered “inhumane,” and believed that what it had presented had been a balanced view. It had tried to look at the other side, and that was why it had stated that it had looked at the principles and the legislation too.
On the issue of the food and the synchronized statements, Agbiz had said that the agrofood system in South Africa was built on property rights that allowed one to collateralise property rights that were owned. A production notice, which was what the farmer got, states that he could produce and then repay the loan, and that was the farm debt that he had mentioned earlier. Once property rights were significantly compromised, it became very difficult for a lender to lend money to a farmer, because the value of that property gets compromised. This means that if the value is compromised, then the value of the loan is compromised, and then the ability to lend money to produce sufficient food is compromised in the process.
He thought the statement that Agbiz did not want to share the land was very broad. The land could be shared, but not the property rights. The land could be shared in the broader context and not shared on a parcel land that had a title deed. That concept was what one needed to understand about land.
Under the current dispensation and under the current Act, there were many circumstances that warranted evictions. It was common knowledge that there were certain instances where occupiers who no longer worked on the farm were evicted for some or other reasons. There were currently legal reasons for evictions, and he believed that they would be the same in the future.
The ECTA was controversial for two reasons, partly because of poor implementation which had caused a lot of friction and tension, but also because of the question as to whether it served the purpose it was meant to serve. That was what made it controversial.
The meeting was adjourned.
- Extension of Security of Tenure Amendment Bill [B24-2015]: stakeholder consultative meeting day 1 - part 2
- Extension of Security of Tenure Amendment Bill [B24-2015]: stakeholder consultative meeting 3
- Extension of Security of Tenure Amendment Bill [B24-2015]: stakeholder consultative meeting day 1 - part 1
- Institute for Poverty, Land and Agrarian Studies submission
- Kwanalu submission
- Land Claims Court submission
- Tau SA submission
- International Labour Organisation submission
- Congress of South African Trade Unions (COSATU) submission
- Congress of South African Trade Unions (COSATU) presentation
- Agri South Africa (AgriSA) submission
- Legal Resources Centre (LRC) presentation
- Agricultural Business Chamber (Agbiz) presentation
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.